ACLU files brief in Myriad case

Managing IP is part of Legal Benchmarking Limited, 4 Bouverie Street, London, EC4Y 8AX

Copyright © Legal Benchmarking Limited and its affiliated companies 2025

Accessibility | Terms of Use | Privacy Policy | Modern Slavery Statement

ACLU files brief in Myriad case

The ACLU and PubPat have filed their brief urging the Supreme Court to reverse the Federal Circuit’s decision upholding Myriad Genetics' gene patents

The American Civil Liberties Union (ACLU) and the Public Patent Foundation (PUBPAT) in their brief on behalf of The Association for Molecular Pathology yesterday asked the court to overturn an August 2012 decision by the Federal Circuit. That ruling for the second time upheld Myriad’s patents on the BRCA1 and BRCA2 genes, which can be used to evaluate the risk of breast and ovarian cancer.

The case was decided by the Federal Circuit in July 2011, and a petition was subsequently granted by the Supreme Court and then put on hold pending the outcome of the Court’s ruling on Mayo v Prometheus. In March, the Supreme Court found the diagnostic method patents owned by Prometheus invalid. The Myriad case was subsequently returned to the Federal Circuit, which affirmed its original decision.

In their brief, the ACLU and PUBPAT argued that Myriad’s patents should be invalidated because genes are laws of nature, and therefore ineligible for patent protection under Section 101.

The brief noted that Myriad defends its claims on the grounds that a gene becomes a human invention when isolated, or removed, from the human body.

“Under this rationale, a kidney ‘isolated’ from the body would be patentable, gold ‘isolated’ from a stream would be patentable, and leaves ‘isolated’ from trees would be patentable,” it said.

The brief also claimed that Myriad has given women inaccurate test results, while its patents prevent other laboratories from testing genes to verify the accuracy of Myriad’s data. The petitioners argued that, although not enforced by Myriad, the patents have had a “proven chilling effect on research” relating to the genes.

The ACLU is being represented by Christopher Hansen, Sandra Park, Steven Shapiro, Aden Fine and Lenora Lapidus. PUBPAT is being represented by Daniel Ravicher and Sabrina Hassan.

Myriad is being represented by a team led by Gregory Castanias, Brian Poissant and Laura Coruzzi of Jones Day.

The case should be argued before the Supreme Court in March or April and a decision is expected before June, which marks the end of the court’s term.

more from across site and SHARED ros bottom lb

More from across our site

Paul Hastings and Smart & Biggar also won multiple awards, while Baker McKenzie picked up a significant prize
Burford Capital study finds that in-house lawyers have become more likely to monetise patents, but that their IP portfolios are still underutilised
Robert Reading and Faidon Zisis at Clarivate unpick some of the data surrounding music-related trademarks
China's latest IP litigation statistics and a high-profile hire by O'Melveny were also among the top talking points this week
David Aylen, who spent more than 20 years at Gowling WLG, has joined United Trademark and Patent Services as of counsel in the UAE
Europe is among the most lucrative legal markets for PE firms to bet on, but clients’ reactions will decide whether external investment drives success
Rulings of note covered pre-June 2023 infringements and jurisdiction over non-UPC states, while winners of Managing IP’s EMEA Awards acted in multiple cases
Jason Blair, a former special marks examiner, said Dykema’s Texas presence will help him build deeper connections with clients
Lee Curtis and Rachel Platts at HGF discuss the rise of the ‘intention economy’ and its impact on trademark law
Martin Wintermeier discusses taking a hit for clients, not letting stress get to you, and why being a criminal defence lawyer might have been fun
Gift this article