The Plaintiffs allege that because human genes should not be patented. Hardly something that anyone can argue. The only trouble is that this is not what the US Patent Office allows, and it is not what Myriad Genetics has been granted a patent on. Nevertheless, the frivolous ACLU lawsuit that seeks to use the US Constitution to declare patent claims invalid is allowed to proceed regardless of the facts and in spite of there being no justifiable statutory theory for the plaintiffs to purse. Instead, Judge Sweet is allowing the plaintiffs to cite generalized Constitutional harm, in direct and open violation of well establish standing principles. They seek to challenge patents because they want others to be able to use the Myriad Genetics techniques for free and without paying. They claim that patents control thoughts, and therefore violate the First Amendment. How ridiculous!
Under this rational no patents are Constitutionally justified and we should simply stop issuing patents. Better yet, by this decision by Judge Sweet sets precedent for anyone who doesn’t like patents or wants to use a patented technology to file a lawsuit claiming some unidentified, non-existent Constitutional rationale for invalidating patent claims. For those who hate patents now is your chance to run to the Southern District of New York and file a lawsuit seeking to invalid patent claims. Judge Sweet obviously doesn’t read the patent claims, at least not on a Motion to Dismiss, so you should be able to survive through to Summary Judgment. So lets all race to Judge Sweet’s courtroom with frivolous complaints and cause the entire patent system to grind to a halt, killing the US economy in the process! You better act fast before the Courts or Congress react. Be sure to ask for Judge Sweet by name at the time of filing!
Can you tell I am fired up? I am and the assaults on the patent system and war on the private sector need to stop here and now. There will be no end to the challenges filed against all patents now because by its very nature a patent grants an exclusive right. Never mind that the same Congress who included the Intellectual Property Clause to the US Constitution (i.e., Article I, Section 8, Clause 8) also included the First Amendment. Do you think our founding fathers did so knowing that the granting of patents specifically authorized by the IP Clause would violate the First Amendment? I don’t know, they were awful bright men. I cannot imagine they would have done something so carelessly stupid. I also cannot imagine the conservative majority of the US Supreme Court would ever rule that patents violate the First Amendment. Call me crazy, but I don’t see Justices Scalia, Thomas, Alito and Roberts finding that persuasive. I also cannot imagine Justice Kennedy would accept such a radical proposition, and Justice Sotomayor is known to believe strong intellectual property rights are a good thing, which shouldn’t be a surprise given she was once married to a prominent patent attorney. So this case will not end good for the ACLU, we all know that. Nevertheless, that attacks on innovators and the patent system are increasingly ridiculous. Someone needs to stand up and say the Emperor has no clothes, and I am happy to oblige.
Judge Sweet in his opinion stated the plaintiff’s position as follows:
According to the Plaintiffs, these genes exist as naturally occurring products of nature, and Myriad did not invent, create, or in any way construct or engineer the genes. Rather, Myriad located them in nature and described their informational content as it exists and functions in nature. According to the Plaintiffs, Myriad did not invent, create, or in any way construct the differences that may be found when a patient’s BRCA1/2 gene sequences are compared to the normal BRCA1/2 gene sequences or the correlations between certain mutations in BRCA1/2 and an increased risk of breast and/or ovarian cancer.
Later Judge Sweet again picked up on this, saying:
The Complaint further alleges that the information encoded in the BRCA1/2 genetic sequences, rather than being the result of an inventive process, exists in nature. -See Compl. ¶¶ 34, 46, 51, 55-60. The Complaint also alleges that the existence of certain mutations in BRCAI/P and their correlation with an increased risk of breast and/or ovarian cancer constitutes nothing more than a naturally occurring phenomenon. -See Compl. ¶¶ 61-80. Based on these factual allegations, the Plaintiffs assert that the patents-in-suit grant Myriad ownership rights over products of nature, laws of nature, natural phenomena, abstract ideas, and basic human knowledge and thought in violation of the First Amendment’s protections over freedom of thought. Compl. ¶¶ 52, 54. In addition, the Plaintiffs assert that Myriad’s ownership of correlations between certain BRCA1/2 mutations and an increased risk of breast and/or ovarian cancer has inhibited further research on BRCAl/P as well as genes that interact with BRCAl/Z. See, e.g., Compl. ¶¶ 96-98, 101. As a result, the patents-in-suit are alleged to violate Article I, section 8, clause 8 of the Constitution which directs Congress to “promote the Progress of Science and useful Arts . . . .” Compl. ¶¶ 52, 54.
The facts alleged in the Complaint are plausible, specific, and form a sufficient basis for Plaintiff’s legal arguments. Consequently, the pleading requirements as set forth in Iqbal are satisfied.
The only trouble is Judge Sweet is wrong and it is obvious that he did not read the claims in question. This is obvious because had he read the claims in question it would be obvious in light of the US Supreme Court ruling in Diamond v. Chakrabarty that there is in fact sufficient innovation to result in a patentable invention. In Diamond v. Chakrabarty the Supreme Court recognized that human intervention is all that is required to alter something from its natural state into a state made by man. Had Judge Sweet read Diamond v. Chakrabarty and read the patent claims in question he could not have possibly issued this ruling unless he was engaging in judicial activism to forward his own personal beliefs and agenda.
US Patent No. 5,693,473 is being challenged, and claim 1 states (in relevant part):
1. An isolated DNA comprising an altered BRCA1 DNA…
US Patent No. 5,709,999 is being challenged, and claim 1 states (in relevant part):
1. A method for detecting a germline alteration in a BRCA1 gene…
US Patent No. 5,710,001 is being challenged, and claim 1 states (in relevant part):
1. A method for screening a tumor sample from a human subject ….
US Patent No. 5,753,441 is being challenged, and claim 1 states (in relevant part):
1. A method for screening germline of a human subject…
US Patent No. 6,033,857 is being challenged, and claim 1 states (in relevant part):
1. A method for identifying a mutant BRCA2 nucleotide sequence…
You see, had Judge Sweet actually looked at these patent claims in question there is absolutely no way he could have reached this decision. There is simply no way that anyone who is being fair, honest and impartial could find the facts as alleged by the plaintiffs to be “plausible,” yet that is what Judge Sweet did.
Allow me to state the obvious at the risk of being vilified for being correct. Isolated and altered DNA does not naturally occur. Methods for detecting, screening and identifying do not naturally occur. Diagnostic methods and screening techniques are carried out by people, and the presence of a human actor makes these claims patentable under Diamond v. Chakrabarty. That is the law, and filing a lawsuit and having an activist judge ignore the law does nothing but impose unjustified and unwarranted costs on those who can read, understand the law and know what it means.