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Should DNA be Patentable?
nexex writes: "This story seems brings the patent debate home; specifically, should a company or person be able to 'own' your DNA? Obviously researchers want to profit from their discoveries, thus funding new research. But critics counter they are profitting at the expense of our health, citing restrive screening licenses for things such as breast cancer and Alzheimer's. Citing a figure from a UK activist group, 500,000 gene or gene sequence patents have been applied for worldwide. Another excellent article on this issue from Salon.com was from a couple years ago."
If someone tries to patent my DNA, shouldn't I be able to provide them with lock of hair as an example of prior art?
DNA should not be patentable. It would be morally wrong, since the discovery of a gene is exactly that: nothing new and unique has been created, it's just finding something that was there already.
Patents should protect new ideas, not entities that are already present in nature and are waiting to be found.
However, when you can put a piece of DNA to use in any way, the methodology your technique follows should be patentable. A new method for application of a certain DNA sequence is something that can be new and innovative.
Put a patent and a copyright on the strands that make up diseases like AIDS, Herpes, Malaria & the common cold. I'm tired of catching a cold, and I sure as hell don't want to get any terminal diseases in the near future. If you think about it, DNA is really a kind of software, it is intellectual property that's been unclaimed. Well dammit someone should claim that IP and protect it's right to not be copied unless specifically authorized by the rightful owner and in compliance with the DMCA!
I do realize medical research is a huge money sink, but depending on the disease, if you get the right patents you can get a limited monopoly in a marked where there are *no* substitute treatment, and that people can't do without (aka they would die). Those together let you set whatever price you want on your drugs/services, and people will just have to pay. Or, your medical insurance would but it'd still be passed on to us as increased premiums. On the other hand, if there's not enough money to find the cure in the first place the entire thing is pretty moot.
Kjella
Live today, because you never know what tomorrow brings
Two requirements of a patent are the existance of an 'inventive step' and another is 'novelty'.
Patenting a gene itself (if that's what's done) is nothing more than patenting a transcription of an already-existing structure. It won't hold up - there is no novelty, and no invention - you're just writing down what already exists.
However, an inventive, novel step could be the application of the knowledge contained in the gene for specific therapies which were developed. These can and are patented, and I don't see anything wrong with this.
I think there's a common misconception that these companies are patenting genes themselves-I think that with few exception, this isn't the case - they're patenting applications of the knowledge to new therapies, much like someone who has studied the physiology of the body can patent a drug to treat an illness. You're not patenting the mechanism of the body, you're patenting a tool based on that knowledge.
I've always been confused by this - if I tried to patent my own DNA, couldn't someone use me as an example of prior work?
"What we have here, is a failure to communicate." - Cool Hand Luke
next week:
* Should the Internet be shut down?
* Should Open Source be illegal?
If I discover a new comet, should any astronomer that wants to look at it through a telescope have to pay me royalties?
It's rediculous. And that's an example of something that doesn't effect human health (Unless the comet is going to smash into earth I guess).
I cannot see how this could be construed as anything other than choosing money over humanity. It's repulsive.
One time I threw a brick at a duck.
They do not Patent DNA. They did not invent DNA.
THey can patent specific genes for a specific purpose.
So if they discover a gene that permits them to do something interesitng, like grow you a third arm... they can patent that.
If they discover a gene that will make you smarter... they can patent that.
They cannot patent genes until they have a use for them.
Patents that attempt to cover general applicability of properties of nature are invalid and the courts that uphold such patents in error.
Seastead this.
I always assumed that a patent was intended to cover a new or uniquely contrived object. Were these geneticists to be patenting recombinant DNA, I would be alright. When they begin to patent DNA that they discover, it becomes a travesty of science. Not only do they have no rights to that DNA, but it impedes scientific progress. Of course, most modern geneticists aren't working for the benefit of man. Some work for their own good first and last, Monsanto, while others work for their own good first but hope to benefit civilization in the process. Even academic research is beginning to fall under the latter category. In both examples, progress is stifled by greed and gluttony.
