Biotech Genome Patents Invalidated? 148
bruthasj writes "The Boston Globe has a piece about all the Biotechs grabbing patents that dealt with segments of the Human Genome. It appears there are work arounds and that the USPTO basically disregards further patents on the genome. As one quoted: ''The land grab is over''. Read about it here."
Land Grab is Over? (Score:3, Interesting)
Was this orchestrated by people who already have patents?
If they do keep the current patents, how can they justify not allowing patents to be set while keeping other patents? Isn't it just a case of double standards?
Re:Land Grab is Over? (Score:2, Informative)
I don't think it'll be like that. I think this new ruling means that everything concerning the human genome is public domain now - makes sense really, general good of humanity and all that
Oops! (Score:4, Informative)
Oops! I stand corrected... The new patents are now refused, and (quoting from the article):
"companies have figured out ways to work around issued patents for specific genes and proteins."
So it seems to be saying that although the previous patents have not been invalidated, there are workarounds.
Re:Land Grab is Over? (Score:1)
If you're in a hole, stop digging. Two rights don't make a wrong
How can they justify imprisoning new criminals, when not all the previous ones were prosecuted?
How can they justify collecting taxes on you today, when some people evaded taxes in previous years?
Yes it might be more consistent if some older patents were overturned, but on the other hand, why should they be allowed to go back on their word and retrospectively change laws.
If congress just passed a law using words beginning with 'O' as the third word of a sentence was illegal, including sentences already posted on slashdot, would it be fair if you went to jail for the 2nd line of you post.
Re:Land Grab is Over? (Score:5, Interesting)
This allowed very fast gene patenting and allowed stockpiling genes for later use/research.
This whole thing with overthrowing/invalidating patents is not a big surprise, instead of having a universal patent for the gene, many companies now have loads of new ingredients for catfood, while others can go on about their business. Bon apetit Mr Cat
If you think this sound too unlikely/silly, have a look in the patent registry files :-)
Re:Land Grab is Over? (Score:1)
But if I am using the same gene for, say, dog food, I am not infringing on their patent, because they patented the use of the gene for cat food. I may not be able to patent the use for dog food though, because that would be obvious now to everyone who owns pets.
This may be the next loophole in those patents. They basicly cover the specific use of a discovery. And if the use that is patented, has limited reach, then it's a problem of the one filing the patent, not of the one using the gene for another application.
Leaps and Grounds (Score:5, Interesting)
Re:Leaps and Grounds (Score:1, Interesting)
Re:Leaps and Grounds (Score:1, Funny)
Enjoy your last breath as I release the hounds(lawyers).
Re:Leaps and Grounds (Score:1)
Enjoy your last breath as I release the hounds(lawyers).
At least you're employing the only group that has no need to pay you royalties.
Re:Leaps and Grounds (Score:2, Interesting)
I agree that DNA shouldn't be copyrighted.
As far as your question goes, it depends on how you look at it.
IS information waiting for a chance happening when its enigma becomes just a past temporal phenomena ? or IS certain information locked unless an ingenious mechanism uncovers it ?
Should the information linked to the second set of circumstances be any more privileged than the first ?
Re:Leaps and Grounds (Score:5, Insightful)
I don't it should be possible to patent 'information' that is by its own existence 'prior art'. Processes to extract, create, manipulate this information should be patentable.
Re:Leaps and Grounds (Score:2, Informative)
The debate is not over patenting DNA, but DNA sequences. By this, I mean, not the biological manifestation but its representation. You're free to discover it and use it yourself, if you can.
However, if you need to know the sequence, the representation. A case can be made that this accurate representation is the fruit of an ingenious mechanism that is the creation of its discoverer. Should the discoverer be obliged to part with this fruit because of its natural truth ?
P.S. A lot of posts lament about the difference between copyright/patent. While the difference exists, I'm referring to the application of any legal instrument which aims to appropriate exclusivity to a certain group or individual.
Re:Leaps and Grounds (Score:3, Insightful)
1. You discover a gene, and patent it. In the worst case, everyone is prohibited from doing research involving this gene without your approval for 17 years. Even if you're incapable of doing anything with it, like most of the companies with huge numbers of gene patents.
2. You discover a gene, and copyright your database. Others who wish to use your data pay you for access to the database. Anyone who doesn't want to pay can find the damn gene themselves, which takes time and money but isn't illegal.
Celera primarily chose (2), and received far more abuse than it deserved for their choice. They certainly shouldn't have been forced to make any of their data public*, but they shouldn't be able to prevent competitors from working on the same project.
