Patents Versus Your Health

ethzer0 writes "It's no surprise to the Slashdot crowd that patents are a hot topic these days. But a story on Wired reports that Edwin Stone and Val Sheffield, professors at the University of Iowa, have discovered links between 15 genes and certain eye diseases, which means genetic tests could be developed for the diseases. But often the scientists find the genes or parts of them have already been patented. Any diagnostic test involving a patented gene could infringe on someone's intellectual property."

Comments

God

[thebdj]

I am God the creator almight and I claim all patents on ever gene in every living creature.

How did we get to the point where we can do this? You didn't really do anything but make a discovery of something already existing in nature. You created nothing; so how do you patent what you didn't create?

Re:God

[Jorkapp]

I am God the creator almight and I claim all patents on ever gene in every living creature.

Perhaps, but we reverse engineered and open-sourced the human gene.

Re:God

[the eric conspiracy]

Do the work of sequencing the human genome and make it public domain so it wasn't patentable.

That last "so it wasn't patentable" is where you are mistaken. Sure, you can't patent the sequences per se. But if you have a use for that data such as a genetic test for a disease caused by a certain combination of GATTACA, you have patentable material.

Call your lawyer

[BortQ]

I have a patent on stories saying that patents may be bad. /. better be prepared to pay me some big money or my lawyers are gonna cream them.

It's shameful.

[7-Vodka]

This all happened for the same reason most evils in modern times happen. Powerful, rich people said "hay wouldn't it be nice if we could patent genes so that then we could make a bigger pile of money when someone wants to work with them?"

So they called their friends who set the rules and had them rule that you could patent any gene you wanted..
And they went to work patenting everything they could get their hands on. Cranking the shit out like it was 1999.
Somehow people managed to get their act together and raise a stink about this and the patent office tightened their rules. Now you have to show how you found the gene, what you think it might be useful for etc. But I'm positive these rules are bent around like bamboo sticks.

So now we have all of the squatters who did the original landgrab vs. the legitimate scientists wanting to do real research.

It's obvious what should happen. The landgrabbing squatters (funny applying this term to the already filthy rich corporatists) should be kicked out on their arses and research proper should begin.

Is it going to happen? probably not. Don't forget how this story started, the powerful pulling the strings.

Re:It's shameful.

[joe270]

It is shameful because it points to the problem with the US healthcare system as a whole: it is based on capitalism. There shouldn't be a profit motive of any kind when it comes to healthcare if you believe in the premise that "all men are created equal". It introduces inequalities based on economic status.

Don't get me wrong...I don't necessarily trust the government to run the healthcare system (like Canada) either. I think that would result in a hugely inefficient system. But something is clearly wrong with the way things are now.

Huge implications for Oz

[naden]

On a side note its amazing how much the medical/software industries are alike wrt to patents. Too many 'obvious' or fundamental concepts are allowed to be patented, thus making it very difficult for progress to continue. And with medical/software, a lot of progress demands priori knowledge to be available.

Back on topic .. the role of patents are a big issue at the moment in Australia as we decide whether to a) sign the FTA with US unconditionally, b) don't sign or the more likely c) sign but with conditions. One of these conditions is that drug companies should not be allowed to sue generic drug manafacturers for patent infringement without very good reason.

Questions maybe some people can answer:

1) Is there a strong likelihood of drug companies not continuing to invest in drug R&D if they are not allowed to maintain a monopoly for some period.

2) Do the major 5 drug companies develop the most life saving drugs or are they mainly nice-to-have (but profitable) ones like Viagra.

Re:Huge implications for Oz

[urbaer]

According to our (Oz's) glorious leader (Howard)the proposed Labour ammendment "would discourage innovation and the creation of new ideas, which are precisely the things that this country ought to be encouraging rather than discouraging".

Maybe someone should send him this article.

The ammendment is likely to be passed though, so it seems that the only reason goverment had this debate was to see who could speak more like an Aussie for the US Press (I think Latham won).

Interesting article from Crikey gets a bit more down and dirty with the issue.

