A judge's decision on motions for a summary judgment or dismissal of a lawsuit involving the patenting of genes could decide the fate of genetic testing for the increased risk of breast and ovarian cancer.

A decision on the motions is expected soon, according to an attorney for the ACLU, a plaintiff in the case filed on behalf of four scientific organizations.   

In what could turn out to be a landmark case, the ACLU and other plaintiffs are seeking a summary judgment to lift the restrictive patent held by Myriad Genetics, based in Salt Lake City, Utah, on genes associated with breast cancer.

The ACLU filed suit in the U.S. District Court for the Southern District of New York against the U.S. Patent and Trademark Office and Myriad Genetics on May 12. 

The conclusion of this case could establish whether or not a company can patent a gene.

The patent office and Myriad have filed a motion to dismiss the lawsuit. In response, the ACLU filed a motion on Aug. 26 for a summary judgment, which asks the judge to take the facts of the case and make a judgment without a jury trial.

According to Chris Hansen, an attorney with the ACLU, the organization filed the motion for summary judgment in the hope that District Court Judge Robert W. Sweet will look at the facts of the case and make a judgment in the plaintiff’s favor.

Both are awaiting the imminent response from the judge on these two motions, which could possibly decide whether this case dies or not.

The suit against Myriad Genetics and the patent office seeks to lift the patent that gave Myriad a restrictive patent on two genes mutations, BRCA1 and BRCA2, linked to an increased  risk of ovarian and breast cancer. Myriad offers genetic tests to indicate if they have an increased cancer risk due to the presence of these gene mutations.

Lawsuit plaintiff and cancer survivor Genae Girard, 39, said that, because there is only one company that does the test, a person cannot double check the results. The Texas businesswoman said this situation impedes a patient’s right to a second opinion.

“Human error occurs all the time,” she said. She said the BRCA patents means patients are at the mercy of a company that is essentially holding these two genes hostage.

The patents also means the two genes are not available for scientists and researchers to do studies on them without permission from Myriad. 

The ACLU argues that the monopoly covering these two genes is driving up the cost of testing, because Myriad has no competitors.

“Myriad is a reputable company,” asserts Girard. “But my qualm is that they granted a patent on something that exists in nature. It makes no sense!”

Suzanne Barton, assistant to the president of Myriad Genetics, declined to speak on this matter explaining that “Myriad has a policy of not commenting on pending litigation matters.”

The judge’s final decision on these two motions will decide the fate of this case and, ultimately, a company’s ability to obtain and control aspects of human genetics.