On May 12, 2009 the ACLU and the (not-for-profit) Public Patent Foundation, filed a lawsuit, charging that patents on two human genes associated with breast and ovarian cancer are unconstitutional and invalid. The lawsuit was filed on behalf of four scientific organizations representing more than 150,000 geneticists, pathologists, and laboratory professionals, as well as individual researchers, breast cancer and women's health groups, genetic counselors and individual women.
The U.S. Patent and Trademark Office (PTO) has granted thousands of patents on human genes – in fact, about 20 percent of our genes are patented. A gene patent holder has the right to prevent anyone from studying, testing or even looking at a gene. As a result, scientific research and genetic testing has been delayed, limited or even shut down due to concerns about gene patents.
"Patenting human genes is counter to common sense, patent law and the Constitution," said Daniel B. Ravicher, Executive Director of PUBPAT and co-counsel in the lawsuit. "Genes are identified, not invented, and patenting genetic sequences is like patenting blood, air or e=mc2."
Two specific genes called BRCA1 and BRCA2 play a big role in preventing breast and ovarian cancers. Normally, these genes act like brakes that help stop abnormal cell growth. However, alterations or mutations can occur in these BRCA genes. When this happens, the genes do not work as they should, and there is a loss of control on cell growth. Certain groups of cells can grow at an abnormally fast rate, and cancer may develop.