Re:Huge implications for Oz

[FFFish]

There is a BIG difference between patenting a drug that cures a disease, and patenting the disease itself.

I think the latter is where we're heading.

Invalid

[Kevin Burtch]

These patents can't stand, and should never have been given in the first place.

To receive a patent on something, you have to have INVENTED IT (like a lightbulb).
You cannot patent something you DISCOVER (like a comet).

Do these companies claim to have invented humans, or just certain diseases that have been around for millenia?

Re:Invalid

[Elledan]

"But they can patent the process for manipulating that gene a certain way, or conducting tests on that gene that might produce a certain response [..]"

So, has the use a hammer to drive a nail into a piece of wood already been patented?

Can one patent a way of solving a mathematical equation? Or any other operation in mathematics?

Then how in the world can things like algorithms (gif, mp3, and many others), let alone tools (macro- or microscopic) and ways to use them be patented?

Prior art

[St. Arbirix]

Isn't the existence of the gene prior art? I really need some explaining as to how this works. How is this patentable material?

If funding for scientific research is based on the idea that a company can invent something around those discoveries I fully understand. But what this sounds like is that companies are allowed to patent the fundamental rules discovered and not actually a product of any creative work. It's almost like a company patenting the use of strong or weak forces in an atom upon their discovery. Or someone patenting the human digestive tract.

I'd like to hear that there's something to this that I'm not understanding. Unless someone is actually *creating* this genes then I don't see how thay can be patented.

--Matthew

Re:Prior art

[Anonymous Coward]

In this vein of thinking, shouldn't someone simply, oh I don't know, challenge the patents? I realize challenging them may not be the easiest thing in the world, but it gets crap like these gene-patents done with before the issues become even more serious.

That said, I'm a coward (and not just an anonymous one), so don't get set to see me challenging anything.

Re:Prior art

[Ohreally_factor]

Yeah, please can some expert step forward and explain this to us? I share the same gut feeling that this is somehow wrong and an abuse of the system.

Is it because it's actually gene sequences that are being reversed engineered and patented, rather than the entire genome being patented in one fell swoop?

Another DNA patent story on wired sheds a little light:

"You can't patent a gene sequence just because you know it," he pointed out. "The sequence has to be novel, useful, and you have to teach somebody how to use it. Those patents will always be available." --William Haseltine, president of Human Genome Sciences

Another interesting tidbit from the article:

"No other sector of the economy depends as much on strong patent protection or on the flow of information from academic science as pharmaceuticals and biotechnology," the authors wrote. [Refering to Dr. Robert Cook-Deegan, director of the National Cancer Policy Board and Stephen McCormack, president and CEO of AlleCure]

[Emphasis mine]

Re:Prior art

[obeythefist]

More interestingly.

If you suffer from a disease that involves a certain gene code that is patented... surely, the "creator", who owns that patent, is responsible for you having it, and therefore liable? Or will they be able to sue you for third degree patent infringement?

If a patent holder prevents you from obtaining treatment for your disorder, can you then sue them for withholding information vital to your survival, which is in essence actively preventing your path to continued survival?

I think that establishing a legal precedent whereby a patent holder of genetic information becomes liable for either a) damage caused by their gene or b) criminal prevention of an individual from obtaining treatment to a life threatening condition would be a wonderful disincentive for patenting the blatantly obvious

DO NOT call your lawyer!

[Dark Lord Seth]

I patented the "Bullshit" gene. Therefore, all lawyers, politicians, CEOs and feminists aren't allowed to do anything at all unless they pay me substantial amounts of money for using my gene. US elections are coming and this patent is going to make me fuckin' RICH!

Also, feel free to mod me down, but only after a 250k Euro deposit to my Swiss bank account as pre-emptive settlement for patent violation. :)

Consider abolishing patents?

[Thinkit4]

It's sort of a Keep It Simple Stupid choice, isn't it? It'll happen.

Patents are bad certainly for my health

[acidrain]

I think I suffer elevated blood pressure every time I read a patents article on /.

So... what can't I patent.

