Patent Challenge

New Zealand patent lawyer Professor Yvonne Cripps, who is now based in London, was recently a guest on the BBC World’s radio programme The Forum discussing the patenting of genes and whether “we really do write the story of our own lives”. Cripps explains: “One of the most recent developments has been a case in the US where the American Council for Civil Liberties has joined with various medical groupings and surgeons to challenge a company called Myriad Genetics, which has patents over the breast cancer genes, BRCA1 and 2. What makes the current case very interesting is that the patents are being challenged not just because they’re invalid in traditional patent law terms as being obtained over discoveries and not inventions — that would be grounds for challenging patent law — but they’re being challenged on the grounds that they’re unconstitutional. Unfortunately, the case has only got to its lowest level so far, there hasn’t yet been an appeal, but the plaintiffs won in the challenge against the breast cancer genes at that lowest level.” This is a result that was not expected by patent lawyers and a result Cripps has long hoped for. Cripps is a part-time professor at Indiana University School of Law.