In the ACLU v. Myriad case, the ACLU has alleged that the patents involved in the case cover genes found in nature. This statement is so patently (pun intended) false, that the ACLU either purposely deceived the court or is guilty of gross negligence about the facts plead in the case. As Gene points out in his post, Fired up: Challenging the Constitutionality of the Patent Act none of the claims in question cover genes found in nature. These claims are directed to screening, identifying, and isolating the BRCA1/2 genetic sequences. This is not a claim to the gene itself, but methods of screening, identifying and isolating the genes, which are processes not found in nature. This is no different than a patent having claims for screening, identifying or isolating gold. Gold is found in nature, but methods for screening, identifying, or isolating gold are not found in nature and are definitely patentable subject matter. The ACLU either purposely deceived the court when they stated “The patents cover the human genes themselves”, paragraphs 3-4, 55-67, & 102 of the complaint, or showed gross negligence about the facts pleaded in their complaint.
The ACLU used this purposeful deceit to argue that the Myriad patents violate the First Amendment of the Constitution. The court’s ruling that the ACLU’s complaint provides sufficient facts to support the allegation that the Myriad patents violate the First Amendment do not stand up to even the most cursory statutory analysis. The First Amendment states (with emphasis added):
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
The highlighted portions are the parts of the First Amendment in contention in this case. The ACLU plead that the patenting of human genes violates the First Amendment of the Constitution. Even if you believe ACLU’s pleading that the claims of the patents cover human genes, this is insufficient to support a claim that the patents violate the First Amendment. In order for the ACLU’s pleading to support a First Amendment claim, they must plead that Congress passed a law abridging freedom of speech or the press. Unless the ACLU is claiming that patent law violates the First Amendment, this claim is frivolous. An individual patent cannot violate the First Amendment, since it is not a law made by Congress.
Even if the ACLU had plead that Congress passed a law abridging speech or the press, such a pleading would not be plausible on its face. The rights provided with a patent are defined in 35 USC 154 (a)(1), which states (with emphasis added):
Every patent shall contain a short title of the invention and a grant to the patentee, his heirs or assigns, of the right to exclude others from making, using, offering for sale, or selling the invention throughout the United States or importing the invention into the United States, and, if the invention is a process, of the right to exclude others from using, offering for sale or selling throughout the United States, or importing into the United States, products made by that process, referring to the specification for the particulars thereof.
The key portions of the statute are highlighted. The right to exclude others from making, using, offering for sale, selling or importing an invention, has nothing to do with speech or the press. It is clear that Congress did not pass a law abridging the freedom of speech or the press by the enactment of the patent statute.
The ACLU also alleges that the Myriad patents violate the 14th Amendment to the Constitution, which reads (with emphasis added):
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice-President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age,* and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.
No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.
The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.
The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.
I assumed that the highlighted portions are the parts of the 14th Amendment the ACLU alleges were violated by the Myriad patents. No other sections of the Amendment appear to be even remotely related to this case. The ACLU’s complaint does not specifically allege nor plead facts sufficient to show that a State made or enforced a law that abridges the privileges or immunities of citizens of the United States or deprived any person of life, liberty, or property, without due process of law or denied equal protection to anyone. Since the actions of one of the States are not involved in this case, it would be impossible for the complaint to plead a cause of action under this clause of the 14th Amendment. Patent law is federal, it is evident on its face that the 14th Amendment cause of action fails. The fact that the court did not even explore this issue, shows a complete lack of objectivity.
The ACLU should be hit with rule 11 sanctions for bringing this obviously frivolous lawsuit. They either purposely lied about the contents of the claims in the Myriad patents or were grossly negligent with regard to the facts in this case. Their pleading is not sufficient to state a First Amendment case, since they did not plead that Congress passed a law abridging speech. Even if they had a sufficient pleading, it is a matter of basic statutory analysis to show that rights conferred with a patent do not abridge speech or the press. The 14th Amendment cause of action also fails, since the only portions that can possibly be relevant to the present case deal with actions of the States. Patent law is federal law not State law. The obvious errors by the court calls into question its objectivity in this case.
About the Author
Dale B. Halling is a patent attorney and the author of The Decline and Fall of the American Entrepreneur: How Little Known Laws and Regulations are Killing Innovation, due to be release in January 2010.