JURIST - Paper Chase: Sunday, June 17, 2012

[JURIST] The American Civil Liberties Union (ACLU) and the Public Patent Foundation (PUBPAT) filed a brief [text, PDF] with the US Court of Appeals for the Federal Circuit [official website] on Friday in Association for Molecular Pathology v. US Patent and Trademark Office, an ongoing case challenging a Utah company's patent on genes [press release] associated with breast and ovarian cancers. Myriad Genetics [official website] currently owns the patent to BRCA1 and BRCA2 [NCI backgrounder]. The ACLU and PUBPAT argued in the filing that they are concerned that this patent limits the amount of research that can be done and the availability of diagnostic tests associated with these genes to women in need.

[T]he contested claims (and similar claims) have already inhibited research. Over half of all labs surveyed as part of an NHGRI-funded study reported "deciding not to develop a new clinical [BRCA] test because of a gene patent or license." A similar study found that 46% felt that gene patents had "delayed or limited their research." Another researcher looking closely at patenting genes found that it had "persistent negative effects on subsequent scientific research." The claims curtail the ability of scientists to examine human genes. Because scientific work relies on using DNA after it has been isolated, and because the patents do not specify a single BRCA molecule or a single use of the DNA but instead cover all of them, the patents give exclusivity over the BRCA1 and BRCA2 DNA itself, and their preemptive effect mandates a finding of invalidity.

In March 2012, the Supreme Court decided the case Mayo Collaborative Services v. Prometheus Laboratories [opinion text, PDF; JURIST report] and ruled that in order for something to be patentable it must add enough to a natural phenomena to make it different than anything found in nature, and that industry reliance upon a patent cannot be a consideration as to whether something is patentable. The Supreme Court then vacated the US Court of Appeals for the Federal Circuit's 2011 decision [JURIST report] in Association for Molecular Pathology and remanded [press release] it back to that court to make a decision consistent with Mayo. The ACLU and PUBPAT argued in the brief that the decision in Mayo "gave new vigor" to the principles used in determining whether a product of nature has been "transformed" enough to make it patentable, and that it supports the conclusion that these genes cannot be patented. Oral arguments will be held on July 20.

The ACLU and PUBPAT filed a petition for certiorari [JURIST report] in the Supreme Court in 2011 after the Court of Appeals for the Federal Circuit held that some of the patents were valid. This decision was contrary to the position of the Obama administration, which filed an amicus curiae brief [PDF; JURIST report] in support of the ACLU and PUBPAT. A federal district court in 2009 originally held [opinion, PDF] that all of the patents were invalid. JURIST Guest Columnist Doreen Hogle [official profile] argued that the Mayo decision raised questions as to what innovations are subject to patent law protection and may result in stifled investment in technology [JURIST comment].

[JURIST] China authorities launched an investigation [Xinhua report] on Friday into whether local family planning officials forced Feng Jianmei to have an abortion in her seventh month of pregnancy. Feng and her family allege that earlier this month she was taken to a hospital and her child was forcibly aborted because she did not have money to pay the fine for having a second child as required by federal family planning law. The federal government claims that, while Feng did not have a legal right to have a second child, local authorities were wrong to force an abortion so late in her pregnancy and are investigating to apply appropriate penalities. Federal authorities stated that local officials should have allowed her to have the baby and then applied sanctions according to law. China's statement is a reaction to widespread anger and outrage throughout the country after pictures of Feng with her aborted child were posted on blogs earlier this month. Du Shouping, the vice mayor of Ankang, the city Feng lives in, visited her and her family [press release, in Chinese] in the hospital on Thursday to apologize. A similar statement noted that three public officials have already been suspended [press release, in Chinese].

China has recently also been criticized for treating Chen Guangcheng inhumanely, a blind activist who was arrested for exposing forced abortions and other human rights violations. Last month, Chen called on the US to promote a rule of law [JURIST report] in China and use international law to make China respect basic human rights of its citizens. Chen arrived in the US last month after escaping house arrest [JURIST reports] the month before. Chen's situation caused a high-tension standoff between the US and China, and Chen is now in the US about to begin a fellowship to study law at New York University [advocacy website].

