Slashdot Mirror
Breast Cancer Gene Lawsuit Argues Patents Invalid
bkuhn writes "The ACLU and the Public Patent Foundation have filed a lawsuit
charging that patents on two human genes associated with breast and
ovarian cancer are unconstitutional and invalid. The
lawsuit (PDF) was filed
on behalf of four scientific organizations representing more than
150,000 geneticists, pathologists, and laboratory professionals, as well
as individual researchers, breast cancer and women's health groups, and
individual women. Individuals with certain mutations along these two
genes, known as BRCA1 and BRCA2, are at a significantly higher risk for
developing hereditary breast and ovarian cancers."
Can someone explain to me why it's legal to patent genes in the first place? I thought patents were supposed to be for new and unique inventions.
http://twitter.com/OLDTELEGRAM
when parts of the human body can be copyrighted. It won't surprise me if, sometime in the future, when giving birth to a child you must pay royalties to patent trolls, or else your baby will be seized and destroyed for violating patents.
Patent a gene and then sue anyone who has it. Even better would be to copyright it and then get $700 per copy in the body.
Undetectable Steganography? Yep, there's an app fo
Can anybody explain what patenting the genes actually means? The articles aren't too clear. They're still in the public databases: BRCA1 and BRCA2. This includes the sequence, SNPs, transcript information and all the other goodies. In fact, the Ensembl home page still lists BRCA2 as an example for its search box...
I can understand they might patent technology they have developed that is associated with those genes, which seems fair. But if all this information is still available, they haven't really patented the gene itself.
When I was reading the article, it was like I was reading this novel: http://en.wikipedia.org/wiki/Next_(novel)
And here I thought that the Crichton book was just some random over-the-top science fiction. It's sometimes scary, when SciFi turns into reality.
Michael Crichton's Gene Patenting Rant
If I'm carrying a patented gene, should I pay royalties, or should I get the patent invalidated on grounds of prior art?
"The number you have dialed is imaginary. Please rotate your phone 90 degrees and try again."
I just want my wife's breast cancer _gone_... it's been 3 years now, post diagnosis.
I think Nature has prior art...
GENERATION 26: The first time you see this, copy it into your sig on any forum and add 1 to the generation. Social exper
What's extremely interesting here is that the ACLU is taking the approach that the idea of patenting something that existed already is unconstitutional. What happens then when CERN tries to patent any invention stemming from the LHC, or to the already existing patents on interferon or the artificial lung? These things existed in nature long before they were patented, but the patentors (not sure if that's a word, but I'm using it anyway) either discovered them or made them work where others had failed (except nature, of course).
This type of Lawsuit is doomed to fail, which begs the question - why is the ACLU really doing this? I know they're a hell of a lot smarter than I am, so they should know this lawsuit will likely not succeed. So why file it? Why not just encourage the office to reverse the patent? Or grant some kind of conditional "academic" licensing?
You can't patent ice, snow or slush - why? Because these are naturally occuring items. You cannot patent a mathematical function (1+1=2), an obvious extension of a patent (make an iPod entirely chrome plated), naturally occuring item (wood), or something that has been in the public domain.
No one invented the genes in our bodies, so how can anyone own a patent on them? If I patent the gene that turns Breast Cancer 'off' - then can I sue men and women who possess that gene without my permission? If someone has breast cancer, and it goes into remission - can I chose to 'gather my property' by imprisoning that person and extacting the gene that I own rights too?
Crighton's book, "Next" was an excellent novel based on this entire theory. No one should have the 'rights' to any gene.
I'd imagine pretty much everyone who's ever discovered a means of diagnosing any health problem is kicking themselves, right now.
As for me, I'm off to go write up a paper on a new disease, but not before I patent the process to validate it's existence!
I don't think you should be able to patent discoveries, only inventions. Can a law scholar speak as to how we got to this point?
Where is Larry Lessig?
Think Deeply.
it goes BEYOND definition of 'prior art'. that gene was there even before mankind was able to draw pictures on cave walls, leave aside any notion of a 'patent'.
this incident shows how insanely stupid u.s. patent system and accompanying greed has gone. we are one step away from someone trying to patent homo sapiens sapiens. such patent applications should not only be rejected, but also heavily fined for trying to abuse the system.
