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Human Gene Patent Challenged In Australian Court 90

Posted by kdawson
from the if-they-can-patent-leather dept.
dov_0 writes "Following a successful patent challenge in the US, an action is underway in Australia to have patents on two breast cancer genes declared invalid."
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Human Gene Patent Challenged In Australian Court

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  • by Drakkenmensch (1255800) on Tuesday June 08, 2010 @10:53AM (#32495948)
    Aren't patents supposed to protect inventions rather than just discoveries of something that exists already? Or are they claiming that they created those breast cancer genes in labs and forcefully injected it in their test subjects?
    • by confused one (671304) on Tuesday June 08, 2010 @10:58AM (#32496026)
      No, it's an existing gene. The patent usually works by stating the gene in question has been determined to do x and they write the patent so it loosly covers anything that might interact with that gene to alter or manipulate its function, hence they effectivly hold a patent on the gene.
      • by meerling (1487879) on Tuesday June 08, 2010 @12:45PM (#32497714)
        except that I've seen articles indicating that companies are patenting genes without even knowing what they do, just that it's been fully sequenced and they shoot of a patent app.
      • by Yuan-Lung (582630)
        "they write the patent so it loosly covers anything that might interact with that gene to alter or manipulate its function"

        Maybe I should patent the nerves on the penis and clitoris, and collect a fee whenever someone try to manipulate those....
      • Re: (Score:3, Insightful)

        by Rich0 (548339)

        You know, I wouldn't have as big a problem with this if the USPTO just required one thing before issuing a patent: a working demonstrative prototype for every claim.

        If they had actually cured cancer, I wouldn't mind so much them owning the cure for cancer (after all, in 17 years everybody gets it dirt cheap - a huge win for humanity).

        The problem is that they don't have a cure for cancer, and nobody else is going to bother to target this gene for developing a cure for cancer due to the encumbrance. So, huma

    • by Random2 (1412773) on Tuesday June 08, 2010 @11:03AM (#32496098) Journal

      The main reason these patents were allowed was to help refund the costs of the research into these genes. By forcing researchers, drug companies, ect. to license the use of the gene, it helped the initial team of researchers/parent company recover the money they sunk into finding the gene.

      The implication of this ruling is a loss of profitability via research. Whether this is actually the case or not will be determined by time.

      • by interkin3tic (1469267) on Tuesday June 08, 2010 @11:36AM (#32496546)

        I doubt it. The vast majority of basic biology research was done without patenting that knowledge and trying to sell it in some way, which is sort of what Myriad Genetics was trying to do. There are grants for basic research, the point of that is to fund research which was important but not directly profitable. If someone is saying "the only way this research will get done is if I can sell the knowledge afterwards," they are lying.

      • by geekoid (135745)

        They'll just become trade secrets. However they won't last long because the skills and tool required to figure out genes become cheaper everyday.

      • Re: (Score:3, Interesting)

        by robotkid (681905)

        The main reason these patents were allowed was to help refund the costs of the research into these genes. By forcing researchers, drug companies, ect. to license the use of the gene, it helped the initial team of researchers/parent company recover the money they sunk into finding the gene.

        The implication of this ruling is a loss of profitability via research. Whether this is actually the case or not will be determined by time.

        Yes, but you are looking at the wrong end of the drug pipeline. The ultimate goal of said research is for actual therapies and treatments to be invented, which can then enjoy patent protection. Patenting the gene itself creates a highly restrictive environment where only those with agreements with the patent holder can even consider embarking on the (much more costly and difficult) search for a treatment.

        There are researchers in the community, BTW, that are now legally barred from working on disease trea

    • Re: (Score:3, Interesting)

      by thms (1339227)

      Playing the devils advocate: Patents exist to encourage research which, when completed, could be easily "stolen". If there were no patents, nobody would research something which a competitor could copy without doing any of the work; or everyone would obfuscate their findings if possible.*

      So a company invests millions to find a gene which plays a role in cancer, i.e. it finds the connection and not just patents random junk hoping to score something later - shouldn't this be rewarded or protected somehow? If

      • That's entirely missing the point of the parent post. There's a huge difference between an invention and a discovery. Should the discovery of gravity be patentable?
      • Re: (Score:3, Insightful)

        by Lumpy (12016)

        Than those companies need to give up. places like http://www.vai.org/ [vai.org] are doing research and giving it free to the world.

