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The Courts Biotech Patents

Will the Supreme Court End Human Gene Patents? 228

Posted by samzenpus
from the own-yourself dept.
An anonymous reader writes "Monday, the Supreme Court will hear a case on the validity of breast cancer gene patents. The court has a chance to end human gene patents after three decades. From the article: 'Since the 1980s, patent lawyers have been claiming pieces of humanity's genetic code. The United States Patent and Trademark Office has granted thousands of gene patents. The Federal Circuit, the court that hears all patent appeals, has consistently ruled such patents are legal. But the judicial winds have been shifting. The Supreme Court has never ruled on the legality of gene patents. And recently, the Supreme Court has grown increasingly skeptical of the Federal Circuit's patent-friendly jurisprudence. Meanwhile, a growing number of researchers, health care providers, and public interest groups have raised concerns about the harms of gene patents. The American Civil Liberties Union estimates that more than 40 percent of genes are now patented. Those patents have created "patent thickets" that make it difficult for scientists to do genetic research and commercialize their results. Monopolies on genetic testing have raised prices and reduced patient options.'"
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Will the Supreme Court End Human Gene Patents?

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  • by UltraZelda64 (2309504) on Sunday April 14, 2013 @07:25PM (#43448091)

    Come on... seriously now...

    No.

    • by femtobyte (710429) on Sunday April 14, 2013 @07:34PM (#43448119)

      I don't have high expectations for any institution that's over 10% Scalia, but once in a while the government does manage to do the right thing, at least for the wrong reasons.

      • I don't have high expectations for any institution that's over 10% Scalia, but once in a while the government does manage to do the right thing, at least for the wrong reasons.

        http://www.youtube.com/watch?v=XtRlkEI8SV4 [youtube.com]

      • If you look through the decisions of the supreme court, I bet you would find a number of decisions on which you agree with Scalia, Kelo v. City of New London for one.
    • by Taco Cowboy (5327) on Sunday April 14, 2013 @07:39PM (#43448151) Journal

      I believe that, if the "human gene" occurs naturally, that is, already existed before being discovered, they should not be patentable --- something akin to "prior art"

      But on the other hand, if the "human gene" is has a new sequence, result of some artificial manipulation in some lab, and has special characteristics, then I think it would be unfair to prohibit those who have invested their time and effort in creating something that has never existed before in patenting the new genetic sequence(s)

      • by UltraZelda64 (2309504) on Sunday April 14, 2013 @08:04PM (#43448229)

        And what happens that that gene is later found to exist somewhere in nature?

        What about those "artificial" genes made in labs that make their way into organisms through 100% natural methods? Should some biotechnology company "own" all of our rice just because some farmer decided to use their seeds, and their crops then crossed with, thereby contaminating all nearby farmers' rice crops?

        And it takes a virus or bacterium to transfer the gene into a plant... should humans really receive the patent for doing something that a lowly microorganism does itself?

        Patenting living things is just a bad idea. Period.

        • by icebike (68054) on Sunday April 14, 2013 @10:02PM (#43448881)

          Worse yet, (and bringing the discussion back home to humans), could a human be charged a license fee for reproducing (having children) simply because they paid for a medical treatment that involved gene therapy which becomes part of their DNA?

          Its time to end this silliness before it becomes a pervasive a cell phone patents and software patents. If doing so turns off all research into genetic medicine so be it. (It won't, but that's what the drug companies will claim, and its long past time to call their bluff). Someone else will step up and provide it on more agreeable terms.

        • And what happens that that gene is later found to exist somewhere in nature?

          That's fairly unlikely, especially if it is existing in the patented organism.

          Should some biotechnology company "own" all of our rice just because some farmer decided to use their seeds, and their crops then crossed with, thereby contaminating all nearby farmers' rice crops?

          Certainty not.

          And it takes a virus or bacterium to transfer the gene into a plant... should humans really receive the patent for doing something that a lowly microorganism does itself?

          I'm not sure I follow why that matters. In the end all inventions are just a more precise manipulation of natural forces.

          Patenting living things is just a bad idea. Period.

          Why? If you don't like patented organisms, you don't have to use them. Me, some of my favorite things exist because of patents, and humanity has gotten some great stuff out of patented organisms that in all likelihood would not exist if they could simply be reproduced.

