On November 30, 2010, the ACLU filed its brief at the Federal Circuit in AMP et al. v. USPTO and Myriad Genetics, Inc. et al. If you have been reading my posts on this suit, you are by now probably tired of reading the same positions repeated over and over by various brief writers and commentators. (My most recent post was on Myriad’s brief, filed October 22d.) There have been more than ten amicus briefs filed for both sides. The Myriad supporters argue that cases like “the adrenaline decision,” Bergy and Chakrabarty indicate that man-made compositions should be broadly patentable, including ones isolated and purified from natural sources that are structurally and functionally distinct from the “native” forms. The ACLU and its supporters cite Funk Bros., American Fruit Growers and the odd 1931 In re Marden CCPA decisions as support that this view would permit patents on gold nuggets panned from a stream or a fallen leaf (see pages 14 and 46 of the ACLU brief for a re-run of this argument) and that DNA is likewise unchanged by isolation from the genome.
However, it is interesting to see how far the ACLU will reach to support its nearly metaphysical argument that DNA is pure information. At pages 42-43, it ratchets up its arguments to the point of scientific absurdity:
“The [Myriad] claims acknowledge that, unlike other chemicals, DNA stores specific information – as dictated by the order of nucleotides – that serves as the blueprint for all of the proteins, cells, and organs that make up the human body. While chemical molecules like water can be described as H2O, HOH, or OH2 because they consist of any two hydrogen atoms and an oxygen atom, DNA is not described according to the sugars and phosphates of its backbone, but by its nucleotide sequence. Because this blueprint is the defining characteristic of DNA and remains the same before and after isolation, isolated DNA has neither a distinctive name, character, and use from naturally-occurring DNA nor markedly different characteristics.”