        Sometimes "the greater good" is better than a profit margin.

        And the funny part is the best scientists are being drawn to the Institutes that allow them to do research without reporting to the board and justifying profit margins.

        I have yet to find anyone that has went to college to work on genetics and cure diseases because "I'm gonna be stinking rich" they do it because they want to h

      • by DrgnDancer (137700) on Tuesday June 08, 2010 @12:36PM (#32497548) Homepage

        I think the argument that I would make (and most reasonable people who are not entirely against the whole concept of patents) is that it would be perfectly reasonable to patent the drug you developed to fight Breast Cancer based upon your discovery of this gene. Patenting the gene itself is not reasonable. I cannot patent my discovery that steam forced into a confined space can turn temperature energy into kinetic energy. I can patent the steam engine I built based on this realization. I cannot patent my discovery that these specific proteins in combination result in a Breast Cancer gene. I can patent the drug I synthesized to combat breast Cancer based on this gene's construction.

      • Re: (Score:3, Insightful)

        The basic assumption is that patents encourage innovation. I've met a couple of inventors. They weren't primarily motivated by getting a patent. They just wanted to see if it, whatever it is, would work. Inventors don't like doing patent searches, much less paying someone else to do them. They like to tinker.

        I suppose someday, we'll read in the news that patents have a great social cost than benefit [mises.org].
      • by dov_0 (1438253)
        Patenting a screening system designed to find this gene is patenting an invention. Patenting the gene itself is taking credit for something that no man has yet achieved!
    • ...take it as a challenge to do something else. If the patent is successful, let it serve as the "bar" to beat. It will foster healthy competition and drive innovation. In fact, replace whatever they used with amphibian DNA ... sex changing amphibian DNA. [dramatic music]

    • And if you happen to be found with this breast cancer gene, you'll be inviolation of the patent... and once the Ninja-lawyers of Genetic Engineering Taskforce Bureau Enforcement of Native Technologies (aka GETBENT) is in place, you will be forced to pay dearly! (cue evil laughter)
  • only the beginning (Score:3, Insightful)

    by confused one (671304) on Tuesday June 08, 2010 @10:53AM (#32495950)
    Sadly, unless the courts in each respective country declare this type of patent to be invalid, this in only the beginning of a long, long process. All those patents. In all the countries. Tested one or two, or even a handful at a time... The patents might expire before the issue of patentability of the human genome (or any naturally occuring genome, for that matter) is resolved.
  • by eldavojohn (898314) * <eldavojohn@gm[ ].com ['ail' in gap]> on Tuesday June 08, 2010 @10:54AM (#32495958) Journal
    Look at their stock in the last month [google.com] and then look down at related companies on that page and see how every single company in that industry has suffered stock prices plummeting in the last month. Not saying it's a bad thing or that these patents shouldn't be overturned but it was pretty obvious [slashdot.org]. Just to prepare everyone, you will see a short term drop in research devoted to identifying cancer genes unless it's government backed with your tax dollars.
    • Re: (Score:1, Insightful)

      by Anonymous Coward

      I see no problem with my tax dollars going to research, its other things they use my tax dollars for that pisses me off.

    • by confused one (671304) on Tuesday June 08, 2010 @11:01AM (#32496060)
      A little voice in the back of my mind is saying that cancer research is something that should be backed with my tax dollars, such that they are.
      • Re: (Score:3, Insightful)

        Allow me to don the tinfoil hat for a moment, but if cancer research is a private field, I don't think they would strive towards finding a cure, or if they found it, I'm not sure they would publish it. There is much more money in treating repeat customers.

        I'm not saying that its happening, just that I wouldn't be all too surprised if it were.

        • But by its very nature, cancers create repeat customers. If you cure a person of their current malady, they are more likely to come back for treatment next time, than a person who was not cured and therefore died. And you are guaranteed a steady stream of new customers as they each experience the necessary random gene errors. It's a win-win.
          • Except that there currently is no cure. We do not cure the cancer, we just treat it. And it works exactly like you described, they get better for a while, then they're back.

            It's so "Win-win" *cough*, that I have a hard time believing that cancer research is actually doing what they are saying its doing. For all we know, they are merely researching the cancer, and not looking for a way to stop it.

            But there I go with crazy conspiracies again. I like to put a little more faith in humanity than all that. Perhap

            • Re: (Score:3, Informative)

              by confused one (671304)

              It was said tongue-in-cheek and please take the statement as such.