          • Re: (Score:3, Interesting)

            by UltraZelda64 (2309504)

            Why? If you don't like patented organisms, you don't have to use them. Me, some of my favorite things exist because of patents, and humanity has gotten some great stuff out of patented organisms that in all likelihood would not exist if they could simply be reproduced.

            What happens when a genetically-modified crop is so widely grown that it has spread its destructive, patented genes to all other nearby "non-GMO" crops? Does that mean that I need to avoid all products containing even a trace amount of that crop, because either I can't trust it to be non-GMO or even know for sure that there's a 99% chance that all of that crop IS GMO? Take corn for example... good luck finding even an ear of corn that hasn't been genetically borked, let alone a bottle of whiskey or cornbr

            • by Samantha Wright (1324923) on Monday April 15, 2013 @01:19AM (#43449695) Homepage Journal

              You may find it comforting to know that, so far, GM crops have had no direct effect on human health. (Unlike, say, drugged livestock [purefood.org].) Plants don't use often use hormones that are compatible with the human body, so the likelihood of health problems occurring is somewhat diminished. One notable exception is the fig, which produces a chemical similar to estrogen.

              Also, a lot of people don't understand that genes only spread when they're evolutionary beneficial to the organism receiving them. Usually, the benefit is either metabolic (the ability to digest a new nutrient) or defensive (the ability to survive pesticides or natural poisons.) The worst thing that can happen to crops is that they become easier to farm. To date, the biggest legal case involving the spread of genes was a case where a farmer was re-selling herbicide-resistant seeds patented by Monsanto; pollen from a neighbouring field had spread over to his. But it's not like this affects you, the grocery-buyer—if Monsanto had contract terms saying they can sue their customers' customers, no one would do business with them!

              Most of the paranoia regarding the genetic manipulation of crops is the product of a culture accustomed to paranoid science fiction. There are plenty of cases where business practices are doing serious harm to human health—factory farming, for example, is responsible for several serious diseases, some of them incurable—but GM crops really aren't an issue. We simply don't know enough to create a real mess yet.

              • by Genda (560240) <mariet@ g o t . n et> on Monday April 15, 2013 @04:44AM (#43450327) Journal

                Actually what Mosanto has done is wiped out hundreds of small farms by predatory lawsuits which serves large agrobusiness (their primary customers) just fine. So big players are using GM to push small farms out of existence.

              • by AmiMoJo (196126) *

                The big problem that you just ignored is that when you create crops that are resistant to a certain disease then that disease tends to mutate into something that they are still vulnerable to. Just like excessive pesticide use this creates an arms race, not just between the manufacturers and the diseases but between individual farmers.

              • Re: (Score:3, Interesting)

                by CayceeDee (1883844)

                The worst thing that can happen to crops is that they become easier to farm. To date, the biggest legal case involving the spread of genes was a case where a farmer was re-selling herbicide-resistant seeds patented by Monsanto; pollen from a neighbouring field had spread over to his. But it's not like this affects you, the grocery-buyerâ"if Monsanto had contract terms saying they can sue their customers' customers, no one would do business with them!

                Of course, this affects me, the grocery buyer. The increased monopolization and mono-culture of agriculture created by companies like Monsanto does affect me. A great many of the foods I buy are from a limited number of lines which gives companies like Monsanto power over my food choices as they actively work to suppress the growth of other lines. All in the name of profit.
                Monsanto doesn't have to have a specific clause saying they can sue their customers' customers. The fact that they have a patent on on

              • by wagnerrp (1305589)

                Also, a lot of people don't understand that genes only spread when they're evolutionary beneficial to the organism receiving them.

                Funny thing, because those people would be correct. Genes spread because that's just what they do. Reproduction spreads genes as far and as fast as possible. If you reproduce, you have spread your genes, so the only way to prevent genes from spreading is to cause sterility. Natural selection is a statistical long game. Over many generations, those genes which are not beneficial will have a slightly lower likelihood of surviving to reproduce, and thus will occur in the population with reduced frequency.