Part of the problem is that molecular biology moves so quickly that a copyright may be useless after a few years. A patent, however, can cripple a promising area of research. Given that most basic research is done by academics, and having read enough articles about scientists getting screwed by companies, I'm inclined to side strongly against gene patents.
(* Except where required for publication in a journal.)
Re:Leaps and Grounds (Score:4, Insightful)
It isn't.
What biotech patents are all about is "using information x to do y",
for example: "using a breast-cancer gene to detect patient suspectibility to breast-cancer".. etc
The problem with biotech patents is that these claims are vague, and the application in question is often obvious.
That's where the problem is
Re:Leaps and Grounds (Score:1, Interesting)
I have understood that what's been patented is use of a gene, not the gene per se.
Let's say, however, that the patent office eliminates patents specifying vague uses when applicants don't really know what the genes do. So what? What's to keep the applicant who does know exactly what the gene does from applying for some [conceptually] trivial use of the gene, like using it as a "diagnostic method to detect breast cancer"?
I assume this is what you're refering to when you say the "application in question is obvious". However, I haven't read anything so far that would suggest such patents wouldn't be granted. In my mind, genotyping a locus for diagnostic purposes is just as public domain, so to speak, as the locus itself. The patent office saying "we won't accept vague patents" doesn't help the problem much in my mind.
Does anyone know what the status of these sorts of issues is?
Of course, it's fuzzy. Should diagnostic sequencing be patentable? Probably not. Gene therapy? Possibly, but probably not in my opinion. Drug design? Probably.
And does anyone know what the deal is with patenting mathematical algorithms and statistical techniques? I guess I've heard of it, but it sounds absurd to me. I saw a published paper the other day on a statistical technique that had been patented. I know it's off-topic, but it seems ridiculous to me that a statistical technique could be patentable. It seems even more ridiculous to me that it could be enforceable if someone is publishing it in an academic journal.
I guess I hate a lot of intellectual property conventions.
Re:Leaps and Grounds (Score:2)
I think the patent office went to hell the day they stopped requiring functional prototypes to accompany patent applications.
Re:Leaps and Grounds (Score:2)
Basically, IMNSGDHO, implementations should be patentable, but ideas should not. "1-Click shopping cart" should not be patentable; "using this specific code to implement a 1-Click shopping cart" I suppose should be (although in general I think code should be copyrighted, not patented, and algorithms shouldn't be patentable at all, but that's a whole 'nother argument.) "Using this gene to determine predisposition for breast cancer" should not be patentable; "using this specific chemical and that specific equipment in the way we developed to
Any gene, other nucleic acid sequence, protein, or any other chemical that occurs naturally in the body should automatically be public domain, period. The idea of doing things with those chemicals should also be public domain. Artificially developed genes et al should be patentable, I suppose -- if you develop a "good gene" that can be used to replace the "bad gene" (yes, I'm oversimplifying) and develop some unique delivery mechanism, then both the gene and the mechanism deserve patent protection. But we're a long way off from this being the kind of patent that most biotechs and pharmas want to file.
Re:Leaps and Grounds (Score:2)
Seriously, though - it seems there is too much money involved for the USPTO to just be able to shut the whole thing down. While I am not accusing people there of lack of integrity, etc, etc, we all very well know that money buys a lot. Money buys congress seats, senators, president elections, laws - you name it. Don't you think that money can buy the Patent Office?
That said, I don't think that this is for real. Or, if it is, then it will be reverted or a loophole/workaround solution will be found in no time. Just wait. As always, I hope I am wrong...
Copyright (Score:5, Insightful)
Copyrights on human gene sequences cannot be given. Why? Because an 'author' gains copyright. Nobody can author something that other people carry with them from birth as a chemical sequence. Even if a sequence was copyrightable then you would not have to license your DNA from Big Bad Corp because you are carrying it a chemical form, not a sequence of letters, etc etc.
A patent on a practical usage of a sequence is a completely different matter. Inventions using already occuring elements are fine under law and fine for most people. If somebody patents ATATATAT as a sequence used in a drug to boost human intelligence, then they're creating a new drug using that sequence, in the same way that a hydrogen engine uses naturally occuring metals and hydrogen to push a car. Usage is key and it seems that the Patent Office is pushing the usage aspect. Thankfully.
Re:Copyright (Score:2)
First, the notion of only "authors" having copyright is just the contemporary 'direction' formed from reasoning in the recent past.
