Executive Branch Opposes Gene Patents-Initial Impressions

by jeeg 1. November 2010 19:36

The Department of Justice (DOJ) amicus brief supporting the ACLU's position in the Myriad case that isolated genes are products of nature and therefore not patentable is big news and its brief will carry a lot of weight with the court.   


What's more interesting, though, is what may play out outside the courtroom.  The US Patent Office has for 20 years held the opposite position and its a department of the executive branch.  It's unusual and extremely bad policy for two Federal agencies to have opposite positions.  It's entirely possible that the Patent Office could reverse itself at some point depending on how the inter-agency back and forth goes. DOJ is certainly a stronger agency and has the ear of the President.


My contacts at the NIH tell me that the DOJ led this dramatic development and brought other agencies along (US Patent Office excepted apparently). While supporters of the plaintiffs had requested DOJ take a position in the case, no one saw this brief coming as far as I can tell which means someone at DOJ really believes in this issue.  It will be interesting to watch if the agency follows up its brief with any behind the scenes actions. 


Speaking with Congressional staffers, its also possible that the DOJ brief will spur Congress to take more interest in the long moribund Genomic Research and Accessibility Act, sponsored by Congressman Becerra, that attempts to do legislatively what the ACLU is pursuing in the judicial branch.    


One other thing to consider is that the DOJ brief wasnt uniformly supportive of the trial courts decision, arguing it was too broad.  They may be concerned that the courts will go to far and they are willing to throw some forms of patents under the bus to ensure that a broader range of patents remain supported in law.


Jeremy Gruber


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