[jabberjaw]

I am actually being rather serious. If I can patent a gene, what can't a patent? Is it feasible that I could patent a molecule such as dihydrogen monoxide. Could I patent a elementary particle such as the Higgs?

Re:So... what can't I patent.

[IBX]

Higgs is supposed to be naturaly occuring so you cannot patent its creation/invention. But even though you cannot patent Higgs as such, you can patent "novel and non-obvious" uses of Higgs boson (which could be defined rather broadly in your patent and can seem obvious to anyone except lawyers). But if your want your "use" patent to be worth anything, you should provide several ilustrative practical examples of such application. Otherwise you run high risk of your patent being butted into by somebody who later has a good practical example and claims that his case has some unexpected novel qualities which deserve separate patents)

The safest intellectual property is to create and patent something that has never existed before - then you own the thing and whoever wants to use it or files additional patents on its uses has to be dependent on you as long as your patent lasts

How?

[Kris_J]

If the patent holder didn't know this information about these genes, how did they patent them? This sounds more like staking a claim and hoping to strike gold.

I have some experience in the field..

[SimianOverlord]

..being a molecular biologist. When automated gene sequencers came out, it was possible to screen large numbers of genes for alelles with suspected linkage to various disorders, by comparing large numbers of 'healthy' and 'diseased' sets and hitting the database with various statistical methods. This led to quite a few companies who were doing this patenting whole swathes of genes, but the current opinion is that these patents would not stand up to scrutiny.

In most cases the patent holders have not demonstrated a use for their patent (because they don't know what the gene does without further study), so would lose it. They got a patent, without knowing what a gene does by comparing it to existing genes, looking for similar domains and guessing a functional role i.e. kinase, src homolgy, DNA binding domains like zinc finger motifs, transmembrane helices etc. etc.

Another point is that they haven't worked on each gene in their portfolio since their patent was awarded. I'm certainly no expert, but if you patent something but never use it, or demonstrate a use for it, after some period of time the patent is easily annulled.

The ownership of the genome is a grey area at present, as few government around the world are keen to meddle in what really is a natural resource in the ownership of everybody. It is currently being left to market forces to determine what level of ownership can be given to someone who has put a lot of R&D money into understanding the genetic basis of disease. It is pretty ludicrous, however, that some part of the DNA in my own cells has an ownership right asserted over it by another company or individual.

Re:I have some experience in the field..

[Teancum]

Yeah, wouldn't 4 million + years of use be considered prior art?

If a biologist were able to form their own unique RNA/DNA pattern from scratch and truly "invent" a gene or sequence, I might buy the concept of a patented genes. Particularly if you could write out a gene sequence like writing computer software to a hard drive and "build your own monster"(tm).

Molecular Biology isn't quite there yet (close, and may get to that point), where you can stick in a CD-ROM or download an image over the internet and manufacture an oil-eating bacteria from nothing but raw amino acids. In theory that should be possible, but there is a long way to go for basic science to even understand biological processes to accomplish that task.

The trick here, and the argument that needs to be made, is how we as a society should reward individuals and companies doing basic research in this area. There are also existing gene sequences that can be "discovered" in nature that can prove to be useful, simply because genetic evolution has made many proteins that are quite useful for living things. This is also related to drug patents in the sense that herbal medicines tend to get overlooked because they are not patentable, but if you can demonstrate a novel chemical formula for a related compound that will be patented.

Of course, we are expecting lawyers and judges to understand science, and that is expectig quite a bit.

Re:I have some experience in the field..

[Teancum]

Just because a bunch of guys sitting around think that somethng is constitutional or legal doesn't make it so, although in this case it is people who supposedly understand patent laws and make "rulings" on these issues.

The patent system is broken, and IMHO political concerns and $$$ are getting tossed around pushing for gene patenting. At least there is a debate going on, but the following statement is somewhat disturbing:

Many arguments against patenting of any genetic material were heard, mainly based upon the premise that genes are part of nature and have not been invented by anyone, thus should not be owned by anyone. The PTO firmly rejected this notion based upon the fact that a gene may be removed from a person, then a clone of that gene may be made in a machine, which is then not a part of nature, but a product of the lab.