          • by jelizondo (183861) * <<jerry.elizondo> <at> <gmail.com>> on Monday April 15, 2013 @12:21AM (#43449497)

            Please, take a moment to think.

            Shall we grant ownership of asteroids, planets and other celestial objects to the astronomer who discovers them?

            If not, why should other natural objects be treated differently?

            If you are talking about patentig a sequencing method or a method to change a natural gene, then, by all means, grant a patent. Otherwise, forget it.

            And then we have to deal with unintended consequences... What if the changed gene has deadly side-effects?

            The corporations want the government to assure them their profits, but they don't want to take the risk [snopes.com].

            Maybe we should not grant genetic patents at all?

      • by Jah-Wren Ryel (80510) on Sunday April 14, 2013 @08:13PM (#43448265)

        It isn't about being fair. It is about what produces the best result for society as a whole.

        • by BrokenHalo (565198) on Sunday April 14, 2013 @09:02PM (#43448541)

          It isn't about being fair. It is about what produces the best result for society as a whole.

          No it's not. It's about appeasing the lobby group with the biggest legal fund. So even if the Supreme Court did happen to strike down gene patents (which I believe unlikely), there's no reason why those interest groups wouldn't just lobby Congress to get the law changed in their favour. I would guess they would have a high likelihood of success there, given that all politicians are corrupt.

          • While I don't disagree with your point, it is a secondary issue. Correctable when people stop voting for career politicians and start voting in functional members of society. As Socrates stated, "the only people that should be representing people in the Republic are those that don't wish to be in politics.

            Yeah yeah, not likely any time soon but if enough people spread the message it can and will happen.

        • by erroneus (253617)

          Excellent point. And since these patents are used to concentrate wealth, something which has *ALWAYS* been bad for society as a whole, then we are in agreement.

          • I don't know if we are in agreement. Sure patents concentrate wealth, but they also provide motivation. The world isn't black and white, you have to try to figure out the net result to decide what is best for society.

            • by erroneus (253617)

              Motivation has never been necessary. It may only be necessary for investors to sink money into things, but people create and invent because it is in their nature to do so. Putting money behind it only gives cause for others to want to control and limit it.

              • Sure, people like to invent and create new things. But this is isn't a binary situation. There wasn't much incentive that patents could have provided for the invention of something like the wheel. But there are all kinds of inventions that simply would never have been made were it not for many millions of dollars spent on the effort, money spent with the intent of reaping a return based on the exclusive use of the results.

                • by thaylin (555395)
                  Prove it. If you cannot prove something you should not present it as fact, but instead opinion.
                • I postulate that they would have come about in another manner then. The closest we have to a proper experimental control is industries that lack any IP protection, the fashion industry springs to mind, yet every year designers come up with new designs -and make a fortune out of them.
                  They simply found OTHER ways to make money out of invention and fund the process. Removing the patent protection does't mean removing the financial incentive from those that want (or need) it, it simply means the methodology by

      • Human genes as they occur naturally are not patentable.

        It is only after they are isolated and a use is found for them in the isolated form that they become patentable.

      • by Hentes (2461350)

        I don't think the second case qualifies as human gene.

      • by Bremic (2703997)

        Every time two organisms come together and combine their genome to create a new organism they are manipulating the gene code to something that is unique and different.

        It's a serious issue if two people randomly create a genetic improvement in their offspring and are now able to be prosecuted because of it.

        Patent a way of making children able to be born with green eyes. Two people naturally have a child with green eyes, so they have breached your patent because they didn't pay you for it. That's an issue tha

      • by jxander (2605655)

        Just a bit of devil's advocate : they're all unique, to an extent. My genome is different from yours. Both of ours differ from any previously discovered. It would be like trying to claim all book copyrights are invalid because books have existed previously

        That's not to say genes should be viable for patents. They most certainly should not; mostly because no one invented them. All we can do is observe and possibly manipulate them. There's no invention there, no creation. There's nothing to patent in

      • For discrete molecules, you can only win a "composition of matter" patent on something that does not exist naturally. You can, however, patent a method for extracting, manipulating, packaging a natural product or even a specific use for it. The courts seem to have created a distinction between polynucleotides and small molecules; i.e., awarding a patent for a sequence of DNA is basically the same as awarding a composition of matter patent on a natural product and should not be allowed. If anything, they sho

      • by taj (32429)

        .
        Most genes are on the order of a thousand base pairs. While not insignificant in number, why not just patent all combinations? Whats preventing an organization from patenting all possible 100 base pair combinations? If someone adds a thousand basepairs onto one of your sequences, you can claim they violate your rights.