Read radical news here
So is someone passes on this gene is it copyright infringement?
This actually leads me to consider whether a record company or similar could file a patent on a pop group they artificially injected into mainstream, and what the concequences of that would be.
Or indeed to file a patent on the concept of a "manufactured" pop group. Would other record companies be prepared to admit that they have effectively created groups from nothing in order to claim prior art and stop the patent in the first place?
74.117.115.116 32.97.110.111 116.104.101.114 32.80.101.114 108.32.104.97 99.107.101.114
I know, I know. We don't do that here. But it's a shame because it actually does help in this case.
Basically, a company found that if a gene exists, the patient has increased risk of cancer. And so they made a test to determine if that gene exists. And then they patented their invention, because they want to be the ones to profit from their work.
Other than "cancer" being important in the story, it's like any other patent case. A company made a unique discovery that they want to profit from. Other people don't like that a patent restricts them.
Same old story.
The First Amendment argument that this patent limits the "free flow of information" is stupid and will be dismissed immediately. The whole point of patents is to grant a time limited monopoly on the use of that "information." If you have to use such a lame argument, you know at the beginning that you are going to lose.
It's almost certainly a patent of the procedure for isolating/identifying/testing with the genes.
This is why procedures shouldn't be patentable.
By definition, they're not inventions, but procedures.
Question everything
"The company also charged $3,000 a test, possibly keeping some women from seeking preventive genetic testing, the ACLU says."
Only in America we can be so greedy as to patent a life saving procedure and sue everyone who intends to use it for noble purposes.
-Qs
...prior art?
You must wait a little bit before using this resource; please try again later.
Gene identification and observation methods have been around since the late 1960s or early 1970s. Almost everywhere else in the world genes and the like are not patentable nor are the standard academic observation systems. Genes are identified not invented. Only in the US can you get a patent on somebody else's work which is often in the public domain for years - known as prior art I'd suggest.
Human gene is part of nature and is what naturally occur with or without man interaction or interference. Therefore no one person or entity can patent and own exclusive right to something that they do not have part in creating; there should even be an argument about this, the patent office should know better then to entertain these f*cks.
> Can someone explain to me why it's legal to patent genes in the first place?
> I thought patents were supposed to be for new and unique inventions.
Agreed. That's why I'd let them patent the gene to breast cancer. If they invented breast cancer, then they're accepting responsible for it.
I'll leave it to the lawyers in the Slashdot crowd to follow this to it's logical conclusion.
ACLU, PO box 96265, Washington, DC 20090-6265
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I don't think you should be able to patent discoveries, only inventions. Can a law scholar speak as to how we got to this point?
Sure... We got to this point by only reading the misleading Slashdot summaries rather than the actual patent, and thus believe that it's a patent on something nature created.
From what I understand, there's a few common methods that everyone uses to deal with genes.
Translating to code.
Genenome.extractGene(chromosome, subPart) : Gene ... ) : Boolean
Gene.getEncoding() : GeneEncoding
GeneEncoding.equals(
Those are standard things that everyone can do.
So to find out if a gene is responsible for something you take a whole bunch of normal people, and a whole bunch of people with a condition.
You extract genes, and see where they are equal or not. Likely with some algorithm that's a lot better than a linear search.
Then you find a gene that differs between groups with a highly reasonable amount of confidence.
You call that gene something, say "BCR1" and you point out it's location, say chromosome 17, sub part 172. (I have no idea how you actually specify that)
Then, you patent it.
Now, nobody else can do a Genenome.extractGene(17, 172) without violating your patent. That makes research on the gene REALLY HARD to do. It essentially makes it so you can't study or develop cures for the condition.
I'm not a laywer, patent expert, nor a geneticist, so I might be way off. But that's how I tend to think of it.
> The reason that it's legal to 'patent genes' is that is very, very, very (did I mention very?) expensive to discover which gene(s) control an aspect of a plant or animal.
