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Biotech Genome Patents Invalidated?
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."
What about current patents?
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?
This brings up again the interesting debate on whether information can be copyrighted by the one whom merely discovered the information, regardless of the fact that the information existed to begin with. Personally, I feel that human DNA is rather obviously public domain...otherwise one is forced to consider the ludicrous situation of one being forbidden to sequence one's own DNA, lest a copyrighted segment result. This is akin to being forbidden to read a CD because the code contained therin is copyright.
previous patents? I think USPTO should admit their mistake and invalidate them too.
Just imagine being told you have cancer....and then being handed a law suite for not licensing the process of mutating human DNA.
If only the USPTO would wake up to other scemes like this.
I've dirtied my hands writing poetry, for the sake of seduction; that is, for the sake of a useful cause. --Dostoevsky
The Biotech companies have been holding up too much valuable research by grabbing and keeping what is basically "open source"..
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
learn from yesterday, plan for tomorrow, party tonight
or one out of three ain't bad
This seems asinine to me. How can somebody claim a patent on genes?? Isn't that like patenting gravity or sunlight?? I thought you had to invent something to patent it. Marconi patented the radio, he didn't patent radio waves. (and yes i realize he may not have patented the radio, but it did sound good. :)
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
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.
---
"An eye for an eye leaves the whole world blind" - Gandhi
Is there any chance I could translate some patented software to base 2 (A,C,G,T), claim that it's one of these "large sequence cases", and get it invalidated?
''In the early days, a company could say, in effect, that if you accumulated enough of the gene, you could fill a vessel with it and use it as a paperweight - there was the utility,'' said Bruce Sunstein, a partner at Bromberg & Sunstein LLP in Boston, only partly in jest.
Ironically, this is an argument that cannot be used to defend a software patent.
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.
Liberty.
The patent should never have been approved, since the actual DNA sequence is taken from a natural source, and beyond that, is the core for all genetic research. No cancer research center trying to eliminate the sequences for cancer risk should have to fill out patent permission paperwork.
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.
All along the way to make money from genomics was not to file patents.
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.
Operator, give me the number for 911!
When we start thinking of complexity issues, we have to change our viewpoint as to what is in nature and what is invented.
zWhat would an EWOULDBLOCK block, if an EWOULDBLOCK could block would? -- me
that USPTO doesn't screw up biotech the way they did software.
seems like we're in a crazy new age of intellectual property being the new gold. I wonder what other areas of research should be limited on new issued patents. Will there soon be a trend of lowering the patent issue rate for all types of patents? Or is this only local to genetics..
and of course it's an invention that is patented, not information.
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?)
"we demand rigidly defined areas of doubt and uncertainty!"
while i wholeheartedly agree that patenting things like genes seems obviously public domain and incredibly prior art, there is a bigger issue at hand... money.
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...
Large print giveth, and the small print taketh away
Ahem. You're mixing copyright and patents up. They're both intellectual property but that's about all they're similarities.
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.
Doesn't anyone else think patenting genes is a little bit too much like this for comfort?
Who said satire was dead? Woo-hoo!
I had a dream, bright and carefree, but now there's doubt and gravity
This is a good thing, maybe the patent office is finally getting real, with a bit of luck they'll even stop patents like sideways swinging (go find it on slashdot, I'm to lazy)
Like I mentioned in the other post, COPYRIGHT is something different to a patent.
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.
How the hell do they expect to not claim they've never found previous effects of chunks of DNA before they patented it?
"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."
There is also the ridiculous situation where everyone is surely in breach of the patent, since everyone contains a copy of the patented DNA.
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....
Vacancy for signature. Apply within.
Beginner's guide to gene patents
3 97 385,00.html
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,
Doesn't decoding the human genome violate the DMCA anyway?
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?
Patents on the human genome , doesn't this affect
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
Actually, the fundamental question about any technological/scientific advance is whether it is a creation or a discovery. There's a kind of philosophical debate among mathematicians : Do they actually invent anything or do they merely find stuff that always existed and was just waiting for someone to stumble upon it?
In a way, math theorems are "just" the logical (mechanical?) consequence of a relatively small number of axioms. Theoretically, one could feed the axioms into a computer and have it derive "automatically" all possible theorems from these axioms.
On the other hand, the tree of possibilities is so vast that human input (insight, genius?) is critical to identify the one path that will lead to the desired result.
Back to the topic, it seems to me that genome sequencing looks more like "finding" than "inventing". But that's just MHO.
It would be nice to be sure of anything the way some people are of everything.
I personally have been using a hellva lot of genes for the last 19 years and fail to see how anyone could patent one of them. Patenting a use of that gene, I can understand although I may not always agree with the holders of those patents. If anyone out there wants to fight against the holders of gene patents, get in touch with me - I can't claim to have used them all but I've got quite a collection.
So, did God finally come down hard on the USPTO and yell "Prior Art!"?
must change my nick...
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.
I hope this invalidates that patent on the breast cancer gene, discussed here.
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)
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
Economic Left/Right: -0.62
Social Libertarian/Authoritarian: -3.69
First, allow me to apologize for my cavalier use of copyright. As the entire western american civilization pointed out, I misused the term 'copyright' where I should have used 'patent'. My only excuse is it being a single-digit hour of the morning. Second, I would like to address an aditional point: If one does copyri-- patent a gene sequence, is it a patent applying to that sequence only as a part of the entire DNA from which it was extracted? Or instead is it a standalone, patented work? What then if someone attempts to copyright a sequence containing that sequence? And what of the source of the sequence -- is a sequence identical to the original but obtained from, say, a spider monkey still a violation? IANAL, and there are more issues than I have addressed, but it seems the legal ramifications of this are severe. I am exceedingly uncomfortable with someone patenting something existing as an intrinsic trait of my own body -- it is akin (perhaps identical, if one follows the logic) to patenting my voice, or my hair color.