Second, what's being debated is copyrighting information. The actual sequence of DNA is a biological manifestation and not information. The information is a representation of that manifestation. Can -> that - be copyrighted ?
Third, my original question regarding the distinction in my original post still stands. I haven't decided either way about it.
Re:Copyright (Score:4, Funny)
inventions, not information (Score:1)
But the way patents are worded is often a bit vague, with layers of claims (we claim 1. this specific use of this thing, and 2. this slightly more general use, and 3, this all-encompassing use). The layers can make it hard to decide what the "real" claim is.
And enforceability is another matter altogether - often it's down to competitors chosing to contest a patent, and then slugging it out in the courts.
IANAL, by the way... just a scientist (IAJAS?)
This is not copyright (Score:1)
Copyright - only you can copy and sell this information in this form.
Patent right - only you can use and sell the right to use this process/invention to do this and this.
The interesting aspect to these patent cases is whether a naturally occuring chemical sequence can be patented at all (yes it can) and if so, what degree of practical usage should be demanded from an application.
It seems the Patent Office has started demanding a useful application be shown. So, an applicant can file a sequence but must explain what the sequence will do.
Re:Leaps and Grounds (Score:1)
You never could copyright genes, that's not the issue here.
Repeat after me: a patent is not a copyright. A copyright is not a patent. Do not use the two terms interchangeably, because they don't mean the same thing at all.
A concession and a rebuttal (Score:1)
Re:Leaps and Grounds (Score:2)
There is a case in which something similar occured. John Moore woke up one day to discover that he had been patented without his consent and that his genes, according to the USPTO were no longer his own. Esquire magazine did a supprisingly good peice on the subject that you can find as a PDF [stanford.edu] or as HTML from Google [216.239.33.100]. He tried to get the patent revoked on the grounds that he, the object in question, did not consent. He was refused but, as a consolation proze he was offered the chance to sue his doctor for failing to tell him how valuable he was as a product not for going ahead and patenting him when he chose not to.
Re:Leaps and Grounds - and myths about patents (Score:2)
Cells were extracted from John Moore, copied and patented without his consent. Because of that he cannot freely share his cells with other researchers or otherwise make use of his cells. If you wanted to take a property comparison its as if someone snuck into his house in the middle of the night, discovered gold in the basement, and got the legal right to continue mining it without his consent. In that sense his body is no longer completely his own.
what about (Score:5, Insightful)
Re:what about (Score:1)
Re:what about (Score:1)
So USPTO should give the application money back to registars (since was USPTO mistake).
Re:what about (Score:2)
Admit their mistake? That's it? What about firing those who were responsible? How about suing them for manipulating the competitive nature of the market? How about abolishing the program compeltely?
None of this will happen, of course. When government fails, it rewards itself with more revenue. I will guarantee that if government determines that the USPTO is failing, it will throw even more money at it -- effectively rewarding those who failed in the first place.
Ah, the benefits of power...
Talk about double jeapordy... (Score:4, Insightful)
If only the USPTO would wake up to other scemes like this.
Re:Talk about double jeapordy... (Score:2)
That's true only if one's in perfect control of the circumstances whence your DNA mutated. Obviously, we aren't. Otherwise, it would be possible to form a perfect prophylactic guideline.
Re:Talk about double jeapordy... (Score:5, Insightful)
And yet, you shouldn't doubt for a moment that if large corproations could charge you or garnishee your wages simply for getting cancer, they would. I mean, think of how many people get cancer! And by extension, think of the profits! Definitely worth the "investment" in a couple of patents here or there.
This is the world of Ayn Rand. These are the evils of capitalism. The combination of a patent system run amok and technologies which involve human DNA have given us a glimpse into just how evil capitalism can become... it just goes to show that whether you believe in capitalism or not, you must at least be willing ot put checks on it, lest it rise up and own you and your children (literally).
Re:Talk about double jeapordy... (Score:5, Interesting)
Capitalism is free trade, in every way no barriers no 'protected' marketplaces, what we see today is the rhetoric of the free market combined with protectionist legislation.
These government built barriers such as Patents and Copyrights are a hang over from the days of Mercantilism and have been enhanced and extended at the request of the corporations until we have what have here today, a system of byzantine complexity which encourages and rewards those who obscure and lie and more importantly already have lots of money to buy the next set of laws.
By the way in most countries Corporations do charge you for having cancer, they are the ones providing your care and drugs, even in the UK under the National Health service, the 'Back' office is increasingly run by private corporations.