    • by hsmith (818216) on Sunday April 14, 2013 @08:00PM (#43448217)
      God forbid Congress and the President do something about it. No, lets hope the Supreme Court, nine old people, figure it out.

      Patenting genes, which aren't fucking inventions - is purely insane.
  • by Impy the Impiuos Imp (442658) on Sunday April 14, 2013 @07:29PM (#43448103) Journal

    Is figuring out what constitutes a gene for something really the Herculean effort (deserving of patent protection) it used to be?

    Or is it more like the Oklahoma Land Grab at this point?

    • Re: (Score:2, Insightful)

      by Anonymous Coward

      Is figuring out what constitutes a gene for something really the Herculean effort (deserving of patent protection) it used to be?

      Did Einstein patent the Theory of Relativity?

      Did Linus Pauling patent the Nature of the Chemical Bond?

      Does any astronomer who discovers a planet patent it?

      If I could dig a ditch from NY to LA. Should I get a patent on that ditch? After all, it would be a Herculean effort.

      • by dwye (1127395)

        If I could dig a ditch from NY to LA. Should I get a patent on that ditch?

        No, because there is prior art going back at least as far as the Roman Empire (assuming that you are smart enough to then fill the ditch with water).

        OTOH, you have the right to charge tolls on it (assuming that you got the rights of way, first -- otherwise you get the right to a small cell in a big pen), and these tolls are what encourage people to build them. Well, mostly encouraged them, since canals aren't that easy to build in new places, anymore. The canal between the Rhine and the Danube doesn't cou

    • by Daniel Dvorkin (106857) on Sunday April 14, 2013 @09:36PM (#43448739) Homepage Journal

      Is figuring out what constitutes a gene for something really the Herculean effort (deserving of patent protection) it used to be?

      As AC pointed out, "Herculean effort" is not necessarily deserving of patent protection. That being said, yes, figuring out what constitutes "the gene for X" (which for the vast majority of diseases is actually more like "the N genes and assorted epigenetic modifications for X," where N is some fairly large number) is still in most cases a task which would challenge even a demigod. Since those of us working in the fields aren't demigods, we have to rely on a whole lot of skull sweat and processor cycles. It still doesn't mean we should get to patent what we discover through this process, for the simple reason that they are discoveries rather than inventions.

    • by Y2KDragon (525979)
      More likely something like this... "Your gene is in my body, and it made me sick. You're going to pay me for having it, for my medical treatment, and my pain and suffering." The first time the courts rule in favor of a cancer patient that way, you'll see every company out there abandoning their gene patents. They want to protect their right to make money, then they have to assume the liability for their "product".
    • Or is it more like the Oklahoma Land Grab at this point?

      Undeniably this.

      The equipment to do the work is cheap and no longer requires a PhD... In a few years it will be as simple to sequence genes as it is to make a BLT.

  • by BTWR (540147) <.americangibor3. .at. .yahoo.com.> on Sunday April 14, 2013 @07:36PM (#43448127) Homepage Journal
    The masses don't know about this story yet. Once the Gay Marriage debate dies down a bit (or once the decision is released) and this becomes the next big court case, you will see overwhelming popular support for eliminating gene patents.

    Then again, I supposed Citizens United is very unpopular too, and that seems to have passed...
    • by chromaexcursion (2047080) on Sunday April 14, 2013 @08:55PM (#43448485)
      Good point, but very different constitutional foundations.
      The same reason the court ruled in favor of Citizens United is why they rule against gene patents.

      On a more favorable front. The SEC is likely to require all publicly traded corps to publish their political activities.
      Most companies fear public backlash more than their non-favored candidate in office.
    • Americans side with property, and this is IP (Intellectual Property).
    • The masses don't know about this story yet. Once the Gay Marriage debate dies down a bit (or once the decision is released) and this becomes the next big court case, you will see overwhelming popular support for eliminating gene patents.

