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Patents On Genes: Round Two 85

Posted by timothy
from the keep-'em-zipped dept.
dstates writes "An industry has grown up around patents guaranteeing exclusive access to testing of mutations in specific genes, but recently the Supreme Court rejected a biotechnology patent saying laws of nature cannot be patented, and threw the issue of patents on genes back to the lower courts. The Court of Appeals is now preparing to hear arguments on whether genes can be patented. The results will have major implications. On the one hand, restricting access to whole regions of the human genome will stifle scientific progress. On the other, companies like Myriad Genetics and Optimal Medicine use the patents to protect years of work invested in research, but this also means preventing other companies from offering diagnostics based on competing faster and lower cost technologies to analyze mutations in these genes."
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Patents On Genes: Round Two

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  • Prior art? (Score:5, Insightful)

    by Nidi62 (1525137) on Thursday July 19, 2012 @05:03PM (#40704131)
    Unless a company/researcher can claim and show evidence that they have created a new mutation of a gene, wouldn't pretty much the entire history of the human species and human evolution be considered prior art for that gene?
    • by Ihmhi (1206036)

      Right, isn't a lot of this stuff done by figuring out how nature does it and then artificially replicating that process? Like gene therapy via retrovirus, for instance.

      • Right, isn't a lot of this stuff done by figuring out how nature does it and then artificially replicating that process? Like gene therapy via retrovirus, for instance.

        You may have a point there, but then the method or process might be patentable not the gene it self.

      • by Shavano (2541114)
        Putting a human gene in a retrovirus creates a new possibly patentable invention even if the gene and the original retrovirus are not patentable. But you should have to demonstrate utility. If there's no demonstrated utility the patent should be barred.
  • by acidfast7 (551610) on Thursday July 19, 2012 @05:05PM (#40704155)
    ... can easily be worked around regardless of what Myriad Genetics and Optimal Medicine tell you. Also, location plays a huge, huge role.
  • Ok, I'm sure I'm missing something here.

    But I don't see where a specific test can't be patented to determine if a gene is present, without patenting the gene.

    If someone else comes up with a different way to detect that gene, then they wouldn't be in violation of the patent.

    • by Githaron (2462596)
      While I agree that DNA sequences shouldn't be patentable, I think they want to protect research dollars that go into discovering which genes do what.
    • Re: (Score:3, Interesting)

      As I understand the case, the issue is whether genetic material is patentable at all. This is generally referred to as patentable utility or just utility for short. Questions of utility deal exclusivly with whether they fall under the statute. The questions are usually answered with a simple "yes, it is" (e.g. For an improved potato peeler) or "no," (e.g. F=ma) so no prior art would be necessary.
    • The problem is that the general steps are easily duplicated, once someone has determined that a disease or risk is correlated with a gene it's pretty easy for to make a test that takes advantage of that information. So you either need to patent gene sequencing in the general case, which is a genie that is already well out of the bottle thankfully, or you need to be able to patent using that gene to predict an outcome. It is the test that is being patented, or at least the correlation. The problem is twof

      • by surd1618 (1878068)
        So, basically, a compromise, where these kinds of patents expire quite quickly. I like this idea. Still, the most powerful organizations will *make* ways to keep their patents longer, requiring further legislation. Still, advancing the game seems like a sound venture to me.
        • No, no compromise. The premise in the post that says that lack of patent coverage will stifle growth is just BS. Gene therapies are causing a revolution in human and animal patient care. Giving exclusive use and royalty potential is a failed model for genetics. Many patents are dubious to begin with, and the proof of prior art is almost impossible to know. Better to use this as a model for the failure of patents, rather than to some how once again rape the process.

      • It would seem that correlations should not be patented at all. So you spent a lot of time finding it out, so what. I understand as a business you would want to have the rights to a monopoly on your idea. You can patent the test you make with the materials that make up the test, that should be good enough.

        The idiocy of patenting a gene or gene sequence or a mutation that you create (which would happen and probably has in nature already) seems like protecting your looks, if someone is born with very similar l

    • by Anonymous Coward

      Myriad also has patent claims directed to the test, and these claims have also been challenged in this case. These claims boil down to: sequence the patient's BRCA I or II gene, and compare to the 'normal' sequence. Myriad cannot claim the actual method of sequencing DNA as they did not invent that. So they claim the test, which according to recent holdings (including the vacated Federal Circuit holding in this case) is simply claiming a law of nature--that certain mutations correlate with certain diseas

  • by Anonymous Coward

    1. Gene finds it way into a bacteria.
    2. Bateria reproduces itself several million times on that food in the back of your fridge.
    3. Airport swapping finds Myriad Genetics IP on your things.
    4. Your sued for owning several million illegal copies of thier IP.

    • Re: (Score:3, Informative)

      by Dahamma (304068)

      That's not even a new case, Monsanto has already sued farmers whose crops were "infected" with their Roundup-resistant gene via natural cross pollination...

    • Re: (Score:3, Informative)

      by andydread (758754)
      Monsanto is doing this with crops already. If their gene contaminates your crop through natural means (wind pollination, direct seed drift, bees etc. You are on the hook. They can take control of the entire crop including the uncontaminated parts of your crop and the vigorously litigate these scenarios.
      • I've read about this too and it makes me literally angry with rage.