Mintz Levin Cohn Ferris Glovsky and Popeo PC
What did they expect??
- This and all my posts are public domain. I am a Physicist. I am not your Physicist. This is not Physically advice
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
I have had human DNA for years. My prior art invalidates all patents.
The truth doesn't care what I think.
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.
Last time I checked I had a few more than 4 Amino Acids and they weren't made of A's T's C's or G's!
You would think that after the HGP, OJ trial and all the other good and bad talk about genetics in the news people, would understand that
DNA --> RNA --> Proteins,
and that DNA and RNA are made of nucleic acids and tha Proteins are made of amino acids.
Is it really that hard a concept to understand?
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.
http://www.gnu.org/philosophy/words-to-avoid.html
It should be ok to patent genes, IF you created a new one, and didn't just discover one that was already there. For example, you combine the genes of a killer bee, a cockroach, and Richard Nixon and make some kind of monster. That you could patent.
("Digital Dog and the DNA monster that Ate Cambridge Mass." Any ex DEC employees out there?)
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.
Panurge has posted for the last time. Thanks for the positive moderations.
http://saveie6.com/
One loophole is really simple.
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.
It seems in America, any semblance of fairness is thrown out when it comes to the public domain. Well I guess I'll just go and write a song called "the human genome" and threaten legal action to anyone who's a human and doesn't pay me.
**SURPRISE** This post falls into the pattern for the requisite Slashdot sophmoric/extremist dime-a-dozen anti-IP/anti-US reply.
It seems unequivocal statement concerning US IP laws involving the words "any/all".
Well I innane proposal for patenting/copyrighting something and threaten legal action against others.
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 . Amino acids 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?"
Sorry! I know it doesn't contribute, but:
You don't know what irony is.
Well as Clonaid reckon that the human race was infact started by aliens cloning themselves,
we are all in for a big problem if they decide to cash in on the patents.
... from three million years ago.
The step was made for a surprisingly mundane reason. It had nothing to do with the USPTO suddenly seeing the light and realising that it was crazy to allow patents on raw data. Instead it happened because the patent office was recieving too many applications and did not have the time or money to examine them all. The changes in policy are designed to cut the numbers down, and push up the fees collected on the applications that do go through.
0 22 602.pdf
You can find a fairly good summary of the situations here (pages 5-6):
http://www.iipi.org/newsroom/speeches/Boston%20
But I'm not going to worry avout that until He brings charges.
Oh, wow. So the one thing I hadn't realized until reading this article was that a lot of the so-called gene patents were just based on (very possibly dodgy) Expressed Sequence Tag data. Somehow, that seems so...wrong. Can anybody out there with experience in this field comment on how trashy you could get in these patent applications?
Babar
They wouldn't be able to enforce a patent on cancer. I think we have some prior art on cancer to back this up.
"I can't drive 55. It only goes 38."
Still base 4.
You are forgetting that the order matters:
AT
CG
GC
TA
You are checking your backups, aren't you?
If they can be enlightened enough to raise the bar for genetic patents, hopefully they will lean in the same direction with software. The cause of their toughened stance seems to have the same roots as the problem with software patents: they were getting too many trivial applications for which they don't have enough time and money to examine.
---------
There is inferior bacteria on the interior of your posterior.
You can make money out of people by selling them carconogenic products /and/ be researching the cure drug too ... it's win win!
Quoth the original poster:--
:)
... were no longer his own"
"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."
Well it makes a good story, but only as a maybe- amusing distortion, certainly not as the truth. What was patented was not John Moore, of course, but rather, a technology invented during research carried out on biological/clinical sample material that had been taken from John Moore's body -- just not at all the same thing, is it
"his genes
Nonsense! How often does it have to be repeated that a patent gives no property right in an embodiment of the patented invention? The property is in the patent itself, conferring the right to license or prohibit commercial exploitation of the technology. To show the difference, if I infringe your patent for a wibble-tibble by making a wibble-tibble of the same kind for economic purposes without your authorization, that may make me liable to pay you court-ordered damages or an account of profits. I may be ordered to stop my activities, and maybe also to hand over or destroy the infringing article (at _my_ option). But that _doesn't_ make even the infringing wibble-tibble your property! It's not! (for example, if I obey a court order by destroying it by taking it to bits, the bits are mine, not yours.)
Again we find an entertaining myth propagated in preference to the more boring truth.
In the case of a patented gene-product or gene-related technology, not only are my genes or yours not infringements of any kind, but they are also not anybody else's property even if some technology derived from them might be the subject of a patent which could amount to infringement. Strewth! (There can be argument on whether genes in my body are capable of being an object of property at all, mine or anyone else's. I couldn't transfer legal title to my body to you by a bill of sale, for example.)
People who put this stuff about need to grow up!
If you read the article that I linked tyou will see that the patent was granted on the cell line taken from Moore's body a cell line that can be used for research purposes. While you are correct in asserting that he doesn't pay a tax for the continued right to use his body I think that you are missing the overall point.
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.
Never try to explain computers to a layman. It's easier to explain
sex to a virgin.
-- Robert Heinlein
(Note, however, that virgins tend to know a lot about computers.)
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