Re:Talk about double jeapordy... (Score:1)
This is the world of Ayn Rand. These are the evils of capitalism. The combination of a patent system run amok and technologies which involve human DNA have given us a glimpse into just how evil capitalism can become
Sure. Because a company should spend $500M over ten years developing a drug to save millions of lives without assurance of recouping that cost through limited, government-granted monopolies in the market.
I'm not sure what you're semi-coherent rambling is attempting to suggest but the patent system, at least in biotech, has taken a great leap towards sensibility in this regulation. We should applaud the USPTO when they deserve it and decry them when they do not.
-jRe:Talk about double jeapordy... (Score:2)
Sure. Because a company should spend $500M over ten years developing a drug to save millions of lives without assurance of recouping that cost through limited, government-granted monopolies in the market.
Simple solution -- things that have wide effect on public welfare should be funded by the government directly, not by forcing citizens to do it in a convoluted and humiliating ways through monopolies.
Re:Talk about double jeapordy... (Score:2)
I'll bite. In your model, who decides what sicknesses get priority in the research queue?
Whoever it will be, he can't make worse decisions than biotech companies make now.
Do you believe that our federal cash flows, in the absence of massive increases in taxation, can support the level of parallel development currently taken on by the pharmaceutical industry we all so love to demonize?
Absolutely! It's not like sick people voluntarily choose to die when they can't afford medicine, so this or other way in a working system the demand is fixed and depends only on the population's susceptability to diseases. So it's a fixed tax on the society as a whole no matter how you look at it, all "health insurance" and other mechanisms do is redistributing this cost over the society to even it out -- in other words, making it an equivalent of a tax.
I don't think your model would work. No country in the world relies chiefly on public funding for medical research; the vast majority rely on public funds for basic research and massive private investment (accompanied by massive private returns) for applied research.
All biological research is fundamental, "applied" part necessary to develop drugs is mostly testing of proposed drugs, and government does most of that anyway.
This is why the founders included patents and copyright in the Constitution.
Can Americans stop constantly appealing to the authority of their "founding fathers"? If those people seen what their country turned into, they would not recognize any of their ideas in the curent form.
about frelling time (Score:1)
IANAL but i think this ruling cannot be (unfortunately) applied retroactively.. meaning that what has already been patented ("squatted on" to continue with the real estate theme) still belongs to the biotechs..
however there are ways to "encourage" these companies to allow research on them.. it has happened before where a Corporations patent application / FDA application / whatever has been held up in red tape until they "voluntarily" complied with the regulations that may not totally apply to them..
Suchetha
Re:about frelling time (Score:1)
This way- all parties benefit. Any company can then manufacture the drugs - which meanss there will be competition for pricing and quality of these drugs. This system would be a much more sustainable system for research, and would advance science in a more rapid way than current patent incentives ever could.
I just don't understand (Score:4, Insightful)
Re:I just don't understand (Score:5, Informative)
The funny thing about that is Marconi tried to patent his radio device but the patent office, becouse the device only worked short distances, said that it had no use. If that isn't irony I don't know what is.
hook
It isn't irony (Score:2)
But you're in good company. Even Gary (Doonesbury) Trudeau doesn't seem to know the meaning of irony when he uses the word, and yet his strip is riddled with it.
Re:It isn't irony (Score:2)
No, that's sarcasm, which is just one form of irony.
Even Gary (Doonesbury) Trudeau doesn't seem to know the meaning of irony when he uses the word
Very astute observation on the blackness of Mr. Kettle, Mr. Pot!
Re:It isn't irony (Score:2)
Irony [reference.com] See 2.
When everyone else is always wrong, you might want to reexamine your assumptions.
Re:I just don't understand (Score:1)
The funny thing about that is Marconi tried to patent his radio device but the patent office, becouse the device only worked short distances, said that it had no use. If that isn't irony I don't know what is. :)
Are you talking about this [uspto.gov] patent? If they refused the claim, it would be rather odd for them to give it a patent number and all, wouldn't it?
Re:I just don't understand (Score:2)
In Newfoundland, Canada, on the morning of December 12 1901, Marconi picked up morse code being transmitted over the Atlantic Ocean from Cornwell, over 3000 kms away.
Although he had been experimenting with "wireless" for almost 10 years before this event, arguably building upon work done by Tesla, this moment more than any other is considered by most to be the invention of the Radio. The patent office awarded his patent in 1905.
The story you are referring to actually happened to Tesla, who was refused on the basis that his transmitter could not even "transmit over a puddle, let alone the English Channel" (which was his intent and claimed accomplishment).