      Well, I agree, with clarification that it will be popular support for eliminating the gay gene patent.

      Sulu, you've had your fun. Now it's time to share your innovation with the rest of the galaxy.

  • by PerformanceDude (1798324) on Sunday April 14, 2013 @07:37PM (#43448135)
    I never understood how they could allow this to happen in the first place. Clearly finding out the purpose of a gene will always be a discovery and not an invention. Discoveries are not patentable.
    • They are in this fucked up country...

    • they had to rewrite the admissibility rules to allow this shit, that's what happened.

    • by Grond (15515) on Sunday April 14, 2013 @08:44PM (#43448399) Homepage

      Clearly finding out the purpose of a gene will always be a discovery and not an invention. Discoveries are not patentable.

      "The term “invention” means invention or discovery." 35 U.S.C. 100(a) [cornell.edu]. You can argue that this is not what the law should be, but this has been the law in the United States since at least 1952.

      • Probably much further.

        "To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries."

    • I never understood how they could allow this to happen in the first place. Clearly finding out the purpose of a gene will always be a discovery and not an invention. Discoveries are not patentable.

      35 USC 101: Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.

    • by AmiMoJo (196126) *

      My understanding is that they can't patent the gene itself, only an application of that gene. So for example if they find one that can stop breast cancer by turning it off they can patent it for that use and stop people being cured without paying them first.

      "Your money or you life" sound familiar?

  • Patent Validity (Score:3, Insightful)

    by mephox (1462813) on Sunday April 14, 2013 @07:37PM (#43448137) Homepage
    It would be nice to see a Human Health and Well-Being clause for patents of things like this, shortening (though not eliminating) the monopolistic period during which companies can claim sole profits on a product which could save lives. With a stringent set of rules, of course such as providing that the patent actually includes something that cures or treats a disease/condition that is life threatening and thus shortening the road to genericness.
  • They shouldn't. (Score:5, Insightful)

    by VortexCortex (1117377) <(VortexCortex) ( ... -retrograde.com)> on Sunday April 14, 2013 @07:38PM (#43448143)

    I think we should be able to patent similar sized sections of machine code as well.

    This shit will never get better until it gets SO BAD that not even the rich greedy monopolies can make money. THEN we can fix the situation and end all patents (and copyrights too).

    Life is copying. You are trillions of copies of a single cell. We owe the entire advancement of the Human race to our ability to freely share ideas -- It's the only thing we have over the damn dirty apes, and we're squandering it for greed...

    • by shentino (1139071)

      The rich greedy monopolies are the ones having their lobbyists write the rules.

      They're not going to shoot themselves in the foot, and they aren't going to let their political pets do so either.

      The law has always and always will mean whatever the elite damn well say it does.

  • What value on human life? At what point does money become secondary to life?

    Money is just perception and power, if human health can't be exempt from the pull of money then what can be exempt? The health of the environment has become secondary to calculating who owns it, and now human health is directly subordinate to ownership and control. At what stage in human evolution do people with common sense stop and say "If we don't stop behaving like crazy people, we're going to become extinct".

    Because that'
    • by ancientt (569920)

      I didn't really think I had decided where I stood on this issue until I read that. Thanks, now I know.

      Money isn't just perception and power, it is a method of measuring the value of goods and services for the purpose of exchange. It seems almost stupid to have to say it, but it's the overlooked point here.

      The absuridity that medicine and by extension human health shouldn't have a monetary value should be obvious to anyone. To say anything else is to say that doctors and researchers should either not exist b

      • Oops, I wrote "should either not exist beyond voluntary efforts." when I should have written "should either not exist beyond voluntary efforts, or be compelled against their will."

        I've been bothered by a theory lately that some people, politicians in particular, may be manipulating public perception. What if there are people who recognize that a position is popular that they disagree with for really good reasons and act like they're in favor of the position with the intention to deliberately lose the publi

  • Monsanto? (Score:3, Interesting)

    by grilled-cheese (889107) on Sunday April 14, 2013 @07:50PM (#43448191)
    If they were to rule out gene patents in humans, I wonder what that would do to Monsanto and the rest of the GMO industry?
    • Douse them in legal Roundup?
    • Um the genes the Monsanto has patented are not naturally occurring.

