In prior posts we’ve described the ACLU’s lawsuit challenging Myriad Genetic’s patents on BRCA1 and 2, the breast cancer susceptibility genes, and responded to readers’ questions about the effect of those patents on research. In the latest development in the case, the ACLU has filed a motion for summary judgment (the motion was filed on August 26, 2009, and the ACLU’s supporting brief can be found here (pdf).)
Summary judgment, as the term suggests, is a device whereby the judge decides the case before it ever gets to trial. The party asking for summary judgment must persuade the court that the facts are undisputed and the controlling law is unambiguous, so there is no need for a trial. As the standard is sometimes stated, it is clear at the time of the motion that no reasonable jury could find for the other side. Summary judgment, while fairly rare, is most often granted after extensive discovery (sworn deposition testimony and document production), when the parties can make an accurate forecast of what evidence would come out at trial.
In addition to the inherent difficulty of getting summary judgment, the ACLU faces two particular procedural hurdles here. First, it is the plaintiff in the case. Since the plaintiff bears the burden of proof at trial, summary judgment for plaintiffs is extremely rare—even if the defendant has no contradictory evidence, the jury might just disbelieve the plaintiff’s evidence. Second, the ACLU has filed its motion before any discovery, a highly unusual move.
Even if it gets past these problems, the ACLU must meet the summary judgment standard, convincing the judge that there are no disputed factual issues and that the law is clearly in its favor. On the first point, most of the basic facts are undisputed: the patents say what they say. But in any patent case the court must construe the claims. That is, the judge must decide what all the technical terms mean, and precisely what is covered. So, to get summary judgment, the ACLU must first get a helpful construction of some critical claim language.
One pivotal question may be what “isolated” DNA means. The Myriad patents define the term to mean that the DNA is separated from its natural environment. To our knowledge, there are no instances in which a court or the Patent Office has found that sort of “isolated” gene to be an unpatentable product of nature—the core of the ACLU’s argument. So to prevail on summary judgment (or even after trial), the ACLU must also successfully assert a novel reading of patent law. At this point, summary judgment seems the longest of longshots.