It is really, really (did I mention really?) expensive to find a bug. I remember spending 3 months, with a colleague, to find a really unpredictable one. He used another method than I did. Did WE apply for a patent? Off course not! We were just bloody doing our job!
So why on earth does that justify a patent?
That wouldn't be a right, it would be an entitlement. A right is something that you already have and no one can take away. An entitlement is something that you don't have and someone must give it to you.
Problem with entitlements: someone must pay. A government that's totally broke may still respect your rights but entitlements must be planned into the budget.
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And a good example of why I DON'T donate money to the ACLU
http://www.stoptheaclu.com/archives/2006/02/11/aclu-and-lesbians-attack-boyscouts-in-9th-circuit/
They have an agenda, fine, that doesn't mean everyone has to preach it for them also.
Sure... We got to this point by only reading the misleading Slashdot summaries rather than the actual patent, and thus believe that it's a patent on something nature created.
Err... this WIPO article on the patents in question claim that the holders have patented an "isolated DNA coding for a BRCA-1 polypeptide", which certainly sounds like something nature created to me.
Both posts above should be highly modded because people need to realize that even if you are a single-issue voter, there is no such thing as a single-issue politician.
What the "left," or at least presumed "left" member nomadic, also needs to realize is that just because the "right" doesn't like government regulation doesn't mean that they all believe corporate power should be unlimited. Neocons, sure, but the growing number of pre-2000 party platform republicans (I had to restrain myself from writing "real republicans" (and still included it parenthetically!)) think that government regulation gives corporations more chances to skew regulations in their favor, and that a free market adhering to existing laws against fraud and negligence would do the same job better by getting rid of costs of compliance (i.e. mountains of paperwork).
Of course, you are welcome to disagree that this will work because neither regulation nor free markets have a pristine track record, hence the continued debate, but claiming that the "right" wants to be ruled by powerful corporations because of deregulation is like claiming that the "left" likes to kill babies because they want to allow the choice of abortion. Some fanatics do indeed claim this, but returning specious vitriol with more specious vitriol only results in more of what osgeek was lamenting.
The more honest dialog we have, the more the non-partisan corruption in congress will begin to stick out. You have to see it before you can excise it.
Your brain is not a computer.
Not only are you at risk for contracting breast and ovarian cancer, but now you can be sued for patent infringement too!
I've abandoned my search for truth; now I'm just looking for some useful delusions.
And a good example of why I DON'T donate money to the ACLU
http://www.stoptheaclu.com/archives/2006/02/11/aclu-and-lesbians-attack-boyscouts-in-9th-circuit/
They have an agenda, fine, that doesn't mean everyone has to preach it for them also.
Wow. What a hate-filled, ignorant propaganda piece. I mean, seriously...
Judge Napoleon Jones said in his 2003 ruling the Boy Scouts are a religious organization with a "religious purpose" because adult leaders and youth members are required to believe in a "formal deity" and to swear duty to God.
Sounds reasonable to me. You don't need to back a specific domination to be a religious organization; any organization that would exclude atheists and/or polytheists clearly has its own religious agenda, and government support of such an organization is clearly unconstitutional, and rightly so[1].
The ACLU want to force the BSA to welcome professing homosexuals and even to recruit gay Scout leaders.
Yes. Practicing discrimination against homosexuals is unlawful, not to mention morally repugnant. I'm not surprised the ACLU wants to stop this.
They'd also like to erase the mention of "duty to God".
Yep. Right there with them on that one. If this organisation wants to receive any form of state support, it has to openly accept people of all religious beliefs, including atheists and polytheists for whom this statement would be a violation of their own religious beliefs. If it doesn't want to do that, the ACLU see it as their job to stop it from receiving any form of state support, as is their legal right.
But then, it's not surprising that a group that embraces NAMBLA would be tied up in knots by the Boy Scouts, an organization grounded in a traditional morality, promoting faith, family, and self-reliance. Such old-fashioned American "bigotry" seems infinitely more repulsive to the ACLU that the depravities of child sexual abuse.