Pax Digitalia
The problem is, some (not all) biotech companies are enforcing their IP like some (not all) software companies do - sue first and ask questions later.
Now, I'm sure I'll get flamed by the Slahdot crowd that thinks everything should be "Open Source", but there are fundamental differences between computer science and genetic science.
---------------
Vpered na Mars!
Knowing my luck, one day my doctor will tell me "I'm sorry, but we just noticed the DNA for your mitochondria is patented. I've been told that the patent holder is filing under the DMCA that you've illegally been copying their intellectual property since conception and you must either cease operations immediately or remove all offending material."
*sigh*
The space of all-possible-digital-information maps directly onto the space of integers. Asking for a patent on a chunk of digital information (DNA, object code, what have you) is the same as asking for a patent on an integer. The claim that "oh, but it's a very large integer" is specious. Patents are for inventions not facts-of-math.
Copyright is only slightly more reasonable.
-- MarkusQ
I am releasing my DNA under the GPL license.
http://www.kubuntu.org/
Caveats:
:)
a) I know nothing about genetics or law myself. I learned all this from the genetics law expert I sat next to on a plane last week.
b)The duration of the explanation was part of a flight from Salt Lake to Seattle
c) I had a first class upgrade and took full advantage of the free Heinekens. That is to say, I hope I'm remembering this right.
Goes like this. It's illegal to patent an object, right? But a sequence of DNA in addition to containing the gene you're interested in, is always full of random and irrelevant pairs. So what they want to patent is not the gene as it naturally occurs, with all the junk DNA in it, but a cleaned-up version containing only those bits which are relevant to the patent. This is not a naturally occuring sequence, and so is patentable. So to answer the fellow who says "wait, I have that gene, every cell of me is prior art," no, you don't have that exact gene, yours contains different randomness. Yes, this sounds like a legalistic dodge to me too, and the expert acknowleged the point, but there it is.
A further wrinkle is that they patent the transcriptase necessary to make the cleaned-up gene, not the gene itself, though I had a sufficient buzz by that point in the conversation that I was ready to talk about football.
I think at some point, an international summit for "Things that belong to mankind" should be held and agreed upon.
Profit at the expense of public health has always been considered "wrong." But this is generally when it's a company unwilling to keep the air, water or land clean and safe for human habitation. But in cases such as patented AIDS drugs being suppressed when a far greater good could be served?
When mankind cannot 'afford' to be healthy or to survive, there is something very BROKEN in the way we are thinking. I'm not a communist, but get real... should one person DIE simply because he can't afford to live? It's all around us and no one is willing to say I'm wrong about that. But who is willing to actually step up to the plate and actually give to mankind rather than profit from its needs?
Unfortunately, very few genetic discoveries thus far enjoy the certainty-of-use you describe. Most gene patents claim a slight correlation to a certain condition (eg, people born with this gene have a 3% greater chance of developing an ulcer), etc. They are far from providing specific applications. What they represent is the protection of a costly process of discovery (ie, the ability to sequence DNA using expensive equipment) and scientific experimentation (eg, when generations of mice are bred without this gene, how do they act?)
The above process is very expensive, and some would argue that the results arrived at need to be protected, no matter how weak the actual patent claims. As far as I can see, this would be similar to early 20th century atomic researchers "patenting" the heavier elements and their isotopes along with their applications ("this patented Uranium isotope, when struck with a neutron, be made to fission...") Certainly these researchers required enormous resources to detect, isolate, and understand the elements that they were working with. That does not mean that they (or the governments and corporations they worked for) should necessarily enjoy a long-term monopoly on their discoveries simply because they were the first with the right equipment to examine natural processes.
Then presumably we want companies to research such techniques. But companies will only research them if they're profitable. If the product of the research is easily reverse-engineered and copied companies won't be motivated to do GE research unless they are protected by patent. So I guess the original question boils down to "Do you want the products of genetic engineering?"
