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Penn State Law professors and students file briefs in three cases before the Supreme Court

The U.S. Supreme Court will be considering briefs from Professors David KayeEileen Kane, and Bob Rains as well as the Civil Rights Appellate Clinic in four different cases this term.

Helping the court better understand science
Professor Kaye is the main author of an amicus brief in the case of Maryland v. Alonzo King, Jr., which focuses on whether the Fourth Amendment bars Maryland from gathering DNA samples from individuals arrested for certain felonies. The case will be argued on February 26. Professor Kaye is an internationally recognized expert on scientific evidence and statistics in law. His research and teaching focus on the law of evidence, the use of science and statistics in litigation, and forensic science and criminal justice. His work was recently featured in ScotusBlog. The brief is on behalf of ten scientists who study the nature and transmission of genetic information. In filing the brief the group did not choose sides in the case but sought “to inform the Court of the possible medical and social significance of the DNA stored in law enforcement databases.”  
According to Professor Kaye, “The brief should permit the Justices to understand the limited number of ways in which the DNA records in law enforcement databases might reveal the health status or other socially sensitive information about individuals. In contrast, the briefs of the parties and other amici in support of these parties tend to minimize or exaggerate this concern, depending on the outcome they favor. With an accurate and balanced explanation from distinguished scientists of how the latest developments in genomic science affect the privacy issues in the case, the Court is in a much better position to weigh the interests of both the government and those who are forced to provide DNA samples.”
Can human genes be patented?
Professor Kane, who teaches patent law and intellectual property law and whose research focuses on the intersection of law and the life sciences, particularly genetics, filed an amicus brief on behalf of the plaintiffs in Association for Molecular Pathology (AMP) v. Myriad Genetics. The case is a challenge to the patenting of the BRCA1 and BRCA2 genes, brought by a coalition of medical organizations, scientists, physicians and patients. According to Professor Kane, "This litigation presents a challenge to the patenting of all human genes, although the specific case focuses on the patenting of the BRCA1 and BRCA2 genes (breast cancer genes). The outcome of the case will have great implications for the ability of physicians and scientists to freely use isolated human genes in genetic testing. The case is significant for patients because options for genetic testing can diminish where medically important genes have been patented and a competitive testing market cannot develop, as has occurred with the BRCA1 and BRCA2 genes. Furthermore, the integration of genetics into medicine is well underway, and patients will increasing encounter genetically-driven medical care." The brief filed by Professor Kane argues that genes are not patentable subject matter, according to well-established patent law doctrines.

Professor Kane summarizes the brief's arguments in her blog, “First, DNA (and a gene) is a molecule which requires a specific patent eligibility analysis that accounts for its complexity, where it is both a chemical and a template. The genetic code is embodied in DNA, and is a law of nature; patenting of genes, which are nature's formulas of the genetic code, violates the prohibition on patenting laws of nature. Second, the gene is ineligible for patenting as a product of nature; that analysis requires that the structure and the function of a proposed invention be considered. The isolated gene retains its natural structure and implements its natural function, and there is not an inventive distinction between the cellular gene and the isolated gene, violating the prohibition on patenting products of nature. Third, the symmetry formulation for patent eligibility from the Court’s Mayo v. Prometheus decision last year requires that a patent be scored for its inventive contribution, measured against its potential to limit innovation. When that comparison is applied to gene patenting, I conclude that because gene discovery does not qualify as an inventive contribution (based on the previous two arguments above) and because the patenting of genes has exacted demonstrable costs on innovation in the genetic testing field, the resulting asymmetry violates Mayo’s requirement that the costs of a patent not exceed its benefits.” The court will hear oral arguments in the case on April 15.

Challenging Defense of Marriage Act (DOMA)

Professor Bob Rains and research assistant Maren Miller Bam '13 contributed to an amici curiae brief in United States v. WindsorThe case challenges the provision of the Defense of Marriage Act (DOMA) that denies federal marriage benefits to same-sex couples in marriages which are legally recognized by their state of residence. Professor Rains and the other amici argue that DOMA violates the Fifth Amendment's guarantee of equal protection under the law to persons of the same sex. Professor Rains is counsel of record on the brief for the National Organization of Social Security Claimants’ Representatives (NOSSCR), who will file the brief as amici curiae with Services and Advocacy for Gay, Lesbian, Bisexual and Transgender Elders (SAGE), the National Senior Citizens Law Center (NSCLC), and the American Society on Aging (ASA).

Proving retaliation in an employment case
The Court will hear University of Texas Southwestern Medical Center vs. Nassar on April 24, and students from the Civil Rights Appellate Clinic hope to be present for the argument. The Clinic is working with several national organizations to file an amicus brief on behalf of Mr. Nassar. The case involves the retaliation provision of Title VII of the Civil Rights Act of 1964 and focuses on what an employee must prove to show unlawful retaliation when the employer has multiple motives for an adverse employment action. Since the clinic was established in 2008, it has filed eight amici briefs in the Supreme Court. The clinic has also filed three petitions for certiorari and had one granted and argued last year by the clinic’s director Professor Michael Foreman.
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