              However, seriously, if they should find a "cure" for specific cancers... My statement holds true. People will need to be treated as they develop new cancers during their lifetime; and, their life expectancy will increase because the cancers can be resolved, like a bacterial infection is now. There will be no Holy Grail of cancer cures. We may, eventually, be able to provide "vaccines" for common cancers caused by viral infections and co

      • No.... (Score:5, Insightful)

        by copponex (13876) on Tuesday June 08, 2010 @11:44AM (#32496666) Homepage

        Government dollars are for difficult projects that improve our lives, like trillion dollar wars, multi million dollar arms sales to future enemies we'll fight in trillion dollar wars, and so forth.

        Easy things like cancer research that carry zero benefit for the population at large should be privately owned forever by unaccountable tyrannies. Not only do we spend billions of dollars on erectile dysfunction research and marketing instead of cancer, but the drug companies also get to spend two to four times more money for marketing than research [publicintegrity.org], which results in lots of awesome TV commercials.

        It's a win-win!

      • Seconded. A quick google search found this page on the National Cancer Institute [cancer.gov] funding. If I'm reading that right, that's over 4 billion we spent through the NCI in 2008. We are in fact spending a lot of money on cancer to drive the preliminary research that isn't profitable. And why not, the government wastes a lot more money on far less noble goals than "curing cancer."

      • A little voice in the back of my mind is saying that cancer research is something that should be backed with my tax dollars, such that they are.

        The reality is that governments spend almost nothing on biomedical R&D unless there is a thriving private sector biomedical R&D community lobbying them to spend the money. Biomedical R&D spending in the US, both private (the vast majority) and government, utterly dwarfs the amount of money spent on biomedical R&D by governments (or private sector) i

    • by ibwolf (126465)

      ... unless it's government backed with your tax dollars.

      As opposed to being backed with private capital raised by selling me pharmaceuticals. One way or another, "we" are paying for this.

    • Look at their stock in the last month [google.com] and then look down at related companies on that page and see how every single company in that industry has suffered stock prices plummeting in the last month. Not saying it's a bad thing or that these patents shouldn't be overturned but it was pretty obvious [slashdot.org]. Just to prepare everyone, you will see a short term drop in research devoted to identifying cancer genes unless it's government backed with your tax dollars.

      Can you think of a better use of tax dollars?

      • Re: (Score:3, Interesting)

        by DrgnDancer (137700)

        Many-if-not-most of those private non-profits are funded by government grants. Organizations like the American Cancer Society, direct donations, and similar charitable activities fund the rest, true, but without doing a LOT more research than you have there is no way to determine how much of any individual lab's budget comes from government grants vs. private charitable donations. Having worked for research institutions and having had my wife work for the American Heart Association, I can reasonably guess

        • Re: (Score:3, Informative)

          by DrgnDancer (137700)

          Crap. this was meant as a reply to sibling, not parent. Why can't we edit or delete our posts here again?

    • Or, they'll research anyway because they want to develop highly lucrative drugs that interact with such genes (and which can be patented).

    • I think the first mover advantage should be sufficient motivation. The discouragement comes from the embrace of the "winner-take-all" society we live in. Once these investors can let of setting up their own private monopoly or ATM, then they'll find other ways to invest their money, and that won't necessarily lead to a loss of R&D funding.
  • Good (Score:4, Insightful)

    by geekoid (135745) <dadinportland AT yahoo DOT com> on Tuesday June 08, 2010 @10:54AM (#32495962) Homepage Journal

    This shit won't end well if people are allowed to patent genes.
    The methods for finding genes? sure, medications you can make from studying genes? sure. Genes? no.

    A company is more then welcomes to keep there findings as a trade secret. It's a pretty shitting thing to do in an industry founded on sharing.

    • Re: (Score:1, Informative)

      by Anonymous Coward

      As an ex-USPTO examiner, I can say that genes are not patentable, nor were they. What is patented is exactly what you claim to be alright with: methods for looking at the genes, methods for manipulating the genes and other chemicals that do stuff to the genes.

      The problem is that often there is only one method of looking at a gene, or one method of manipulating a gene. Sometimes the physics limits the methods to a single one. Patenting that method effectively patents the gene, which was the case at bar.