-- SIGFPE
You are not allowed to patent fact, in my small understanding. For example, c^2=a^2+b^2 can not be patented, since it is taken as fact. Another more simple example is you can't patent the fact that we see the sky is blue. In the case of DNA, it too is fact. You can patent the process to finding DNA, but that should be all. Clinton opened the flood gates when he allowed the patenting of DNA. It was like opening up the west to homesteaders. All of a sudden this relm of fact could now be patented, though only a small area of it.
Some conspiracy theorists see this as a move by the US, which holds much of the capability to find DNA combinations, to try and corner the lucrative market of owning this fact. The US holds a lot of power with its patent office and most of the world regards it as the gate keeper as well as fear the Patent Office since the US holds a big stick to protect it's patent system.
The patenting of fact looks much like the DMCA when held up to the light.
We should learn our lesson from cartoons.
OK - you stand under the 16ton weight first then.
they can document the functionality down to the level that computer code is now
The functionality is one that is not previously existing or discovered in nature.
a unique combination of features where the majority of the code is new work. The thought here is that Ford company probably could not patent a new engine unless they owned the patents on the component parts and technologies. But there are an indefinite number of ways to build car engines.
Thus one probably could not patent a fire breathing dragon, but could patent the various implementations of the various subsystems.
patenting huge random chunks of DNA, hoping that something practical will come out of it is not the way to go.
"It is a greater offense to steal men's labor, than their clothes"
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Since when did scientists become so profit oriented?
Since about when people started buying technology based products. Edison I guess was the prototype.
There's a primer on gene patents (PDF file) that I wrote about a year ago. It explains the generally-accepted patent criteria and how genetic material has been interpreted to meet those criteria. The arguments for and against patentability of genes are presented, although the bias is against strict patentability; my personal viewpoint is that applications of genetic information are fair game, but the raw sequence itself should be off-limits.
The law allows for "inventions" to be patented, but you cannot patent a "discovery".
Thus if you find that a particular gene exists in the human body, you have not "invented" anything. One the other hand, if you take a piece of DNA and use it in a particlar process that is not naturally occuring, then you can patent the novel aspects of the process. DNA is just a chemical , and it is protected in exactly the same way as less complex chemicals.
This is exactly the same as patents for chemical reagents. You cannot patent phosphorus, but if you find a novel way to combine it with other elements to make something new, then you can patent that. For example, if you combine it with a piece of DNA that allows you to "mark" the DNA in certain ways, then you can patent that process if nobody has done it before.
If that happens to be the only way to diagnose a human disease, then you can and should reap a big financial reward from your patent.
Now, it very well be that the PTO is granting patents that aren't legally valid. We knew that already and it has nothing to do with the biological arena, it has a lot to do with complete incompetence and a political process that is broken.
I'm sorry, your babies DNA license as expired. The infant will be collected tomorrow by Microsoft Corp. Thank you for using the rent-a-baby service.
(c) Microsoft Corporation, DNA-DRM version 3
This comment does not represent the views or opinions of the user.
The whole idea of patenting anything should be re-thought from the ground up. It was designed before DNA, code, and the internet and is long out of date. You can't expect a civilisation to grow, if their own laws prohibit it and give ownership of technology to single individuals. Its one thing for a company to sue another for copying an idea for profit, but when you start leveraging royalties from people for breathing because you have a patent on "oxygen hemoglobin transfer" you have issues.
This comment does not represent the views or opinions of the user.
35 USCS 101 governing issuance of patents does not embrace every discovery, nor is it without limit, laws of nature, physical phenomena and abstract ideas are not patentable; discoveries that are manifestations of nature free to all men and reserved exclusively to none are not patentable. Diamond v Chakrabarty (1980) [101, n 38]
Most of the patents are for use of DNA sequences in diagnotics assays. A general assay procedure itself might be patentable, but I'd think the hybridization of DNA or it's related biological functions would be considered manifestations of nature.
If a company invents a treatment they should patent that.
Someone needs to take these greedheads to court.
