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Myriad, Defendants' Motion to Dismiss ACLU Lawsuit Set for Hearing

NEW YORK (GenomeWeb News) – A recent motion to dismiss a lawsuit brought by the American Civil Liberties Union and other plaintiffs against the US Patent Office and Myriad Genetics, among other defendants, has been scheduled to be heard by the court on Sep. 30, according to documents filed last week.

The initial suit, filed in May by the ACLU, the Association for Molecular Pathology, American College of Pathologists, and several other plaintiffs, alleged that the BRCA gene patents held by the University of Utah Research Foundation and exclusively licensed to Myriad "stifle research that could lead to cures and limit women's options regarding their medical care."

The ACLU's lawsuit, in effect, challenges the entire practice of gene patenting, and the outcome of the case could have wide-reaching effects for the research and genetic diagnostics fields.

But, last month the USPTO filed a motion to dismiss the case, arguing that the "plaintiffs lack standing to sue the USPTO, the Court lacks subject matter jurisdiction, and the action is barred by the sovereign immunity. Moreover, plaintiffs' unsupported legal conclusions fail to state a claim for a constitutional violation and therefore should be dismissed."

Myriad and the directors of the University of Research Foundation also filed their own memorandum in support of dismissing the ACLU's suit.

"This case is a thinly veiled attempt to challenge the validity of patents where, other than an overall policy disagreement concerning the legitimacy of gene patents, the plaintiffs have no actual dispute with the Defendants over patent infringement," they wrote in their July 13 filing. "If the plaintiffs in this case have standing, then virtually anyone can challenge any patent at any time."

In addition to setting a hearing on the motion to dismiss, the US District Court for the Southern District of New York also gave the plaintiffs until Aug. 26 to file their oppositions to the motion to dismiss.

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