US Says Genes Should Not Be Patentable

Geoffrey.landis writes "A friend-of-the-court brief filed by the US Department of Justice says that genes should not be patentable. 'We acknowledge that this conclusion is contrary to the longstanding practice of the Patent and Trademark Office, as well as the practice of the National Institutes of Health and other government agencies that have in the past sought and obtained patents for isolated genomic DNA,' they wrote (PDF). The argument that genes in themselves (as opposed to, say, tests made from genetic information, or drugs that act on proteins made by genes) should be patentable is that 'genes isolated from the body are chemicals that are different from those found in the body' and therefore are eligible for patents. This argument is, of course, completely silly, and apparently the US government may now actually realize that."

Comments

Monsanto will most likely get this reversed

[bl8n8r]

Because it will affect their monopoly, which is anti-capitalist. http://www.sourcewatch.org/index.php?title=Monsanto,_Genetic_Pollution_and_Monopolism

Re:Monsanto will most likely get this reversed

[toppavak]

The majority of Monsanto's patents actually deal with the process of generating the transgenic organism and would be unaffected by this ruling. Similarly, any company with patents on a method for testing for a mutation would be similarly unaffected- only patents that explicitly claim a specific sequence would be undermined. Cambia has an awesome tool that will let you search the USPTO databases for whether patents on certain organisms actually claim gene sequences or just reference them.

Re:Monsanto will most likely get this reversed

[khallow]

which is anti-capitalist

"Anti-capitalist" would mean that they oppose in some way private ownership of capital (which clearly they don't have a problem with). "Anti-competitive" is the better term.

Re:Monsanto will most likely get this reversed

[Dachannien]

You apparently don't understand case law, then. Case law doesn't arise from a jury's finding of fact, because the jury doesn't make or interpret the law, they only decide the facts of the case. The judge, on the other hand, interprets the law and determines how it applies to the case at hand, and the precedents that judges make on their own court and lower courts is what forms the basis of case law.

If you find a case where evidence was excluded, for example, and point out that in your murder case, evidence should be excluded for the same reasons, you very well could get off, ultimately based on case law. But you can't just say that a jury acquitted Joe Sixpack of murder, so that's case law and you should be set free, because it's not case law.

In this case, the Supreme Court decided that GMOs were patentable (albeit by a 5-4 decision where none of the justices sitting on that case are part of the Court anymore). Since the judicial system is the arbiter of the law, and (generally) the courts respect the precedential decisions of their superior courts (the Supreme Court being the big daddy of them all), the only recourse for changing the law is to either convince the Supreme Court to change their mind or to legislate a change in the statute.

Re:It's not like the DNA was already functioning

[RsG]

Except in patent law, there is a distinction between discovery and creation, at least in theory.

It is arbitrary where we choose to differentiate, you're right about that. But the line is drawn on the basis of observation versus utilization.

If I observe that objects of differing mass fall at the same velocity if air resistance is taken away from the equation, I cannot patent that. If I use this observation to determine that slowing decent via increasing surface area is possible, and create a parachute, I can patent that. Or I could if those examples weren't hundreds of years old and therefor covered under prior art.

Identifying genes, where they are and what they do, is observation. Tinkering with them is utilization.