Sue first and ask questions later? That leads to the impasse defined in the third couplet of my 1992 poem:
N A. html
http://www.magicdragon.com/EmeraldCity/Poetry/D
THE TWILIGHT OF GENETIC ENGINEERING
by
JONATHAN VOS POST
Jungle-floor bacteria devour helicopters after war;
ripped human corpses thaw, screaming, in battle zone
Smog-sucking moss evolves to grow on auto bumpers;
gas-tank tapeworm writhes: blind premium dreams
Heavy weaponry of corporate wars, intractable
ultimatum when lawyers subpoena their own DNA
Cockroaches skitter: dust of broken televisions;
lay phosphorescent eggs between commercials
Reunification pressures force abandonment of immortality;
death substitutes for taxes: final cost of doing business
Skinned headless lizard throbs, shoved into your chest:
replicant replaces your broken-once-too-often heart
Time & nucleotide
wait for no man
2300-2320
15 Sep 1992
Patenting genes seems to be common business practice in agriculture. Patented rice and grain seeds with special properties (like resistance to a specific herbicide) are sold all over the world already to Farmers more or less licensing the stuff. There are some problems with this aproach:
How can we be sure that the patented genes really came out of some laboratory, and were not found in some countries where people already knew about the specific properties of the stuff (maybe because they cultivated it over thousands of years). Some corporations are accused of doing just that with rice varieteys in 3rd world countries (where the farmers probably couldn't even pay the flight to USA, when dragged before a court there). We haven't even begun to catalog all species on earth, let alone their genetic diversifications, but maybe there should be a puplicly accessible database of genetic material from particularly successful or common crop sorts all over the world that are not yet patented, to be able to prove prior art.
Another problem is, that unlike music, films, books, software and whatnot life has it's own builtin copy-mechanism, in fact, once it's out it's sometimes hard to stop it from replicating or crossing borders. I remember a case, where a Farmer had to pay license fees, because grain from seeds his neighbour (who had planted patented stuff) blew on his fields and grew there. How could that man have prevented that, short of burning down his own corn? We already know to what ends the rights holders struggle for getting each and every use of IP paid led us in the case of copyrights. What will we see now? Genes with builtin DRM schemes (like if you don't spray your crop with a specific shortlived virus it won't survive the next month)?
--
"By the way if anyone here is in advertising or marketing... kill yourself." -- Bill Hicks
... are the people who hold the patent going to pay me royalties? Probably not.
Pre-existing DNA sequences are not like software. Software is an algorithm developed to perform a specific function or to solve a problem. DNA is more like a computer language. Even then, the computer language was developed by someone or a group of people, unlike DNA which existed before people discovered it. Software is more like a process for producing something. However though it processes data, or produces information, it is not likely to produce anything physical. Software is an intellectual or artistic work and can be protected by copyrights. The Technology/process used to produce or develop software may be patented. You can patent a Process or Invention, not discoveries.
... as things I discovered, just like the research labs, doctors, and lawyers are doing when they discover gene combinations. Even though this is obviously wrong, it is being done because of an interpretation of a ruling that allows scientists, reseach labs, laweres, or just about anyone, to patent viruses and bateria that they create to do specific things such as using bacteria to produce insulin, or using a modified virus for injecting an immune system into infants born without one. The patent office concluded that the only way to protect the bacteria and viruses that they had been created was to patent the DNA, and I agree to some extent; however, we are talking about patenting the invention which happens to be the DNA sequence that was probably discovered for the immune system, and was combined with an existing DNA sequence--in my example, the basic virus or bacteria.
If they were to follow the patenting of discoveries to its logical conclusion, then I could patent air, the sun, stars, the moon, gravity,
As far as intellectual property goes, there are a plethora of things that fall under common knowledge, such as "for loops" or sorting routines, that can't be copyrighted.
Finally there is the idea that somethings will do or currently does the world so much good that it can't be copyrighted with the intent of making money, or impeding its use. This would include "air-bags", and vaccines for such things as polio. We see this in the software field with "Open Source" or "Copy Lefted" copyrights.
Patents are for thing that may contain DNA, or for DNA sequences which are original works. The problem with "original works", is of course proving it, thus giving more weight to the argument of excluding DNA from Copyrighting/Patenting.