Re:I just don't understand (Score:5, Insightful)
So it was more like people said "I want to patent the use of gravity to cure cancer. I have no idea how to go about with it, but darn it I am the one to prosper from it would a use someday appear!"
Re:I just don't understand (Score:2)
Now what about an unmodified, naturally occuring gene? Well, around about 1994 or 95 people started using green fluorescent protein (GFP) as a tool in cell biology and now if you do a search on PubMed [nih.gov] you get 8661 articles. That's one incredibly useful little protein tool. Now in 1999 a new fluorescent protein DsRed was discovered, and it was cool. Being red, it was easier to see in cells which fluoresce in the blue and green ranges by themselves which made it valuable as a tool. Now these guys who found the organism, had the moment of genius to look for a fluorescent protein, found it, and made it all work naturally wanted to be compensated for it. Is this wrong?
Fighting software patents (Score:1, Interesting)
Re:Fighting software patents (Score:4, Funny)
Surely ACGT is four bases, hence base 4. Base 2 is binary, your basic 0 and 1.
Of course you could encode two bits of binary information to create a base four digit.
BTW, I am prepared to consider that I have dropped though a hole in the space-time fabric into a parallel universe with differing number theory (I have been playing with chroniton particles and theta-band radiation today)
Remember kids, 1 + 1 = -17 (On a complex plane)
Re:Fighting software patents (Score:1)
Re:Fighting software patents (Score:1)
Nice :-D good ole Protein/RNA code for software...an interesting idea...I wonder if they would go for that...if the courts/patent office would go for that, would there be a way to actually implement it in a computing environment in reality though...this will make you think...
Re:Fighting software patents (Score:3, Informative)
There is actually a 5th character used, U (uracil). It exists in mRNA (messenger RNA, represents DNA code when transported from the cell core to the ribosome). T is replaced by U.
It seems like the author of the article confused nucleotides (A,C,T,G) with Amino acids (22 of them).
with streams of As, Ts, Gs, and Cs, letters that represent the four amino acids that make up the DNA fragments that relate to the kinases.
Amino acids consist of 3 nucleotides, so a series of nucleotides convert into N/3 amino acids. As an example, the nucleotide sequence "GCA" transforms into the amino acid alanine (A) and so forth.
Re:Fighting software patents (Score:2)
And, of course, for extremely small values of 1. Eh, it's all not(at)ional...
It makes a great cocktail garnish (Score:4, Funny)
Ironically, this is an argument that cannot be used to defend a software patent.
do they even check? (Score:5, Insightful)
or do they just pay 10,000 monkeys to read through it then rubber stamp it?
I read the whole article and I don't see anything that mentions how these patents are actually checked/verified.
just says they're getting 'stricter'. Well boo-hoo. Before they just rubberstamped any shite that came thru, and now you have to tell them a little bit about the shite before they rubberstamp it without checking.
Re:do they even check? (Score:5, Informative)
This isn't perfect for several reasons:
-The genes themselves are discoveries, not inventions, should never have been patentable in the first place, and should still not be patentable now even if it is harder to do so. (The fact that a lot of money was spent does not change this.)
-A gene patent is publicly disclosed after 18 months, which tips off competition that the gene might be interesting for further research. Companies will be more reluctant to patent genes, and will simply choose to keep them a secret instead. Since the patents turned out to be strategically worthless anyway, this could be a bad development from the perspective of technological and scientific advancement.
-The tighter rules mean fewer useless gene patents will come in, freeing up a number of USPTO examiners, which means more time to rubber stamp other unrelated, and perhaps more damaging, patents.
Re:do they even check? (Score:5, Interesting)
It'd be like patenting air... (Score:4, Interesting)
It makes me wonder what other naturally occouring substances we could analyze and then later patent. The universities that have discovered the various sub-atomic particles don't hold any exclusive rights.
The whole idea behind it is money, or the rights to make anyone trying to do scientific research based on the genome give something up for the right to use the common human sequence.
Re:It'd be like patenting air... (Score:1)
It'd be like patenting air.
Don't you think that after we figure out how to teraform a planet that the air will be "made" and therefore be patentable?
Just a thought for the future.
What a surprise (Score:4, Insightful)
The way to make money is to cure disease, repair injuries, and extend life. I'm glad it only took a few years to clear THAT up.
Now let's hope Bush doesn't have too many of our best and brightest running from his lynch-the-cloners plan.
