The Patents and Particulars of Athletic Ability

Australia-based Genetic Technologies Limited has filed a lawsuit in the US against 23andMe and LabCorp, alleging patent infringement, reports Blaine Bettinger at The Genetic Genealogist.

In its complaint, Genetic Technologies says that 23andMe and LabCorp are infringing on its US patent, number 7,615,342, on assessing ACTN3 genotype to predict athletic performance. As Bettinger notes, a non-mutant form of the ACTN3 gene is linked to being a sprinter, while a certain mutation in the gene is linked to having better endurance.

"According to 23andMe's marketing materials, LabCorp and 23andMe are working together to provide genetic testing, including α-actinin-3 ("ACTN3") gene testing," Genetic Technologies writes in its complaint, later adding that "those marketing materials indicate that LabCorp analyzes and detects the single nucleotide polymorphism rs1815739, which is also referred to as R577X, in the ACTN3 gene. … Defendants then use the presence of two 577R alleles to predict the potential sprinting, strength, or power performance of the human."

Bettinger says that if the case isn't settled, 23andMe and LabCorp would likely challenge the validity of the patent, possibly under the <em>Mayo v. Prometheus ruling that patents cannot only describe laws of nature. "Undoubtedly this case will examine whether the natural relationship between genetic variations in ACTN3 gene and the 'potential sprinting, strength, or power performance' of a human is a similar law of nature," he writes. "If so, the question then becomes whether the claim of the '342 patent recites more than just that law of nature and the general instruction to apply it."

The blogger at the Pathology Blawg concurs that that could be a challenge for Genetic Technologies' patent. The blogger also notes that this suit comes on the heels of another filed by Genetic Technologies against Genelex, also for patent infringement.