[JURIST] The UN Security Council [official website] on Sunday demanded the immediate release [press release] of a group of four staff members from the International Criminal Court (ICC) [official website] detained in Libya earlier this month. The Security Council noted that Libya has a legal obligation under Resolution 1970 (2011) [PDF] to "cooperate fully with and provide any necessary assistance to the Court and the Prosecutor." Among the detainees is Melinda Taylor, an Australian lawyer working for the ICC. A representative for the Libyan courts said that Taylor and her colleagues attempted to smuggle documents [Radio Australia report] to Muammar Gaddafi's [BBC obituary; JURIST news archive] son Saif al-Islam from his former aide. The issue of which court is going to try al-Islam has been a point of contention between Libya and the ICC since he was captured [JURIST report] by Libyan rebel forces in November. Libyan authorities have reportedly refused to release [NYT report] Taylor, but have given two of the other three detainees permission to leave. The two freed staff members have allegedly chosen to stay in support of their fellow ICC employees. A judicial source in Libya has said authorities may continue to detain the ICC staff for up to 45 days [JURIST report].

The Presidents of the International Criminal Tribunal for Rwanda (ICTR) [official website] and the International Criminal Tribunal for the former Yugoslavia (ICTY) [official website] this week joined the ICC in calling for the immediate release [JURIST report] of four staff members. The Australian Minister of Foreign Affairs reported that on Tuesday three officials from the ICC and the Australian ambassador to Libya were able to visit [JURIST report] and assess the condition of the four ICC staff members. A spokesperson for the ICC said earlier on Tuesday that the Libyan government had failed to explain [JURIST report] why the four ICC staff members were detained, and that their continued detention is a violation of international law. Earlier this month, a pre-trial chamber of the ICC granted a request by the Libyan government to postpone an order to transfer Saif al-Islam to ICC custody, after the Libyan government formally challenged [JURIST reports] the right of the ICC to try Saif al-Islam last month. In April, ICC chief prosecutor Luis Moreno-Ocampo asked the ICC to report Libya to the UN Security Council [JURIST report] for failing to turn over Saif al-Islam. Libya expressly denied [JURIST report] the ICC's request for such action and stated that Saif al-Islam will face trial within the country.

[JURIST] The UN Supervision Mission in Syria (UNSMIS) [official website] suspended its mission to supervise the implementation of a peace plan in the country on Saturday. Major General Robert Mood, head of the UNSMIS mission, blamed the group's exit from Syria [BBC backgrounder; JURIST news archive] on "an escalation in fighting and of the risk to his 300-strong team, as well as the 'lack of willingness' for peace by the warring parties." UNSMIS observers were in the country on a mission to supervise the end of military fighting, maintain communications with and free movement of UN mission officers in the country, allow access for humanitarian aid, release individuals detained without reason, provide protection to journalists and uphold the right to peaceful demonstration.

The UN observers have been the target of violence [AFP report] since they arrived in the country in April following the unanimous approval of a resolution [JURIST report] to send 300 unarmed soldiers and other civilian aid to Syria by the UN Security Council [official website]. Last week, UN Special Rapporteurs reported an escalation in violence [JURIST report] against peaceful protesters, journalists and human rights defenders.

The international community has continued to call for end to the violence in Syria. In early April, Human Rights Watch (HRW) [advocacy website] released a report claiming the Syrian government has executed more than 100 civilians [JURIST report] and opposition fighters during recent attacks. Also in April, UN Secretary-General Ban Ki-moon [official website] reaffirmed his call for an end to the violence and condemned attacks [JURIST report] by pro-government troops against civilians. In March, the UN Human Rights Council [official website] passed a non-binding resolution [JURIST report] condemning Syrian authorities for ongoing bloodshed and violations of human rights. This official condemnation from the rights body came after UN High Commissioner for Human Rights Navi Pillay [official profile] demanded a cease-fire [JURIST report] in late February.