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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
Surely if you patent the trolls parts instead then you've got them by their own petards :-)
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
A sad day ... when parts of the human body can be copyrighted.
They can't. Neither can they be patented (which, by the way, is completely different than copyright).
What can be patented (but not copyrighted) is the process of performing diagnostic tests on a certain gene. To quote the article:
"Myriad's patents give it exclusive right to perform diagnostic tests on the genes -- forcing other researchers to request permission from the company before they can take a look at BRCA1 and BRCA2, the ACLU said. The patents also give the company the rights to future mutations on the BRCA2 gene and the power to exclude others from providing genetic testing."
This is not a good thing, but it does seem to fit within the scope of patents. This is more reason for patent reform.
"You cannot simultaneously prevent and prepare for war." -- Albert Einstein
Michael Crichton's Gene Patenting Rant
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.
What can be patented (but not copyrighted) is the process of performing diagnostic tests on a certain gene.
Their particular diagnostic test or any diagnostic test?
The former I can understand. The latter is yet another example of why we need patent reform. There is plenty of prior art in testing genes for the purpose of performing diagnoses. Once a broad claim has been made in another patent, or recognized in current practice, a narrower claim included in that should not qualify for a patent.
Have gnu, will travel.
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
A bunch of folks have said in this discussion that patenting the gene doesn't patent the gene itself, but only the method of finding it, the method of using it, and other methods having to do with the gene.
It is true that methods for doing all those things are patentable subject matter, but an inventor can also get a patent on the gene itself if the inventor is the first to purify that gene from its surrounding environment. The landmark case for this proposition (that chemicals found in nature are patentable in their isolated and purified form) is called Parke-Davis v. H.K. Mulford 189 F. 95 (S.D.N.Y. 1911). I tried to find a link to the case online, but couldn't find anything for free. The case concerns purified adrenaline, which before the invention at issue could only be used in conjunction with the rest of the junk in whatever gland produces adrenaline. The court held that purified adrenaline was different enough from the adrenaline found in nature that the substance itself could be patented. This is the basis for gene patents and also pharmaceutical patents (most of the drugs you take can be found in nature, just not in purified form).
IANAL and IANAG (I am not a geneticist). However my wife works for Genbank (http://www.ncbi.nlm.nih.gov/Genbank/). She is a geneticist and we've discussed this issue. When a company patents a gene they have the rights to information and usage of that gene. This essentially halts research on the gene, because anything you discover is owned by the company with the patent unless you work out some type of licensing agreement. This is bad for medical research because a company won't study a disease if the gene is owned by another company. Any cure or medication they came up would not be usable without licensing. Considering the high cost of medical research, it's just not worth it do research unless you own the patent. Companies are in the process of patenting every gene they can find in hopes that one of them will be important for instance the genes described in this article that relate to breast cancer.
Comment removed based on user account deletion
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.
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,
Well, you're falling into a very serious error here by setting up a false dichotomy. "Regulation" and "Free Markets" aren't in any way opposites. Regulation is absolutely 100% necessary to the existence of anything even remotely approximating a free market. "Unregulated markets" and "Regulated markets" are actual opposites. Unregulated markets will never be anything like a free market. A properly regulated market can approximate a free market.
An actual free market doesn't exist, has never existed, and can't possibly ever exist under any conceivable set of circumstances. It's an idealized hypothetical thing like the various frictionless planes, pulleys and such from high school physics.
As long as people keep pretending that the debate is how you framed it, then there will never be reasonable discussion of the issue in the public domain. This is especially true since the people who benefit from un or poorly regulated markets are the ones framing the debate since they're the ones who own all of the media outlets etc.
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.
The right consists primarily of the people who own the powerful corporations and the idiots who have been duped into believing that "the Right" means "Liberalism" (Small government, fiscal responsibility, individual liberty etc) when the right is an inherently elitist philosophy. Heck, the right is called the right because the representatives of the church and aristocrats sat on the right in the French assembly. The right *is* theocracy, feudalism, fascism etc. The representatives of the people sat on the left, hence the term "left", and hence the association of the left with "the people" against the "elites".
Liberalism came later and was a rejection of *both* the left and the right. Left and right are both about using the power of the state to screw people for your benefit. Liberalism is the philosophy that nobody or group should be able to use the power of the state for the purpose of screwing individuals.
It is the philosophy that America was explicitly founded on. People today don't even know that. They think "Liberalism" means "whatever somebody calling themselves a 'Liberal' says" which is obviously a worthless definition. There doesn't exist another word in the English language apart from "Liberalism" to describe America's founding philosophy, so it makes it tough to discuss since the Left have coopted and the Right have demonized the term. This is because both the right and the left *despise* Liberalism and always have.
So, you, by pretending that the right stands for liberalism and the actual right doesn't even exist aren't helping to promote a more honest dialog, you're helping promote a redefinition which removes the terms necessary to accurately describe the political landscape.
The powerful corporations are perfectly happy to have massively oppressive regulation of the people for their benefit. The recent bailout is a right wing initiative. *I*, the individual, was robbed at the behest of said corporations for their benefit.
When "the rich" are robbed for the benefit of "the people", that's the left. When nobody is robbed by anybody by the government, that is a distinctly different position from either of the above.
That very real and very critical distinction is entirely eliminated by the redefinitions you're going with.
That is one of if not the most critical thing standing in the way of honest, non-partisan debate in this country. We don't even have to words to have such debate.