Monday, May 3, 2010

A Huge Victory for the ACLU

As a member of the ACLU's elite vanguard of activists: the Guardians of Liberty, it delights me no end to acknowledge our latest major court victory, in the ruling: Molecular Pathology et al v. U.S. Patent and Trademark Office- filed on May 12, 2009.

The issue? The noisome habit of large bio-genetic corporations issuing or declaring patents on natural entities - whether human genes, wild species of animals and plants, plant seeds or crops. In the later 2 cases, the multi-national Monsanto has become infamous for its habit of patenting bt-corn and other fare, and then cornering the market on such. They have the market so cornered that farmers are not allowed to simply re-seed their fields without buying the bt-corn or whatever from Monsanto.

In the case referenced in the citation, the U.S. Patent and Trademark Office had granted patents to Myriad Genetics for the exclusive right to perform diagnostic tests on the BRCA1 and BRCA2 genes, which are critical in predicting the likelihood of breast cancer in a woman. The stranglehold control under the patent, in this case, meant that researchers in cancer were prevented from even looking at the genes (say in an electron microscope) without first getting the permission of Myriad. The monopoly on the genes also made it impossible for women to obtain alternative tests or receive a comprehensive second opinion about their results! Meanwhile, Myriad was allowed to charge a high rate for their tests.

In the ruling, the judge declared that all 15 patent claims were invalid, based on the fact that they cover "products of nature and abstract ideas". He wrote partly in his decision:

"The resolution of these motions is based upon long recognized principles of molecular biology and genetics: DNA represents the physical embodiment of biological information, distinct in essential characteristics from any other element found in nature. It is concluded that DNA's existence in an 'isolated' form alters neither this fundamental quality of DNA as it exists in the body nor the information it encodes. Therefore, the patents at issue directed to 'isolated DNA' containing sequences found in nature are unsustainable as a matter of law and are deemed unpatentable subject matter under 35 U.S.C. Sec. 101"

Needless to say, the ruling marked a huge victory not only for the ACLU but all the other subjects with standing, including: approximately 150,000 researchers, dozens of breast cancer and women's groups, individual women, as well as the American Medical Association, the March of Dimes, and the American Society for Human Genetics - all of which filed "friend of the court" briefs.

The $64 question, of course, is whether the ruling will stand, given Myriad plans to appeal. The ACLU itself, in its news pertaining to the decision has already noted its momentous quality - since the lawsuit challenged the whole premise of gene-patenting. Given such control is dear to the heart of bio-genetics corporations, can it stand? Will it stand?

Or will a corporate- hugging, "corporate person" friendly Supreme Court take it on and slam the poor women suffering from breast cancer, like they slammed poor ordinary voters in this country - by awarding preference to money over regular speech in the Citizens' United case.

Many eyes will be watching, and scrutinizing, especially those women who will have to return to tests costing $3,000+ because a patent awards one company an exclusive monopoly on a gene or pair of genes.

Do the conservos on the Supreme Court have a heart at all? Do they have any empathy for the people? Or is it corporations all the way, and damned the rest of us? We will probably see rather quickly.

In the meantime, kudos to the ACLU.

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