    • Conversely, if they uphold human gene patents here AND grant Monsanto the win in their GMO case (looking into whether naturally-occurring offspring of parents with patented genese are unauthorized derivative works, and therefore violate the patent-holder's rights) would that mean that people could no longer reproduce legally in this country?
  • by guspasho (941623) on Sunday April 14, 2013 @07:54PM (#43448199)

    All the arguments in the summary are economic ones. Creating monopolies, raising prices, and market distortions are what patents are for. It's a reward to the creator that is supposed to drive creativity and innovation.

    The real argument against gene patents is that they shouldn't be patentable in the first place. They are natural phenomena, not inventions.

    • Re:Wrong approach (Score:4, Interesting)

      by meta-monkey (321000) on Sunday April 14, 2013 @08:11PM (#43448261) Journal

      Natural phenomena? Wrong argument, lefty. Our genes were wholly Created six thousand years ago by Our Lord in the image of His Holy Sequences. Hence, no human can claim invention on a gene in the face of Divine Prior Art.

    • What is patented is the isolated gene, which is not a natural product.

      Every patented composition is in fact a transformation of naturally occurring substances. The so-called gene patents are no exception.

    • All the arguments in the summary are economic ones. Creating monopolies, raising prices, and market distortions are what patents are for. It's a reward to the creator that is supposed to drive creativity and innovation.

      No, it's not. Patents have nothing to do with a reward - the invention is likely commercially valuable anyway, which is their reward for it. Rather, patents are a grant in exchange for public disclosure, as an incentive to destroy trade secrets. For example, here, they could've set up a lab that tested for the gene as a service, with you shipping DNA to them and them responding with a "yes, you're susceptible to this type of cancer" or "no, you're not", without ever letting on which sequence they were actua

  • The test (Score:5, Interesting)

    by swillden (191260) <shawn-ds@willden.org> on Sunday April 14, 2013 @07:57PM (#43448205) Homepage Journal

    IMO, all of the comments and discussion about whether genes are inventions or discoveries or natural or artificial are completely irrelevant.

    The purpose of the patent system is to advance the useful arts and sciences. Given that there is obviously a lot of scientific (and commercial) value in identifying the functions of particular parts of our genetic code, that's something we want to encourage. Patents are supposed to do this by encouraging research results to be published so that other researchers can use them for inspiration and as building blocks. If that's not happening, then patents aren't providing any value.

    So, a very simple test: If researchers routinely use the patent database as a source of inspiration and a place to find tools to solve specific problems, and are very willing to look for and license patents that help them make progress, then they're good and useful. If, however, patents are an obstruction, if researchers actively avoid looking at patents to avoid possible treble damages from willful infringement, or if they block useful avenues of research, then they're not providing any value and should be discarded.

    The question of whether something is invented or discovered is just semantics with no real impact on whether or not it's useful or whether or not patent protection will accelerate or slow progress in the field.

    • by mkiwi (585287)

      So, a very simple test: If researchers routinely use the patent database as a source of inspiration and a place to find tools to solve specific problems, and are very willing to look for and license patents that help them make progress, then they're good and useful. If, however, patents are an obstruction, if researchers actively avoid looking at patents to avoid possible treble damages from willful infringement, or if they block useful avenues of research, then they're not providing any value and should be discarded.

      I think regulated FRAND patents would be necessary if you had any patents on genes at all. Unfortunately, that means there will be special interest groups that will try to carve exceptions in to the regulations (and the laws supporting them). However, managed properly, FRAND could work for genes that are deemed patentable because the government can make sure the barrier to entry is low enough so that there's no Apple/Samsung/Motorola crap going on.

    • by Kjella (173770)

      That's nice, but you should probably give that speech to Congress not the Supreme Court. The court only cares if Congress stays within their constitutionally granted power, not if they're doing it smart or even right. After all it's not hard to argue that since patents are valuable it is incentive to create patentable inventions. It might not work that well in practice but the Supreme Court isn't going to overrule Congress on a thing like that.