  • Patents... (Score:4, Interesting)

    by Pojut (1027544) on Tuesday June 08, 2010 @10:55AM (#32495994) Homepage

    Patents are a great idea, but the whole concept has been completely raped. The USPTO awards many patents that have no business being granted, and many applicants try to make their claims as broad as possible.

    "But if we only claim what we invented, we won't make as much money!" The entire purpose is to protect what you invent, fuckwads. Stop stifling innovation by creating a pencil but applying for a patent that attempts to cover any tool used to write.

    • Um, yes I agree that the USPTO and the US patent system is broken. But the story is about patents in Australia.
    • by kaptink (699820)

      Amen to that. You only need to go over to groklaw.net to see how patents get raped. Patent are supposed to help new ideas get a foot in the market but instead are being used to stilfe progress and innovation. The whole patent system needs to be torn down and started again from scratch.

  • Patenting genes is just wrong. I know these companies spend alot in research but you shouldnt just be able own a gene. Cancer is a battle everyone needs to come together and fight on the same team.

    • by Coren22 (1625475)

      Maybe this is their grand scheme:

      1 Find Gene
      2 Patent Gene
      3 Sue the Gene out of existence
      4 Cancer Gone
      5 ...
      6 PROFIT!

  • Who Owns you? (Score:2, Informative)

    by nawitus (1621237)
    There's also a documentary coming up about gene patents, as corporations already seem to own 20% of the human genes. http://www.kickstarter.com/projects/1305236092/your-genes-have-been-patented-a-feature-documentar [kickstarter.com]
  • Why can't breast cancer patients sue on the grounds that these genes made them sick?
    • Re: (Score:3, Informative)

      by Rogerborg (306625)

      Because they'd get counter-sued for producing more of them in violation of the patent?

      Actually, I may have just seen why allowing the patenting of (pre existing) genes is insane in the membrane.

  • ip law is a failure (Score:4, Interesting)

    by circletimessquare (444983) <circletimessquare&gmail,com> on Tuesday June 08, 2010 @11:17AM (#32496244) Homepage Journal

    the idea that you create a temporary monopoly (which seems to get less temporary every day) in order to encourage the creation of arts and technology has costs which outweigh the supposed benefit. for those who actually create, there are ancillary revenue streams which require no such legal protection

    its time to completely trash ip law. all of it. copyrights, patents: trash it, all of it

    • Re: (Score:3, Insightful)

      by geekoid (135745)

      nice over reaction.

      There is a place for IP. It's a good thing that has gone too far. Lets not throw out the baby with the bath water.

    • There are even *libertarians* who agree with you (I do, too). Imagine that [againstmonopoly.org]! And that is despite what Ayn Rand had to say about IP.
  • by Anonymous Coward

    Yep, it's already available to drug and biotech companies for their investments into developing treatments for many conditions and diseases. They can exploit these innovations/inventions for the legal time the patent is valid, and they do. They make a LOT of money as a return for their investments.

    However, the development of drugs or artificial implants does not entitle a company to patent the relevant body part. A gene is a body part. Why should it be any different? I seriously object to any part of my nat

    • Re: (Score:1, Funny)

      by logjon (1411219)
      I'm gonna patent opposable thumbs.
    • Where do you stand on drugs which are synthesized or engineered versions of molecules native to the human body; for instance, human insulin or clotting Factor VIII expressed in engineered cultures? These are protein molecules that are meant to be exact copies of a substance normally produced by the human body, and they represent the translated output of genes native to the human genome. Genentech received a patent [google.com] (I believe it will be in effect until 2014) for the preparation and use of recombinant Facto
  • Patents idea (Score:1, Interesting)

    by Anonymous Coward

    Idea:

    If patents are created to be able to recoup costs of research/inventing/etc, why not put a profit cap instead AND a limit date?

    Example: I spend $1Million on a 10 year research, I invent X thing, I can hold a patent on said invention for 20 years from patent date, OR for when I turn a net profit of $10Million; thus assuring that I recoup the invested money, and make a profit on it, or if I decide not to mass produce my invention for 20 years (or I cannot sell it) someone else can do it in 20 years.

  • by gmuslera (3436)
    All your genes are belong to us. Wonder how much billons the people with that gene have to pay to the company that have the patent... they are making a lot of copies of them every day, since they born, and a lot more if they have children.
  • Of course if I was actually God's proxy, I would have had first post.

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