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The Boston Patent Law Association joined about 30 scientific, industry and other organizations by filing a rare district court-level brief in a controversial New York federal case involving patents for genes linked to cancers that affect women. The association filed its amicus brief in the Southern District of New York case Association for Molecular Pathology v. U.S. Patent and Trademark Office on Jan. 13. The case is colloquially called American Civil Liberties Union v. Myriad because the ACLU represents the plaintiffs, and diagnostic test maker Myriad Genetics Inc. owns the patents at issue. In early November, Judge Robert Sweet denied a motion to dismiss the case, which challenges seven patents related to the human genes BRCA1 and BRCA2. Mutations of the genes are linked to breast and ovarian cancer. Both sides have pending summary judgment motions. The plaintiffs claim that the patents at issue cover “products of nature” and that Myriad’s enforcement of them have hampered genetic research and their efforts to obtain ovarian and breast cancer treatment, which violates their First Amendment rights. The Boston patent association, like other legal intellectual property groups, usually saves its amicus firepower for appellate level litigation but the policy questions were important enough in this case to make an exception, said Erik Belt, a Boston intellectual property/information technology partner at Newark, N.J.-based McCarter & English who co-chairs the association’s amicus committee. “We want to make sure that the policy of promoting patents and strengthening patents, which will have the effect of strengthening the economy and public health and welfare, is heard,” Belt said. The Boston patent association’s main arguments are that limiting patents restricts innovation and that gene-related patents are legally patentable. Belt said the association wants to ensure that arguments about the overall importance of patents don’t get lost when the court hears testimony from sympathetic individuals and academic researchers who say Myriad’s patents prevent them from doing research in this area. “Without a patent, a company would not risk the huge investment and thus nobody would benefit from the technology,” Belt said. “We want to make sure that the policy view was heard. A court is going to be focused on the individuals in a case.” The Boston patent association also wants to rebut the “oversimplification to say that DNA is being patented.” “Our position and the position of Myriad is that what’s being patented is practical applications or the uses of genes, not the genes themselves,” Belt said. From a technical legal viewpoint, it’s no different from patenting a chemical, he said. Aside from the Boston patent organization, the case’s 30 amici run the gamut from scientific and industry groups like the American Society of Human Genetics and the American Medical Association, which both take positions in support of the plaintiffs, and the Biotechnology Industry Organization, which stands on the same side as Myriad and the Boston group. Other types of groups that have also weighed in include private companies like diagnostic products maker Celera Corp., which weighed in by supporting Myriad’s right to the patents, and universities like George Mason University, which has a pending motion asking the court for leave to file an amicus brief.

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