Press Release

| September 1, 2009

Dewey & LeBoeuf Files Amici Curiae Brief on Behalf of Patient Rights Organizations in ACLU’s Case to Invalidate Patents on Human Genes

(Silicon Valley, September 1, 2009) - A team of Dewey & LeBoeuf litigators filed a pro bono amicus brief on behalf of several non-profit patient rights organizations that support patients affected by diseases linked to person's genetic code:

  • March of Dimes Foundation
  • Canavan Foundation
  • Claire Altman Heine Foundation
  • Massachusetts Breast Cancer Coalition
  • National Organization for Rare Disorders
  • National Tay-Sachs & Allied Diseases Association

Patient rights organizations are concerned with the fact that today, approximately 20 percent of all human genes are patented. Aggressive enforcement of these patents degrades healthcare by making it impossible for a patient to obtain a second opinion and by suppressing any future research and development into genetic-related diseases and susceptibility to such diseases. On the extreme end, a patient cannot obtain any diagnosis because of the exorbitant costs and a patent owner’s refusal to accept insurance, or because of a patent owner’s lack of interest in commercializing tests for rare genetic variants.

Dewey & LeBoeuf’s brief directly attacks the validity of such patents, arguing that they are unconstitutional as they do not “promote the progress of science and useful arts” as intended by U.S. Const. Art. I, § 8, cl. 8, and are contrary to the Patent Act of the 1952 and the Supreme Court precedents as directed to unpatentable products and laws of nature.

The brief is filed in the high-profile American Civil Liberties Union (ACLU) attack on so-called "gene patents." Ass’n for Molecular Pathology v. US PTO, 09 Civ. 4515 (RWS) (S.D.N.Y. May 12, 2009). The ACLU sued the US PTO and Myriad Genetics for issuing and enforcing patents on DNA sequences of genes associated with hereditary forms of breast and ovarian cancer, and correlations between those sequences and the likelihood of getting such cancers. The defendant company and the USPTO are moving to dismiss the case for lack of standing and ACLU is moving for summary judgment.

Our team includes Partners Barbara Caulfield, Michael Malecek and Counsel Stephen Holmes, all from the Silicon Valley office, and Associate Mark Shtilerman, in the New York office. Lawrence Sung, partner in the DC office, commented on the brief. The brief was filed with a fantastic support from Judith Strigaro, Richard LaRosa, George Sykes, Debra Senior and Randall Morrison for the managing lawyer’s office, and Norma DeMaCarty, Leanne Clement, Sue Hanlon and Dianne Meek from the Silicon Valley office.

For more information, please read the brief.

This memorandum is intended only as a general discussion of these issues. It is not considered to be legal advice. We would be pleased to provide additional details or advice about specific situations. For additional information on this important topic, please feel free to call upon your Dewey & LeBoeuf relationship partner. No part of this publication may be reproduced, in whole or in part, in any form, without our prior written consent. For further information on Dewey & LeBoeuf, please visit www.dl.com. +1 888 532 6383