Page 11 - T-I JOURNAL19 4

Technology and Innovation, Vol. 19, pp. 659-670, 2018 ISSN 1949-8241 • E-ISSN 1949-825X
Printed in the USA. All rights reserved. http://dx.doi.org/10.21300/19.4.2018.659
Copyright © 2018 National Academy of Inventors. www.technologyandinnovation.org

THE CHALLENGE TO GENE PATENTS
AS FEMINIST PATENT LITIGATION

Sandra S. Park
American Civil Liberties Union, New York, NY, USA

This article examines the effort to invalidate the patents on the BRCA1 and BRCA2 genes as
a path-breaking example of patent litigation aimed at advancing women’s rights. Association
for Molecular Pathology v. Myriad Genetics was brought as a challenge to the practice of
human gene patenting informed by feminist principles. The lawsuit contesting the patents on
the genes—most known for their connection to hereditary risk for breast and ovarian can-
cers—asserted the importance of women’s experiences in assessing whether isolated human
genes could properly be considered “inventions.” It thus highlighted women as stakeholders
and agents for change while also deploying feminist analytical methods to shed light on the
meanings and implications of seemingly neutral law and policy.

Key words: Gene patent; Patentable subject matter; Feminist legal theory

This article examines the effort to invalidate The litigation built on two interrelated feminist
the patents on the BRCA1 and BRCA2 genes as a projects: the first focusing on women as stakeholders
path-breaking example of patent litigation aimed at and agents for change and the second on deploy-
advancing women’s rights. Association for Molecular ing feminist analytical methods to shed light on the
Pathology v. Myriad Genetics was brought as a meanings and implications of seemingly neutral law
challenge to the practice of human gene patenting and policy. What was the impact of these patents on
informed by feminist principles (1). The lawsuit con- women’s lives, and could a case be brought rooted in
testing the patents on the two genes—most known these experiences? What economic, regulatory, legal,
for their connection to hereditary risk for breast and and scientific interests were served and undermined
ovarian cancers—asserted the importance of women’s by these patents? What shifts could be achieved in
experiences with patents in determining whether law and policy to change the status quo?
isolated human genes could properly be considered The first section of this paper briefly lays out
“inventions.” Any inquiry into the gender gap in the backdrop for the litigation and its progression
invention should not only examine the representa- through the courts. Gene patents were controversial
tion of women among patent owners but also assess long before the lawsuit was brought, but it was this
the impact on women when patents are granted. case that galvanized the attention of the judiciary,

_____________________
Accepted: March 1, 2018.
Address correspondence to Sandra S. Park, Senior Attorney, c/o ACLU, 125 Broad St. 18 Floor, New York, NY 10004, USA. Tel: (212) 549-2644.
th
E-mail: spark@aclu.org

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