Picking up on a post from last month, ScienceInsider and others have reported on a lawsuit that may test the validity of gene patents.  The Public Patent Foundation and the American Civil Liberties Union have filed suit against Myriad Genetics, which is the company owning the patents, and controlling the genetic tests, for the BRCA1 and BRCA2 genes that show a predisposition to breast cancer.  Among the allegations is that the monopoly on these genes and the associated diagnostic tests prevents patients from obtaining a second opinion.  Apparently any examination of these genes requires permission from Myriad Genetics, which seems like an overreach of the traditional conception of the protection afforded patent holders.  The consequences to individuals include the inability to have other scientists assess the results of the tests and the influence of these genes on the potential for cancer.  General effects include a chill on research into these genes, and other consequences addressed by Nobel laureate in Physiology or Medicine Sir John Sulston.

It’s unfortunate that the validity of gene patents is going to be tested in this fashion, as I don’t expect this validity to be shaken.  Perhaps it’s a consequence of the deep pockets necessary to participate in a patent infringement case (on either side), but I think some kind of fair use or research exemption arrived at through an infringment action is a stronger legal claim than infringement of free speech.  Since the state of genetic understanding over the last several years has typically exposed more about what we don’t know that what we do know, to restrict access to genes like BRCA1 and BRCA2 appears to cause more harm than good.