The ACLU is arguing that Myriad Genetics’ holding a patent on two genes associated with various forms of cancer, BRCA1 and BRCA2, is not a legal use of the patent process.

I got some training in engineering schools on patents, and it was always made clear to us, by our non-lawyer professors, that a patent was for an invention, not a discovery, and it seems to me that these genes are the latter, not the former, but I’m an engineer, not a lawyer, dammit!^*

Among other things, they are arguing not just that the patent should not have been granted, and I agree with that, because at its core IP is an infringement on every one’s rights in order to, “To promote the Progress of Science and useful Arts,” as it says int he constitution, and it is clear that by patenting a gene, they are not doing this.

Additionally, the ACLU is saying that the way that Myriad is violating the first amendment:

As the A.C.L.U. explored the restrictions on competition that companies like Myriad had put in place — blocking alternatives to the patented tests, and even the practice of interpreting or comparing gene sequences that involved those genes — the restrictions started to look like not just a question of patent law, Mr. Hansen said, but of the First Amendment’s guarantee of free speech as well.

I’m not sure if that would fly, since, after all, IP has at its core the restrictions of the rights of everyone for a perceived public benefit.

As to the reason as to why the patent examiners approved it?

The decision to allow gene patents was controversial from the start; patents are normally not granted for products of nature or laws of nature. The companies successfully argued that they had done something that made the genes more than nature’s work: they had isolated and purified the DNA, and thus had patented something they had created — even though it corresponded to the sequence of an actual gene.

This is bullsh%$. They are arguing that they can patent a discovery, because it’s hard work.

Here’s hoping that they win, because the current patent regime in the US is hamstringing economic development and innovation in our society, which is the exact opposite of its intended purpose.

^*I LOVE IT when I get to go all Doctor McCoy!!!