What I find incredible is the complete rejection of the arguments against gene patenting. And the idea that other avenues for encouraging gene research with patent laws aren't being explored. A patent should be encouraging novel concepts, and that is what the general public believes the patent system does. That there is a difference between the rose colored view of patents from Thomas Edison that you learned about in grade school and the actual patent system should explain why there is general popular support for the current system.

I would put my political support on those individuals who spoke up arguing against patenting of any genetic material. I think that most diagnostics and manufacturing methods involving genetic material could be covered under existing conventional patent laws and regulations if the patent examiner and the applicant were only a little more creative during the application process. Specifically patenting a DNA sequence, even if you can identify what it does and how to use it, should not by itself be patentable.

That the USPTO is granting patents on stuff like this is besides the point, and I don't like it when that happens.

In my original post in this thread, I was trying to suggest that it would make sense to permit a totally unique DNA sequence to be patented that does not exist normally in nature, just like if you wanted to patent a new chemical. The problem with this in regards to genetic material is that science isn't quite up to "growing you own" DNA in that way yet (for the most part).

Patents should not be about patenting a discovery, like discovering a new species of bacteria on the ocean floor that makes gold out of seawater (extracts, whatever). You can't patent the bacterium, but you can patent the process that uses the bacterial wastes to refine the gold from that point. This is basically what the gene researchers are trying to do is to patent the bacterium, or at least the gene(s) that do the gold extraction.

Re:I have some experience in the field..

[the eric conspiracy]

I was trying to suggest that it would make sense to permit a totally unique DNA sequence to be patented that does not exist normally in nature, just like if you wanted to patent a new chemical.

You miss the point here. The PTO *IS* treating DNA like it were just another chemical.

There is a huge body of patent law and precidence covering chemicals. The ruckus is that the PTO is very much trending towards treating DNA as just another chemical, much to the dismay of the the people who seem to want to treat DNA as some special material. And the fact of the matter is that if you make a chemical in pure form where previously it only existed in nature combined with other materials or in an impure form you have made a new composition of matter under patent law. Not 'discovered' because the fact is the pure form never existed in nature. Patents cover not only molecular structures but mixtures and other compositional variations as well. It doesn't have to be a molecule. All it has to be is a new form.

A new composition is part A of getting a standard chemical patent on that composition. Part B is showing a use for that new composition.

There are MANY such patents issued every year for an amazing array of products. The PTO is just applying that to DNA.

It's classical patent law the way it has been practiced for the past 200 years. Compositon of matter patents are well established - what has got people torqued is that the PTO is applying these well established principles to DNA, which of course from a pure scientific viewpoint is just another chemical. Very important functionality, but nonetheless GATTACA which are pretty simple amino acids.

People are free to argue that DNA is special, but in order for the PTO to treat it as special there will have to be some changes in precidence or the law. Until then they are pretty much on solid legal ground to treat DNA as a chemical.

The patent holders are reasonable

[sybert]

Read the article. The patent holders have been very willing to license patents for free for the mentioned non-profit testing. Patent holders are rational, if there is value and little money they will license patents for free rather than block useful treatment. If there is money, then they will license for an affordable amount because they cannot make any money from patents if they don't license them.

This isn't free software or the third world, American consumers are quite willing and able to spend large amounts of money on patented medical products (drugs) for their health.

Re:The patent holders are reasonable

[eraserewind]

How kind of them to allow us to use human genes if there is no money in it. And how surprising that people are willing to spend money on their health.

Reckess Endangering due to Patented Medicine

[ralatalo]

Car and Gun makers get sued because of their products, people get sued because they didn't take action that could have prevented some 'harm'

So, how long before their are law suits against the patent holders because they are "reckless endangering" people because of how they are treating the patents?

If a patient dies because they can't be given a certain treatment because of patents, I know that I would considering sueing. And I am not one of those that would considering sueing because I ordered hot coffee and got burned because I spilled it on myself.

This is where I think it will get interesting