    • Re:The test (Score:4, Insightful)

      by steelfood (895457) on Monday April 15, 2013 @12:07AM (#43449421)

      The question of whether something is invented or discovered is just semantics with no real impact on whether or not it's useful or whether or not patent protection will accelerate or slow progress in the field.

      Perhaps not the field per se, but if patents were granted for mere discoveries instead of inventions, then society itself will fall apart. Do we owe Higgs royalties for "discovering" the Higgs Boson? Or perhaps we owe them to CERN, whose LHC actually did the discovering?

      Patenting discoveries does not lead to the promotion of the useful arts and sciences in any situation. Instead, it leads to extreme corporatism.

    • IMO, all of the comments and discussion about whether genes are inventions or discoveries or natural or artificial are completely irrelevant.

      The purpose of the patent system is to advance the useful arts and sciences. Given that there is obviously a lot of scientific (and commercial) value in identifying the functions of particular parts of our genetic code, that's something we want to encourage. Patents are supposed to do this by encouraging research results to be published so that other researchers can use them for inspiration and as building blocks. If that's not happening, then patents aren't providing any value.

      So, a very simple test: If researchers routinely use the patent database as a source of inspiration and a place to find tools to solve specific problems, and are very willing to look for and license patents that help them make progress, then they're good and useful. If, however, patents are an obstruction, if researchers actively avoid looking at patents to avoid possible treble damages from willful infringement, or if they block useful avenues of research, then they're not providing any value and should be discarded.

      That's only a good test if researchers never published anywhere else. As you note, patents encourage research results to be published, but there's nothing that says that the publication must be the patent. Rather, patents eliminate the necessity of keeping trade secrets, where you wouldn't publish anywhere. By getting the patent, you are free to publish as much as you want, without losing any exclusive rights to the invention.

      Specifically, without patents, researchers at pharma companies wouldn't be publis

      • IMO, all of the comments and discussion about whether genes are inventions or discoveries or natural or artificial are completely irrelevant.

        The purpose of the patent system is to advance the useful arts and sciences. Given that there is obviously a lot of scientific (and commercial) value in identifying the functions of particular parts of our genetic code, that's something we want to encourage. Patents are supposed to do this by encouraging research results to be published so that other researchers can use them for inspiration and as building blocks. If that's not happening, then patents aren't providing any value.

        So, a very simple test: If researchers routinely use the patent database as a source of inspiration and a place to find tools to solve specific problems, and are very willing to look for and license patents that help them make progress, then they're good and useful. If, however, patents are an obstruction, if researchers actively avoid looking at patents to avoid possible treble damages from willful infringement, or if they block useful avenues of research, then they're not providing any value and should be discarded.

        That's only a good test if researchers never published anywhere else. As you note, patents encourage research results to be published, but there's nothing that says that the publication must be the patent. Rather, patents eliminate the necessity of keeping trade secrets, where you wouldn't publish anywhere. By getting the patent, you are free to publish as much as you want, without losing any exclusive rights to the invention.

        You are assuming that folks don't invent things all the time and just never think them novel enough to patent them. For instance: Most of the software patents granted infringe "undisclosed" prior art -- It's just that the prior art isn't "disclosed" because no one thought removing expired indices from a hash table while you traverse it was innovative enough to get it patented, or cared to. However, Linux was threatened with just such a bogus patent. Point being: There is no risk to disclosing -- Crap has

        • s/resting/restricting/
        • Pure unabashed speculation on your part. I can't believe you posted that. You clearly don't apply the methods of rationality in your thinking processes. I mean, really, are you daft? You are blinded by your profession to the point you don't even realize YOU HAVE NO EVIDENCE to support your beliefs, and are merely parroting whatever bullshit means your life hasn't been wasted harming society. I feel bad for you. You should quit your job before you wake up one day, realize I'm right, and kill yourself. Your kind (the willfully ignorant) disgusts me.

          Hi, troll. If you want to have a rational debate, go back and remove all of the above and its ilk from your post. I don't waste my time with assholes.

  • by Tastecicles (1153671) on Sunday April 14, 2013 @07:58PM (#43448211)

    If 96% of all human DNA is considered "junk" (as was the claim sometime in or around 2004), why the rush to claim it? In the interests of rampant capitalism? And why the reversal of that claim in 2011?

