This is interesting.

The American Civil Liberties Union is suing the Patent and Trademark Office and a research company awarded exclusive rights to human genes known to detect early signs of breast or ovarian cancer. The group claims the patents violate speech by restricting research.

You cannot patent laws of nature or products of nature. The claims here that cover looking at these genes for any purpose or cover variants that haven't been discovered seem overbroad. People should be able to do research on these genes.

However I think it should be possible to patent a "breast cancer test" where that test involves taking a DNA sample from a person, running it through a known lab process, and producing a result which tells you whether or not the person is predisposed to breast cancer. That complete process is the product which should be protected - but not any of its constituent sub-parts in any other context. The patent should not protect the mere "abstract thought" that this means there is a predisposition to breast cancer. It also obviously doesn't protect known lab techniques. Its the whole process, from A to B that combines known lab techniques with knowledge of the function of these genes and produces a usable result, which ought to be patentable.

So the argument that the ACLU here makes that this patent has been troublesome because it gives the firm a monopoly on genetic testing for breast cancer seems bunk. Thats exactly what patents are supposed to do - they create business monopolies - and to call that into question is to call the entire patent system into question.

Where the defendant seems to have crossed the line is in filing C&D notices against scientific researchers who are studying these genes but who are obviously not offering a commercial breast cancer testing service. There patents are being abused in a way that prevents scientific research and innovation, which is exactly the opposite of what patents are supposed to do and directly undermines the purpose for which the patent system was created.

In this case the PTO is at fault for not drawing the lines in the right place.