Re:What a surprise (Score:4, Funny)
Knuth said it best ... (Score:2, Insightful)
When we start thinking of complexity issues, we have to change our viewpoint as to what is in nature and what is invented.
zJeez, I just hope... (Score:1)
new gold rush? (Score:2, Insightful)
something people are overlooking... (Score:5, Insightful)
several people in my family are scientists involved in genetic engineering and we have had this discussion many times. the point that they make is that pharmaceutical companies must be able to secure their findings to pay for the research they do to find these genes and produce drugs to treat various diseases. remember that companies like merck aren't doing research like this because they are simply curious, no instead they want to find things like the cure for cancer or diabetes or aids or the common cold because it makes them money.
this research is ungodly expensive, so the drug companies want to make sure that if they did the research and found something, their competitors won't be able to cash in on it before they do. or worse yet, some company in asia making pills for next to nothing. this is their greatest fear, and this is why they patent things like there is no tomorrow.
while i still find it morally and ethically wrong to patent things like genes, i can't come up with a better way for these companies to do their business. and as much as i'm not into big businesses, i do like staying healthy...
Re:something people are overlooking... (Score:2, Insightful)
But you cant justify anything only on the fact that you need money. We have people robbing banks because they need money -- does that make them right?
So no, money is NOT the bigger issue here.
Re:something people are overlooking... (Score:5, Insightful)
This does mean that they may be obliged to discover the genes themselves before developing the treatment, but they have the ability to do this. They can simply rely on trade secrets laws to prevent others from using the gene sequence, and equally, they can licence trade secrets. Their payoff is from the patent on the treatment, not the genes.
The benefit is that this does still encourage information sharing, but also prevents extortionate charging for the root IP. You can choose to licence the information, or if the other company charges too much, you can simply rediscover it yourself. The risk that another company would start charging unfair amounts was a disincentive to actually develop anything based on publically available genes.
Re:something people are overlooking... (Score:3, Insightful)
Science is all about risks. The purpose of the patent system is not to reward risk or investment, but to promote the development of useful stuff.
Umm.... (Score:5, Funny)
Who said satire was dead? Woo-hoo!
First good thing... (Score:1)
Well, duh... (Score:3, Interesting)
"Guys, guys! You'll never guess what I just invented! It's a chemical that allows this thing I call photosythesis! We could use it to allow plants to get their energy directly from sunlight instead of... oh. Nevermind."
The Use of Nevermind... (Score:1)
The context in which you use the Trademark, whilst non-commercial links the Trademark to sensitive issues which could damage the Trademark resulting in potential financial loss and mental cruelty to the members of the band Nirvana. It was Kurt Cobain's wish, as sent in a typed, unsigned letter to us 7 months after his death, that we protect the use of the Trademark from unauthorised usage.
We therefore demand you produce a hasty apology and disclaimer and destroy any and all
Kind Regards,
Messrs. Sue, Grabbit and Runn
Bastar^^^^ Lawyers at law
Gene sequences are not inventions (Score:3, Insightful)
There is also the ridiculous situation where everyone is surely in breach of the patent, since everyone contains a copy of the patented DNA.
Re:Gene sequences are not inventions (Score:3, Informative)
I really don't see how gene sequences are patentable anyway - I always understood that patents were to protect inventions. Gene sequences are discoveries, not inventions
From Article I, Section 8 of the US Constitution:
"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;"
Emphasis is mine.
DISCLAIMER: I do not believe gene sequences should be patentable (unless they are wholly synthetic sequences that do not occur in nature). I am simply playing Devil's Advocate to the OP.
But... (Score:1)
The pharmaceutical industry has done so for years- it's just that their research results in a tangible product (a drug.) With biotech companies, sometimes they're only asset is there research....
Beginner's guide to gene patents (Score:5, Informative)
Special report: the ethics of genetics
James Meek
Wednesday November 15, 2000
The Guardian
What is a patent?
A patent is a kind of licence granted by a government to an inventor. It gives the inventor the right, through the courts, to stop rivals from making, using or selling an invention without his or her permission. When a patent is granted, the invention becomes the property of the inventor. However the patent can be bought, sold, rented or hired.
How long does a patent last?
Normally 20 years. After that, anyone can use the invention without restrictions.
Who issues patents?
In Britain, the UK Patent Office. But Britain is a signatory to the European Patent Convention, so inventions patented in one of 19 other European countries can have patent protection here too through the European Patent Office. Under the Trade-Related Intellectual Property Rights (TRIPS) agreement, which came into force in 1995, almost the entire world is supposed to have acquired similar patent rules.
What are the criteria for granting a patent to an inventor?
