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.