As a follow up to yesterday’s post on the ACLU’s gene patent case, several organizations have filed amicus briefs in support of the plaintiffs’ position.
March of Dimes Brief
The March of Dimes and several other organizations filed a brief where they argue that the patents improperly remove natural phenomena and laws of nature from the public domain, and that the patents upset the balance struck by Congress and the courts as to what constitutes patentable subject matter. They also argue that the patents harm research and innovation, as well as patients who require genetic testing. Although it is difficult to tell from the brief, it appears that this argument is that the patents are invalid under § 101 of the Patent Act and Supreme Court precedent intrepreting this section.
American Medical Association Brief
The American Medical Assocation (AMA) and several other organizations filed a brief where they argue that gene sequences and correlation claims are not patentable subject matter under the Intellectual Property Clause of the Constitution and § 101 of the Patent Act. They also argue that such patents violate medical and scientific ethical tenets and are not necessary to encourage innovation in the field of genetics. The AMA is opposed to patents and trade secrets on medical and surgical techniques generally.
National Women’s Health Network Brief
The National Women’s Health Network (NWHN) and several other organizations filed a brief where they argue that genes, genetic sequences, and their correlations to various diseases are exceptions to patentable subject matter under the Patent Act. They are products of nature or scientific truths or principles. They also argue that the patents harm patients, particularly women, by stifling access to health care, innovation, and competition.
Finally, they argue that genes are part of the common heritage of humanity. International treaties and the Public Trust Doctrine prohibit their removal from the public domain. The NWHN argues that the human genome is a part of the common heritage of humanity, similar to agreements regarding deep sea beds, Antarctica, the moon, and other celestial bodies. They cannot be exploited by a particular private entity or nation because they belong to all of humanity. Interestingly, despite the argument, the brief does not point to any international treaty that would prohibit the patents at issue in this case.
Many of the plaintiffs’ arguments are policy arguments that are better resolved on the legislative level than by unelected judges. Since they are unlikely to get the resolution they desire from Congress, they fight in the judicial battlefield.
Whatever the outcome, the case has, and will continue to, gain a great deal of press. It may take several years to resolve at the district court and it is unlikely to end there. The Federal Circuit and perhaps the Supreme Court will weigh in before it is resolved.