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.”
“What’s in a name (or an abbreviation)?” Apparently everything. According to the ACLU, the molecule AGGTTA is no different from the molecule TGGAGGTTAGGG, which has two extra (make-believe) codons, if both sequences occur in the genome of an organism. But the facts are that that DNA molecules are often described in terms of their structural formulae and that the AGGTTA subunit is indeed a different molecule than GGAGGTTAGG, and it has a different name. If you haven’t taken a look at a DNA molecule lately, dust off “Recombinant DNA” by James D. Watson et al. (2d ed. 1992) and look at Figure 5-5. Does that help make it real? How about Harper’s Biochemistry (23d ed. 1993) at page 379 (Fig. 37-1). Or check out the 2008-2009 Sigma catalog at page 1932, or B. Lewin, “Genes V” (1994) at page 88. (Sorry, my younger partners keep pulling reference books off the shelf and setting them on my desk.)
The ACLU might also note (or perhaps Myriad will), that single letter amino acid codes have been used for decades to designate peptides, e.g., AAAGGQQLL. Have I converted a perfectly concrete oligopeptide into a mathematical formula or worse, into pure information, disembodied from actual covalently-bonded atoms? What if I use three-letter amino acid abbreviations? Is that only partly abstract? Well, I don’t mean to get overly flip about the reality of chemistry, but the ACLU is beginning to sound like the organic gardeners who argue that their tomatoes are “free of chemicals.” Then, just what do they contain? Pure information for your BLT, of course.