An invention must be novel - no-one else can have made it public; innovative - it can't be a development which would be obvious to specialists in the relevant field; and useful - it has to aid a practical human activity. It cannot be simply a discovery.
But surely genes are pure discoveries?
So opponents of gene patenting argue. They also point out that with modern automated gene analysis techniques, the non-obviousness of genes is becoming doubtful. Supporters of gene patenting say gene function is not obvious and that genes are not mere discoveries because the genes are patented together with inventive descriptions of how they can be used for diagnosis or therapy.
So what living things can be patented?
Naturally-occurring life forms, from plankton to people, cannot. But genetically engineered plants and animals, such as GM maize or lab mice designed to be prone to cancer, can. So can the naturally-occurring chemical codes and substances which allow all plants and animals, including humans, to function on a cellular level - like genes, or hormones - as long as the 'inventor' can specify a use for them.
Why should anyone want to patent something which occurs in nature?
Holding a patent on a human, plant or animal gene gives the holder control over commercial exploitation of that gene. If it's a human gene, that may involve diagnosis or therapy for a disease; if plant or animal, it may also involve disease, the promotion of a desirable characteristic like a sweet taste, or the transfer of the gene from one organism to another.
If someone has patented something which occurs naturally in my body, do I have to pay them?
No. Confusingly, a naturally-occurring gene can be patented as an isolated sequence, but not a gene in its natural state.
Can someone use a patent to block research?
Yes and no. One of the claimed advantages of the patent system is that it obliges the inventor to publish details of his or her invention, allowing academic scientists to study it. But as soon as a researcher tries to make commercial use of developments based on the original patent - by going into partnership with a drugs firm, for instance, or charging patients at cost for a genetic test - the patent holder can step in to stop them, or oblige them to pay a licence fee.
How important are patents for innovative companies?
Traditionally very important, as inventor James Dyson's recent victory over Hoover in the bagless vacuum cleaner wars showed. Many biotech companies, big and small, argue that genes must be patentable to allow firms to recoup their investment in identifying them. But other firms fear allowing genes to be patented before any specific, proven use has been established for them will hold back medical advances.
Can governments override patents?
Yes, if they feel it is vital for the public good, and the patent holder is being too restrictive.
What would be the impact on the economy if gene patenting was banned?
Unknown. The majority within the biotech lobby argues that it would discourage investment in genetic research. Yet the cost of identifying the function of a gene is a fraction of the cost of turning that gene into something useful, like a drug. There is an argument that the pharmaceutical industry, which has to come up with the bulk of the money anyway, would do better if firms were able to work freely with any genes and focused on patenting drugs instead. However, gene patent ownership is so important a part of biotech companies' stock market valuation that to threaten the concept would cause a market upheaval.
http://www.guardian.co.uk/genes/article/0,2763,
DMCA violation? (Score:4, Funny)
I mean: god obviously made it very hard to read the code (and didn't post the sources anywhere). So, surely, circumventing His copy protection must be illegal?
Re:DMCA violation? (Score:2)
Though we did have fun during the circumvention process!
Ummm .... well.... (Score:2, Funny)
us all in a very personal way ?
Biotech : "Excuse me sir , we have a problem"
Person : "Yes , exactly what is that"
Biotech : "You need to give us $100,000 for a
license"
Person : "Or what ? "
Biotech : "Or we are going to remove the part of"
"Your genome that lets you're body
Process food"
Person : "I don't have $100,000"
One week later
Person : "Gurgle gurgle gurgle" and promptly dies
I can prove prior use (Score:1)
So... (Score:2, Funny)
Darn... (Score:1, Funny)
They forgot to mention.... (Score:4, Informative)
Stewart: You were essentially competing with Celera Genomics in a race to assemble the genome, and they had procured what was reportedly the most powerful civilian computer in history for their effort. What tools did you use to beat them to the result?
Kent: 100 800 MhZ Pentium processors with 256 Mb RAM each, running Linux, the gcc compiler, the vim editor, a whiteboard, and occasional ice packs for the wrists.
Breast cancer gene (Score:4, Insightful)
It is just stunning to me that could be issued in the first place. And the company was actually using their patent to try and stop others from treating the gene, because it was their gene? Human body parts of any kind should not be patented. This may sound sexist, but I think if that was a testicle gene the patent never would have been issued. (sort of like the viagra vs birth control debacle)
''For patent attorneys it was just crazy,'' (Score:1)
Mintz Levin Cohn Ferris Glovsky and Popeo PC
What did they expect??
