Patents on two human genes linked to breast and ovarian cancers are being challenged in court by the American Civil Liberties Union, which argues that patenting pure genes is unconstitutional and hinders research for a cancer cure.
“Knowledge about our own bodies and the ability to make decisions about our health care are some of our most personal and fundamental rights,” said ACLU Executive Director Anthony D. Romero. “The government should not be granting private entities control over something as personal and basic to who we are as our genes.”
The ACLU, joined by Yeshiva University’s law school, filed the lawsuit Tuesday in U.S. District Court in southern New York against the U.S. Patent and Trademark Office, Utah-based Myriad Genetics and the University of Utah Research Foundation.
The ACLU contends that patenting the genes limits research and the free flow of information, and as a result violates the First Amendment. The lawsuit also challenges genetic patenting in general, noting that about 20 percent of all human genes are patented — including genes associated with Alzheimer’s disease, muscular dystrophy and asthma….
Of course, hindering the free flow of information is not always unconstitutional (though I’m not a lawyer), or unethical. Sometimes the flow of information, and the conduct of commerce, are limited in order to protect rights (e.g., privacy rights) and to promote human wellbeing. So this case presumably hinges on whether the ACLU & its co-plaintiffs can convince the court that, in the case of gene patents, what we typically see is information-hindering that doesn’t produce a net social benefit.
Art Caplan has a useful commentary, at MSNBC: Do DNA patents spur science or stifle it? Both.
As Caplan points out, it’s a hugely important case, even if it’s unlikely to succeed.