        Here's an equivalent scenario:
        Your neighbor backs a truck up to your fence, and tosses fertilizer all over your own garden 10 feet away from the fence. He goes to the city and says that you have his fertilizer all over your yard, and he wants all your crops now. The city says: that sounds fair, and grants him all rights to your garden's crops, plus the city then fines you the cost of his fertilizer.

  • There is a solution (Score:5, Interesting)

    by davidannis (939047) on Thursday July 19, 2012 @05:11PM (#40704247) Homepage
    The solution is not to allow my genes to be patented but to have the government fund basic research on what genes do and let the private sector slug it out. Many companies can then produce tests that are cheaper, faster, and better. That way they would compete on price and quality, not on being first to gain a monopoly position. We have lots of public infrastructure, like roads, that companies like UPS and FedEx share. It keeps costs low. Imagine if UPS could get exclusive access to Interstate 80 while FedEx got I-75. Not an efficient system if your goal is serving society even it FedEx and UPS funded their individual highways.
    • This is a very good idea. The only problem with them is their purpose. From "if your goal is serving society," the purpose of those that try to patent genes is not to "serve society" but to "make money of society" instead. I think the original purpose of patent is good, but it is now changed and is being exploited more and more because some people see (or create) loop holes in the system.
  • Although I think it's necessary to make genes and their functions incapable of being patented, the current system does have one advantage that we will have to seek to duplicate: centralization. If you have a rare genetic disease, as I do, you currently get the test from exactly one company. Your results come back complete with comparison to everyone who has ever had reason and opportunity to get tested for mutations to that gene. This is very helpful prognostically.
  • No (Score:5, Insightful)

    by paiute (550198) on Thursday July 19, 2012 @05:19PM (#40704349)
    Genes themselves should not be patentable. Make a different sequence synthetically, yes. Come up with a new way to sequence it, yes. Find a way to fix it if it's defective, yes. But the gene itself? No.
  • Not an Invention (Score:4, Insightful)

    by fmachado (89905) on Thursday July 19, 2012 @05:26PM (#40704445)

    Why would we accept a monopoly on some natural thing just because someone spent some money on something?

    Patents should never be allowed to genes, even if someone spent the whole stock of money of the plant.

    Just to begin, it's not an INVENTION, so a patent should not be allowed at all.

    I'm not against all patents, but patents on genes, software and business process are ridiculous. This demonstration of greed without limits should not be rewarded.

    Flavio

    • by gutnor (872759)

      At least, unlike sofware and business process, a lot of money is invested in research to know what gene does what and that knowledge has actual value for the society. Unfortunately, once it is known, there is no competitive advantage to have found it: anybody can produce test or other stuff based on it.

      If you want such fundamental research to happen you either need to give the private company that does it some way to recover the cost (like patents) or you fund it. Government funding is not as popular now

    • by Grond (15515)

      "Invention" means "invention or discovery." 35 USC 100(a) [cornell.edu]. Further, the Constitution's Patent and Copyright Clause [wikipedia.org] refers to "discoveries," not "inventions."

      Anyway, gene patents do not cover "a gene." They cover an isolated, purified DNA sequence, which does not occur in nature. It's no different from patenting an isolated, purified drug naturally found in a non-isolated, impure state in a plant.

  • by sugarmotor (621907) on Thursday July 19, 2012 @05:28PM (#40704469) Homepage

    Just scrap the "On the other" [companies like Myriad Genetics and Optimal Medicine use the patents to protect years of work invested in research] ... No one cares about that. That goes under the "ordinary risk of doing business". Built on sand. Investors/speculators didn't have, or ignored, complete picture of the situation.

    • Exactly, Fair is fair. The government doesn't give you a monopoly on the street corner because you were fired from your job. Why should the government give any company a monopoly on an idea just because they spent a lot of money developing it? If conservatives are so damn red in the face about socialism and the welfare state, start with all the goddamn companies that profit off of government granted monopolies on shit that's obvious to people skilled in the art, or already developed by nature, or already

      • by kanweg (771128)

        "Exactly, Fair is fair. The government doesn't give you a monopoly on the street corner because you were fired from your job. Why should the government give any company a monopoly on an idea just because they spent a lot of money developing it?"

        Strawman. If you look at the patent law (or the daily practice of the patent office), you'll see that having spent a lot of money is not a factor at all. It has to be New (doesn't matter where in the world it was publicly known to destroy a patent), and it has to be

  • Retribution (Score:2, Flamebait)

    by gmuslera (3436)
    If well those companies could deserve some recognition or retribution for their effort and investment, they should not own that knowledge, and/or somewhat forbid or put obstacles (including economic ones) to others to keep building from that point. Some patents in medicine, or drugs could be actually killing people for not having available those products because their patent enforcement, and i don't see any patent holder going to jail for mass murder.
  • by MarkvW (1037596) on Thursday July 19, 2012 @05:35PM (#40704553)

    This is serious stuff. Patenting life needs to be outside the law. This is worthy of a constitutional amendment.