A couple of misconceptions need to be cleared up here:
1) It's not the scientists who are filing these patents. It's the suits who run the biotech corporations (and, increasingly, university research labs) who are doing it. Scientists, by and large, want to do science -- if they'd wanted to spend time in court, they'd have become lawyers or MBA's.
2) The human genome project, in its original form, was about sequencing human DNA. Gene discovery from sequence data is an almost entirely different process, and a much lengthier one. Raw sequence data is like a map of the world that shows only the outlines of the continents -- interesting, and potentially useful, but not much practical good to anyone until you've filled in all the rivers and mountain ranges and political boundaries.
The correlation between ignorance of statistics and using "correlation is not causation" as an argument is close to 1.
Almost all DNA tests use completely standard and widely known technology. Furthermore, the genetic sequence associated with a disease is a simple fact of nature. Patenting genetic tests is therefore not much different from if we were to allow patenting diagnosis of a disease, say, from the visual appearance of a rash that's examined with a magnifying glass or Wood's light. The argument that DNA tests take time and money to develop doesn't hold much either: reliable diagnosis from any kind of symptom requires extensive experience and, ultimately, scientific studies.
Notwithstanding the fact that your point was funny, you give a great example of why it's dangerous and unfortunate that we apply the vocabulary of physical property to the concept of "intellectual property".
it is intellectual property that's been unclaimed
...as if intellectual property is part of a landscape you want to stake your claim to, instead of being part of the creative process. Sigh. If only we could discuss it differently, as a means instead of an end, or a journey more than a destination.
Ontario was approached by the same company, asking for payments for all persons tested in the province. The request was (very) publicly rejected as an improper attempt to license a scientific discovery.
Maybe they didn't sue because Canadian judges appear to have a more common sense attitude to their job than their US peers.
An American patent lasts only 17 years, and if you allot a good seven years or so to get the thing out of the lab, then you're looking at a useful lifetime of maybe ten years.
Copyrights, on the other hand, are really scary. Originally they were to last 75 years, but recent lobbying by the Hollywood crowd has resulted in legislation under which it is not clear that copyrights will ever expire.
Originally copyrights and patents in the US lasted about the same length of time. 75 years was already a huge extension of term.
there are several things to note here.
the quid-quo-pro of the patent system is disclosure for _limited time_ monopoly. by offering patents, we incentive people to discover and reveal literally life-saving things about them in exchange for being able to solely exploit this knowledge for 20 years. 20 years later, anyone can exploit the knowledge.
it is unfortunate if strict licensing agreements prohibit some people from affording detection of breast cancer, but this must be balanced against the alternative that without the promise of patent protection, the knowledge underlying the screen might still be unknown.
prior art of the form "my cell contains this" is not relevant here. the patents most people are shooting are "composition of matter" patents, which are relevant to natural products that are purified or isolated from their natural state. in other words, public policy recognizes that finding a needle in a natural haystack and understanding the functional importance of the needle constitutes a genuine advance in the state of human knowledge. otherwise many things (industrial chemicals, drugs, etc.) which can be found in nature _if you know where to look_, would not be patentable.
finally, many of the early patents on genes were actually patents on cDNA, which is an image of the gene as cleaned up by the cell (think of it as an executable that has had strip run on it). these patents are neither considered very strong or very valuable, and companies (e.g. incyte) that pursued a patent heavy strategy are now struggling to find the value and are invariably moving towards more interesting achievements (aka advancing up the drug development chain). to some degree, the patent system is GIGO.
are there some harms associated with granting patent monopolies? yes. are there goods associated with granting patent monopolies? yes. the patent is a compromise.
Yeah, but you sure don't want to know what you need to do to get the source code...
Xix.
"Everything is adjustable, provided you have the right tools"
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What does DNA have to do with it? If someone finds a new sequence (the information) that does something cool, why shouldn't they be able to patent it? On the other hand, they have quite a lot of prior art to contend with. So if they can come up with a truely unique arrangement of DNA, they should have the rights. However, this excludes patenting sequences present in a living being that they merely 'discovered'.
http://www.masturbateforpeace.com/
If someone gets a patent on genes, I want the patent on Oak Trees and Duckbill Platypuses, because I can look at thier genes and remove any irrelevant pairs, and say that the sequence does not occur in nature. Of course, I wouldn't do this because I feel it it just plain wrong to try to patent a fundamental piece of nature. But someone thinks otherwise...
