More Arguing About Human Gene Patents in Court

Earlier this week, the US Court of Appeals for the Federal Circuit heard oral arguments in the ongoing lawsuit challenging the legality of human gene patents. Mounting the appeal were Myriad Genetics Inc. and the University of Utah Research Foundation, who argue that gene patents — prevalent since the 1980s — attract private investment that is crucial for breakthrough health research. The hearing followed a decision in March 2010 by Federal District Court Judge Robert Sweet, who ruled to invalidate seven patents for genes related to breast and ovarian cancer.

The American Civil Liberties Union and the Public Patent Foundation, representing a group of plaintiffs that includes patient advocacy and women's rights groups, researchers, health care workers, and breast cancer patients, pressed their argument that human genes cannot be patented because they are products of nature, not human inventions. This time around, they had the support of a "friend of the court" brief [pdf] filed by the US Department of Justice in September of last year.

The 70-minute hearing attracted an "unusually large crowd" and has sparked considerable media attention, including stories in the Wall Street Journal, Los Angeles Times, International Business Times, and others (1, 2, 3). Most speculate that this appeal is a mere stepping stone and that the most consequential rulings are yet to come, likely from the halls of the US Supreme Courts.

Many have commented on what the case could mean for the future of genetic research, human health, and more broadly for biological patent and intellectual property law general. Jaydee Hansen of the International Center for Technology Assessment and Eric Hoffman of Friends of the Earth have contributed an astute first-hand account of the hearing to Biopolitical Times. They point out that a failure to rule based on lack of standing (a point that came into question during Monday's session) could bring gene patenting onto the radar of federal legislators.

That kind of dodge would likely make it seem that the Justices were unsympathetic to persons with breast cancer and other diseases that are correlated to particular genes. This could help get more Members of Congress interested in fixing the gene patenting problem - something they have left up to the courts until now.

Shobita Parthasarathy published a particularly insightful commentary at Nature noting "the case's positive implications for democratic engagement in the patent system, which could ultimately enhance the social benefits of innovation." She rightfully emphasizes that the public, including "'lay' members of society," patient advocates and development organizations, must be engaged in the patent process if it is to yield socially beneficial outcomes. Parthasarathy observes that the gene patenting case makes it especially crucial to reexamine how imbalances of power have led the patenting system astray from the public interest.

The private ownership of human genes raises many crucial concerns for health, social justice, and the future of the human genome — an entity thought of by many as a "common heritage" shared by all people. This week's hearing, we hope, will be a positive step toward inciting the courts, Congress and other legislative bodies to secure that future for the common good.

Previously on Biopolitical Times:

• Historic Gene Patent Ruling Provokes Cheers and Jeers
• Battle Over Human Gene Patents Builds
• CGS and other groups file brief in support of challenge to gene patents
• Reactions to US Government "Bombshell" against Gene Patents