Friday, May 22, 2009

Science and the First Amendment

The ACLU lawsuit against Myriad presents a unique and intriguing claim based upon the First Amendment of the US Constitution. I would have never thought of challenging gene patents on these grounds, but it's certainly a "colorable" claim, in my opinion. This means, it sets forth a cause of action, and it should survive a "motion to dismiss" which is Myriad's inevitable reaction to the complaint. So where's the 1st Amendment claim? In the complaint, the cause of action is described:

"all of the challenged claims represent patents on abstract ideas or basic human knowledge and/or thought and as such are unconstitutional under the First and Fourteenth Amendments to the United States Constitution"

So, here's how the First Amendment gets violated: the government prohibits some speech. Now, taking the facts and claims alleged in the complaint as liberally as possible, as the court must do on a motion to dismiss, here's the essence of the First Amendment claim: The government grants a patent, and this patent prohibits certain speech about basic human knowledge or thoughts. If researchers are prevented from doing basic science, investigating breast cancer as the Yale group sought to do until they were harassed by Myriad, then this could be an example. It raises an interesting general problem about science and intellectual property, namely: all monopoly rights to knowledge and its applications are governmental prohibitions on speech. This is not limited to patents that cover "basic human knowledge and/or (ugh) thought." This is literally true. Monopolies stifle speech, and where they are granted by government, they are unconstitutional. Except that I am pretty sure that patent law in general is not about to be overthrown on First Amendment grounds (not that it would necessarily offend me if it were). So this claim is going to be a tough fight. We shall see.


Angelia Stinnett said...

On behalf of every living human, thanks for not only being aware of this issue, but also researching and writing about it.

Maybe I suffer an optimism condition, but I have "faith" good will prevail and once the rainbows and unicorns settle down, human health and well-being will be, at least, equally important as turning a profit.

drkoepsell said...

Thanks for the vote of approval! Always good to see it's not all falling on deaf ears!

Robert K S said...

Prima facie absurd. Patented claims never limit free speech. To infringe a patent claim, one must make, use, sell, or import. None of these can be called "speech" or "ideas".

drkoepsell said...


It's a stretch, as a said, but one that is legally colorable. Remember that the SCOTUS has already held that political donations are a speech right, thus campaign finance reforms have failed for trying to limit free speech. So why is a patent on a basic scientific concept not also a limit on a speech right: the right to pursue basic knowledge about the universe? This is precisely how Myriad's patents were used, to stifle scientific inquiry by scientists, the one at Yale mentioned in this blog and in the lawsuit. So which do you think is a better and more important speech right, the one to give money to a candidate, or the one to pursue scientific truths?

Perhaps you feel that neither is a speech right, but you cannot pick and choose.