NAMBLA is a political, campaigning organisation. We may find what they are campaigning for repugnant, and I'm sure most ACLU members do to. But we also believe that NAMBLA's members right to _say_ whatever they want to say is critical. The "bigotry" referred to above is discrimination against homosexuals ("traditional morality" in the words of the article) and discrimination against those whose religious beliefs contradict those of Christianity ("promoting faith"). This bigotry is actively pursued by the BSA. NAMBLA, as an organisation, does not sexually abuse children. Many of its members, AIUI, while they would _like_ to do so, have never done so either. The organisation exists only to spread the word about how these people want to change the law, a perfectly legal activity, and one that is protected by the US constitution.
This is why ACLU attorneys and their allies are working furiously to force the Boy Scouts to accept scoutmasters who engage in homosexual behavior
That'll be because homosexuals have a right not to be discriminated against on the basis of their sexuality. It's a basic civil liberty, which the Boy Scouts have repeatedly attempted to subvert.
despite studies showing that those who engage in such behavior are more likely to become pedophiles than those who don't.
Studies say that black people are more likely to commit crime than white people. Perhaps we should send them all away somewhere they can't get access to us law-abiding people to make sure we're safe from them. This is the same logic that this article is using.
Behind the blitzkrieg against the Boy Scouts is an essential conflict of interest: The ACLU is paving the legal way for an atheistic, libertine society, which puts them at cross-purposes with the God-fearing, self-disciplined kids who help old ladies across the street.
No, the ACLU is working to protect the constitutional rights of Ame
The way I see it, this lawsuit comes down to "money vs. common sense". Unfortunately, the odds are heavily leaning towards the former if the past is any indication.
The DNA in question must be "isolated". The DNA is not "isolated" when it is naturally occurring. Nobody is claiming your DNA that you were born with. Only an isolated DNA product.
As the suit points out, removing a naturally occurring product from its original location does not make it any less a naturally occurring product, which cannot be patented.
It's good that you've understood the nature of the patents (they are on specific sequences, not methods of isolating them or methods of using them.) But it's unclear why you, or anyone else, thinks that changing the location and surroundings of a naturally occurring molecule makes that molecule patentable.
It is also not clear why this insane doctrine would be limited to genes. Suppose I find a new species (this happens many times a year, as most insect species for example have yet to be identified.) According the the USPTO I could patent "an isolated individual of species XYZ", thus preventing anyone from capturing an individual of such a species for any purpose.
One could further argue that even studying that species in situ would violate my patent, as obviously the very act of observation constitutes "isolation" by an act of selective attention.
Returning from that little speculative excursion, it's curious that you use the term "product" in your defence of this ridiculous policy, as that term makes it sound like something is being "produced" by the act of removing a naturally occurring DNA molecule from its natural environment. But of course nothing is being produced. There is no "isolated DNA product", there is only "isolated DNA".
And again, it is not clear why "isolated DNA", which is not a product but a naturally occurring molecule, ought to be patentable when naturally occurring products are specifically excluded from patentability. It is also not clear why, if "isolated DNA" is patentable, why "isolated any-other-naturally-occurring-thing" is NOT patentable, as in my absurd new-species example above.
Blasphemy is a human right. Blasphemophobia kills.
I'd say you may be jumping the gun regarding the suit at this point, and indeed appear to be violently agreeing with it.
Let's keep in mind that this is just the original complaint, not a memorandum in support, which is where the issues you brought up are usually addressed.
This will have a few rounds of motions/memoranda and decisions to get to the point where they will argue the above points.
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... filed a lawsuit charging that patents on two human genes associated with breast and ovarian cancer are unconstitutional and invalid
If someone owned the gene the might give me cancer, I'd sue the hell out of them to take it away.
If a farmer's cow gets loose, and damages my property, the farmer is liable. If my car slips out of park, rolls downhill, and crashes into your car, I'm liable. If this gene tries to kill me, I should be able to sue the owner. "What?", you say, "You're the owner of your own genes". Well, not if this patent is valid.