Good news, but... (Score:2)
But lately, said many patent attorneys, the patent office will likely reject any filing claiming more than a single sequence of genetic code.
This still goes too damn far.
-Rob
Prior Art (Score:1)
Either not invention or no inventive step (Score:1)
To me the fact that such patents were ever granted is disturbing.
I also think that once their use is detected, patenting them is still questionable, as no inventive step occured. Only new and innovative uses (e.g. curing a disease, in a manner not occuring in nature etc.) can be considered an invention.
Re:Either not invention or no inventive step (Score:2)
Such patents were never granted. For any composition of matter patent you must show that the composition has utility of some sort.
Gene patents legal if ... (Score:2)
("Digital Dog and the DNA monster that Ate Cambridge Mass." Any ex DEC employees out there?)
Someone owning you is slavery! (Score:2)
Loophole (Score:4, Insightful)
Patents are for inventions. No court can really argue this.
So say I discover a gene, and later find a way to cure something by using that gene.
I can simply go ahead and do so, as long as no other companys cure the same problem with the same gene.
If all they have done is patent the gene, I am free to ignore that.
So say they did patent the gene I use, and attempt to sue me.
I can be nice and explain to them the error of their way, but legally im not required to even respond directly to them.
So they try to sue me.
All I would need to do in a court of law is have them show their invention using the gene to the court. This is how two partys would prove that my invention is not the same (or if it is.)
They will have no such invention.
(Like i said, if they do, they have a valid process to patent, and life goes on.)
So at this point its safe to conclude that my invention (curing something by using this gene) does not at all match anything they are doing.
No patent infringement issue at all.
A judge could not claim a gene itself is patentable. At that point any living person is prior art which will invalidate the patent fully.
Any other biochemists out there cringe at this? (Score:3, Insightful)
From the Article:
"In the 57-page patent, 31 pages are filled with streams of As, Ts, Gs, and Cs, letters that represent the four amino acids that make up the DNA fragments that relate to the kinases." [emphasis added]
OUCH! Amino acids do not make up the genetic code! ATGC are nucleotides [wikipedia.org]. Amino acids [wikipedia.org] are the building blocks of protein. The amino acid sequence of proteins is encoded in the sequence of nucleotides in nucleic acid.
I realize that this post could be considered a nitpick, but to me it's not. It's like a software designer reading somewhere that the source code for an application was "written in the XML programming language." Doesn't that make your gut clamp up? Or what about, "Internet Explorer is my operating system?"
Re:Any other biochemists out there cringe at this? (Score:2)
Oh, yeah! There's a lot of redundancy in the genetic code.
If each nucleotide coded for an amino acid, then there would only be four possible amino acids used in proteins. If two nucleotides in sequence coded for one amino acid, then there would be 4^2=16 possible amino acids. In actuality there are 20 amino acids in common use in organisms, so a three-base code is used. These groups of three nucleotides are called codons.
3 nucleotides code for 1 amino acid, so there are 4^3=64 possible codons . There are only 20 amino acids in common usage, so obviously all 64 codons aren't needed. The extra codons are used for redundancy. Check out this page [uthct.edu] and notice how the amino acid serine (Ser [S]) is encoded by all codons beginning with TC. So any TC* codon will give you a serine in the translated protein. Some organisms prefer one codon over another, but in general you can the change the third codon without affecting the protein much.
So the answer to your question is yes - sort of. You can change a gene sequence without changing the protein sequence, but does that mean it's a completely different gene? Not really. It still does the same thing. It depends on how the patent is worded. If the patent gives control over the sequence, then you could be getting out on a loophole with some site-directed mutatagenesis. But if the patent gives control over the gene then it's a different story. Lots of greyspace there. I think the whole thing is just silly. Are they going to sue my pancreas for synthesizing insulin using their intellectual property?
Read this page [bbsrc.ac.uk] for a good explanation of the whole process of translating nucleotide sequences into proteins.
Re:Any other biochemists out there cringe at this? (Score:2)
No, because patent coverage is rarely that narrow. If it was, you could take a molecule containing 30% A, 35% B and 35% C, and slightly vary the composition to escape the patent. If patent coverage was that narrow there would be no point to having a patent system.
There is something called 'the doctrine of equivalents' which essentially translates to if you are using essentially the same thing to obtain the same result you are infringing.
A step in the right direction but.... (Score:2)
You can find a fairly good summary of the situations here (pages 5-6):
http://www.iipi.org/newsroom/speeches/Boston%20
Patents were just based on ESTs?? (Score:2)