    Fuck you, you go play your own games, I'm taking my marbles and going home. When the rivers are dry, the trees are dead and the animals starving, the fields fallow and the supermarkets empty, the skies empty and the oceans sterile; then perhaps you'll realise that YOU CAN'T EAT MONEY. Go do something fucking useful like plant some fucking potatoes. DO SOMETHING USEFUL FOR THE GOOD OF HUMANITY OR GET THE FUCK OFF MY PLANET.

    • I'm still here. It's my planet too.

      When they stop paying me for going to work I'll find a new job. That's capitalism. (So is doing genetic research necessary to provide better medicine.) Even if the grocery store, mortgage company, utilities companies and Wal-Marts said "take what you need" I'd still find a new job. I'd prefer to work at a Waffle House because I'd enjoy it more and it's frankly easier work. Capitalism doesn't mean that I wouldn't work at all without it, it just means that I do what's more v

  • "Those patents have created "patent thickets" that make it difficult for scientists to do genetic research and commercialize their results. "

    Except that empirical research shows that gene patents have not created thickets or impeded genetic research or the commercialization of that research. See John P. Walsh, Charlene Cho, and Wesley M. Cohen, Patents, Material Transfers and Access to Research Inputs in Biomedical Research [druid.dk] , Final Report to the National Academy of Sciences’ Committee Intellectual P

  • by shentino (1139071)

    I bet that the special interests will have too much at stake to let this be overturned.

    I expect a swift congressional override in such a case.

  • by litehacksaur111 (2895607) on Sunday April 14, 2013 @11:48PM (#43449365)
    If you read the case file, the reason this is even going to court is because Myriad Genetics decided to patent the gene for breast cancer. Some Yale researchers got an NIH grant to research breast cancer and they got sued by Myriad for patent infringement. This is absolute bullshit. Most of the information known about genetics and disease was discovered by scientists working in federally funded labs or on grants at universities. If the patent is granted where does this end? Does that mean the small pox vaccine should have been patented and that the WHO was wrong in getting rid of small pox. What about Jonas Salk and polio. What about Tay Sach's disease, hemophelia, Huntington's disease and all the other genetic disorders that were discovered by scientists who did not apply for patents on fundamental knowledge.
  • You know, it's not a nice thing, but I sort of hope that at least some of the judges are close to women who have had breast cancer.
  • by sonamchauhan (587356) <sonamcNO@SPAMgmail.com> on Monday April 15, 2013 @03:08AM (#43450009) Journal

    Dred Scott v Sandford -- slaves are private property
    Roe v Wade -- an unborn child is private property
    This case -- your genes are private property, when a company "isolates" them from the human body

    Way to go 'Chief Justices' - reassign what is God's, to man...

    • by alexo (9335)

      Way to go 'Chief Justices' - reassign what is God's, to man...

      When God shows up with proof of ownership, I am sure that it would be duly considered.

  • by jonwil (467024) on Monday April 15, 2013 @05:27AM (#43450439)

    If the Supreme Court rules against gene patents, the biotech companies making the big bucks off these things may well pressure Congress to pass laws to make such patents legal.

  • Big Pharma and gene patents are doing to the human genome what corporate IP is doing everywhere else, turning the human genome into another economic turf war and locking up innovation and literally costing people's lives. ATTENTION this is not a theoretical conversation. See this deeply disheartening video [youtube.com]. If you are not deeply disgusted after seeing that video you should see your health professional to determine if perhaps you are not in fact human. Corporations exist for profit. If it profits them the yo

  • Can someone post a link to a Gene patent? Based on a previous Slashdot comment, I was led to believe that the patent is not on the gene, but on the method of testing for the presence of the gene. The latter would be a perfectly valid utility patent. But these articles always act like th patent is on the gene itself. Which is true?

  • If the courts decide that the genes employees discover on behalf of these drug companies really should be considered company 'property' then so be it. Real property (in the US anyway) is subject to imminent domain. If the government feels that the people 'need' a new road that happens to travel across your property they give you what somebody deems is a fair price for your home and they bulldoze it. If shaving a couple of minutes off of somebody's morning comute is worth disregarding personal property th

I've got a bad feeling about this.

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