All ideas^H^H^H^H^Hprocesses in this post are Patent Pending. (as well as the process of patenting all postings)
LOL WUT?
No, it's not. For employment or housing or some other Govt. related BS, but not for a private organization.
I didn't bother to read the rest of your BS diatribe after reading that sentence.
by YOUR system. The US govenrment allows a company to patent genes, that company goes international with it and now it applies in my country, and now I get shafted with it, no matter who I vote for. My country (Canada) should elect a communist dictator, just to piss you off. Of course the US will attack and I will get shafted again. Better get the vaseline, BOHICA!
I am not a nerd, I just play one in real life. My avatar thinks I'm a total loser.
the problem is Human Nature. Where ever power accumulates, money and people seeking influence will gravitate there. The more power we give government over our lives, the more people and companies will have to try and influence government. If government had no power (not practical I know) no one would try and influence government officials or curry favor with them. If government is all powerful people and companies would be fools not to try and influence it in their favor by any means available. Governments can issue monopolies (in the form of patents) that can make or break a business. What actions would you expect a business to take? You can no more get rid of this tendency by passing campaign finance laws than you can by outlawing gravity. Where there is power, people will find a way to influence the holders of power. If you want to lessen government corruption, lessen its power.
Wow. Hit that nail on the head, which is depressing to read.
Cheers,
Even though patenting something that existed all by itself makes no sense to me, I would agree to let them treat these genes as their property if they would agree to accept responsibility for them. I'm sure people with breast or ovarian cancer would be eager to sue Myriad Genetics for damages caused by their property.
Typical pinhead "pooh-pooh" reaction. A few moments googling would find you numerous examples. Monsanto is a company of evil lying bastards who will clearly stop at nothing to control as much food production as possible.
Talk about your frightening wanna-be monopolists.
Cheers,
Ah, thank you for clarifying that. Then I would be in the clear, of course, to isolate and clone BRCA1 from my own germline DNA and then develop a diagnostic test of my own. Because, by your interpretation, Myraid could only own the rights to their specific isolate of BRCA1. The current law, however, appears to extend that right to *any* isolate of BRCA1, even one created by completely independent technique from my very own DNA, as well as any application of any isolate of BRCA1 for genetic testing. How this is functionally different from owning the rights to the gene itself escapes me.
What complicates this specific case, as I'm sure you know, is that Myraid did not discover the identity nor the importance of the BRCA1 gene, nor did they develop any unique techniques for isolating it. Nor was it their idea to develop a diagnostic test for the gene (seriously? How could anyone think this wasn't a goal of the scientific community from the beginning?). They were the first to create an isolate, likely by a matter of days, by completely obvious and open techniques, and they were the first to file a patent.
Yes. Practicing discrimination against homosexuals is unlawful, not to mention morally repugnant.
LOL WUT?
No, it's not. For employment or housing or some other Govt. related BS, but not for a private organization.
You are wrong. See this summary of discrimination laws. Quote:
"The Civil Service Reform Act of 1978 (CSRA) [...] provides that certain personnel actions can not be based on attributes or conduct that do not adversely affect employee performance, such as marital status and political affiliation. The Office of Personnel Management (OPM) has interpreted the prohibition of discrimination based on conduct to include discrimination based on sexual orientation."
Your body contains 2 copies each of the BRCA1 and BRCA2 genes. Your copies may be normal, or they may be mutated versions that make you likely to get cancer.
Myriad owns this piece of information.
About you.
The key patents here are not method patents, they are composition of matter IIR the terminology C. If Gandalf showed up tomorrow, waved his staff, and told you by magic what your personal BRCA1 sequence was in return for a gold piece, he would have violated the patent.
This also means technically you cannot pay to have your own genome sequenced unless someone pays a license fee to Myriad.
To bitch about Monsanto: You say that only the isolated gene is patented and patentable, and yet Monsanto is able to lay claim to the non-isolated gene and own a living organism because a subsequence of its DNA could be isolated and match the patent. In that regard, the courts have already blurred the line and this "isolated gene" business is a very real slippery slope.
Again, you board the Fail Train. Reading comprehension much? Nice troll.