--- At my sig, unleash hell.
This is definitely the crux of the issue, but I think it's slightly more complicated. Imagine that the patent system had been invented before the discovery of the lever (ok, just for the sake of argument). Should a person be able to patent the lever? Did they discover the lever, or invent it?
Given the laws of physics, there is the potential for the existence of a lever, and lever-like objects can exist even if human hands did not make them. Therefore, it might be argued that the lever was discovered, not invented.
On the other hand, you can also argue physically that levers in general cannot exist without intelligent design. In order to really be a "lever," an object must not only have lever-like characteristics, but there must also be a source of input force, and an object to which the output force is transferred. Thermodynamically, this combination is highly unlikely, and you might argue that a lever-like object is not a lever unless an intelligent being uses it as such. Therefore, the lever was invented, not discovered.
Now, look at DNA. You can claim that since DNA existed before humans, it cannot be patented since it was not discovered. But you can also argue that, pre-humanity, DNA had no actual "purpose," since only humans create "purpose" and lower forms of life do not (this is a controversial statement). Therefore, by finding new "purposes" for DNA, such as the curing of diseases and other non-natural uses, we are "inventing," in a way. Therefore perhaps DNA can be patentable.
To boil it down to an archetypal example: suppose a team of scientists discover a gene in a rare species of dung beetle that can be spliced into human DNA to give increased resitance to ultraviolet radiation. Should the team of scientists be able to patent this use of the gene? Note that this is a patent for a specific "use" of the gene, not the gene itself.
I think that if a team of people has put in the effort, time, and frustration to discover something like that, they should be allowed to benefit from their research. As long as DNA patents are patents on "uses" and not the genes themselves, it doesn't bother me much.
No you missed the point ....
..." then you preclude any improvement in the technology because any new method would violate the patent - this isn't what patents are about.
If the test uses a novel method to detect the presence of something fine patent it. But to allow a patent which basically describes itself as "A test for the presence of this sequence
We'd better get all IP on our own DNA quick.
And you better not get any DNA treatments without checking the fine print.
Coz if you ever have kids, some corporation may sue you for unauthorised reproduction of their "intellectual property".
There shouldn't be such a thing as intellectual property. Because if you try to scale, it can end up this way:
"I own this thought, so you can't think of it without my permission".
Because in a possible future, thoughts, brains, machines, computers could be intertwined.
That said, lying is still wrong: e.g. saying "I thought of this first" when you didn't. This rule scales.
Or the editor (board owner) holds the copyrights, in which case he may do whatever he wants with the contributions, but he is also responsible for any laws that may get violated.
Shouldn't it be the same in biotech: if a company is stoopid enough to patent the genetic sequence of AIDS, shouldn't it be then forced to also accept legal responsibility for AIDS. I.e. face "wrongful death" lawsuits from each and every victim of AIDS. And if the company maliciously withheld treatment, or sold that treatment too expensively, add blackmail and murder to the list of accusations...
Say no to software patents.
If the test uses a novel method to detect the presence of something fine patent it. But to allow a patent which basically describes itself as "A test for the presence of this sequence ..." then you preclude any improvement in the technology because any new method would violate the patent - this isn't what patents are about.
The type of patent you are describing could simply be avoided by finding a different test for the same sequence. The only way you could tie up a DNA sequnce in a test is by patenting a test for a sequence as a marker for some property, beneficial or not. And even then it's weak because the only value of the patent is the use of the presence of the DNA as a marker - that is the use of the DNA sequence as an indicator. Any other use of the sequence is open for other applications.
On another note, I am quite upset at the moderation that is going on in this topic. It appears some real goons are loose hacking at anyone with anything like a counter opinion. It doesn't effect me particularly because my karma is so high it no longer gets changed by moderation, either way, but it really detrimental to Slashdot to see perfectly valid discussion get tromped on like this.