    • by OldHawk777 (19923) *

      Leave the USA Constitution alone or politicians will take our rights to guns, booze, and balls.

      Just change the corporate-welfare WIPO/patent laws, so they will support (at the speed of technology or light) innovation.

    • Eh, we just need a court to overturn Diamond v. Chakrabarty and say that living things cannot be patentable subject matter.
  • by Anonymous Coward

    The Bloomberg article cited in the summary is rather one-sided in its treatment of the subject. While speaking extensively to the potential damage that invalidation of human gene patents (at least for 'isolated' DNA) may do to the industry, it does not mention the potential benefits, which include opening space for start-ups and other small business to perform research and create products which they currently cannot due to patents on human genes. Invalidation of human gene patents would, of course, not be

  • I claim prior art.

    Now, let me light these candles, put on some Barry White, and turn the lights down low and I'll show you what I mean.

    You're looking lovely tonight, you know.

  • by pubwvj (1045960)

    "restricting access to whole regions of the human genome will stifle scientific progress."

    Not in the slightest. Eliminating patents on genes, software and most other things would greatly enhance scientific progress. Patents are dampening both science and commerce.

  • Nature has been patented ... by the gods and all that is truly holy in the whole gaul-dang universe.

    Business is business. A bad/failed business model using patent trolling with the gods, or relying on patents being applicable to nature, the obvious, theoretical math and science for profit/income/tax/fees .... Fools not patents put themselves out of business, TFB4U.

    Business should only be able to patent products derived from applied math and science. Patents should be, limited to 10 years, always "Open" f

  • by CCarrot (1562079) on Thursday July 19, 2012 @06:20PM (#40704971)

    From a speech [whoownsyourbody.org] by Michael Crichton to congressional aides in 2006:

    "Gene patents might have looked reasonable 20 years ago, but the field has changed since in ways nobody could have predicted. And we have plenty of evidence today that gene patents are bad practice, harmful, and dangerous. Gene patenting breaks all sorts of long-standing rules about what is protectable, and it does so with no countervailing benefit. "

    I highly recommend reading the rest of his speech, as well as his novel on this very topic, called Next [wikipedia.org]. For a fiction writer, he was a pretty smart cookie. Must have been the MD he earned from Harvard, or maybe the BA in biological anthropology, also from Harvard. I especially like how he includes bibliographical references in most of his novels, so people can read for themselves the articles that inspire his novels.

    Rest in peace, sir, and know that you are mourned.

    • Genetic patents are the ultimate software patents, since our genetic code is the program for building us. And these days there is no sharp distinction between software and hardware, since there is so much software that replaces what used to be done with hardware (electronic ignition, calculator, programmable gate arrays, firmware). So I think the real problem is the idea of a patent, period. In this technological age, it's unnecessary to award monopolies to encourage innovation, and secrets don't last lo
  • ...to GMO stuff like what Monsonto and Cargill spew forrh.
  • I own all rights to my genes. Any company, corporation, etc., trying to profit from my genetic material owe me big bucks!!!
  • Would you be so kind and help humanity and post the gene sequence(s) we have to look for to make a diagnostic test for Alzheimer? After all, it is in nature isn't it? And this knowledge could help a lot of people, very well possible even you.

    Thanks on behalf of humanity.

    Bert
    PS For those that don't know that: The gene in its "natural habitat" isn't covered by a patent. It is only covered in isolated form or in a non-natural habitat (e.g. a human gene introduced into a plasmid).

  • https://en.wikipedia.org/wiki/Fluorescent_Black_%28comics%29

    dystopia is now
  • It beggars belief that a company would take out a patent on a diagnosis mechanism that could save lives.

    Are patents worth more that a person's life?

    • by sFurbo (1361249)
      The theory is that investors will be more willing to invest in a company trying to find such a diagnosis if there is a better chance of the company finding it making a profit. That would lead to more resources being spent finding diagnosis mechanisms, which would lead to more being invented/discovered. If you have a better idea of how ensure investments in medicine, feel free to share. I like this idea [slate.com], even though it builds heavily on the existing patent system, to the degree where it doesn't eliminate all
  • With technology moving on as it does, patenting single genes for use in targeted tests will soon become pointless. In a few years (it is happening already), exome sequencing, followed by variant confirmation via Sanger sequencing (directly sequencing the gene, not using a patented kit) will be the normal way to do diagnostics. Nobody will be paying for a single (or even multi) gene testing kit.

    Now, if companies decide to try and patent entire exomes (or genomes), things may turn nasty.

    My 2 cents (or pen

  • Every time I see the gene patent debate now, I think about how my wife spent five years of 60 hour weeks (grad school, she just got her PhD) discovering that some genes from Castor Beans have no effect on the lipids that they produce.

    Gene patents get us all backed up in a corner mostly because of the medical tests that can save lives. What people fail to consider is that gene research is not very well-understood yet. Individual researchers fumble around for decades before they get results worth sharing, i

  • slide-to-lock is just a software zipper... my pants had zippers years ago, but Apple still won their slide-to-lock battle... Why all the debate? This one is over...

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