Last summer, we reported that the ACLU and the Public Patent Foundation (PUBPAT) were mounting a creative challenge to the constitutionality of gene patents, a questionable practice which till now was supported by U.S. Government policy.  The US Patent and Trademark Office has regularly granted property interests in certain types of living organisms and their constituent parts, including genes, the building blocks of human life.

The First Amendment issue in this case, Association for Molecular Pathology, et al. v. U.S. Patent and Trademark Office, et al., isn’t immediately obvious; it arises from claims that the patents granted to the private companies (which gave them exclusive control over testing for mutations in the BRCA1 and BRCA2 genes) suppress scientific research and information. The plaintiffs include patients denied access to information about their own genetic make-up (because they couldn’t afford the stiff test fees charged by the patent owners), and scientists precluded from doing their own independent testing on the genes.

NY Southern District Judge Richard Sweet ruled in the plaintiffs’ favor on the basis of patent law; his ruling didn’t reach the First Amendment arguments. But because the ACLU’s lawsuit challenges the whole notion of gene patenting, its outcome could have far-reaching effects beyond the patents on these genes. Approximately 20 percent of all human genes are patented, including genes associated with Alzheimer’s disease, muscular dystrophy, colon cancer, asthma and many other illnesses.

The March 29 decision can be found here.