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US Says Genes Should Not Be Patentable

Posted by Soulskill on from the roddenberry-siskel-and-simmons-agree dept.

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."

14 of 127 comments (clear)

  1. Monsanto will most likely get this reversed by bl8n8r · · Score: 4, Informative

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

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    1. Re:Monsanto will most likely get this reversed by h4rm0ny · · Score: 4, Insightful

      All the more reason to write to your representatives and tell them how you feel about this. Of course I'm in the UK, but if the US rejects patenting genes, that will help the cause for all of us.

      --

      Aide-toi, le Ciel t'aidera - Jeanne D'Arc.
    2. Re:Monsanto will most likely get this reversed by toppavak · · Score: 5, Informative

      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.

    3. Re:Monsanto will most likely get this reversed by Schadrach · · Score: 3, Interesting

      Wouldn't this at least keep them from declaring that fields adjacent to fields that use their seeds and somehow end up with genes from their "sterile" plants are somehow in violation of some kind of agreement or patent, since the genetic sequence itself can't be owned by Monsanto?

    4. Re:Monsanto will most likely get this reversed by khallow · · Score: 4, Informative

      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.

    5. Re:Monsanto will most likely get this reversed by Dachannien · · Score: 3, Insightful

      The present case has nothing to do with Monsanto's products or patents. What's more, patenting genetically modified organisms is already settled case law.

      http://en.wikipedia.org/wiki/Diamond_v._Chakrabarty

    6. Re:Monsanto will most likely get this reversed by Dachannien · · Score: 3, Informative

      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.

    7. Re:Monsanto will most likely get this reversed by GooberToo · · Score: 3, Interesting

      Genes exist completely independent of man's awareness of them or not. By legal definition they are a discovery, not invention. Again, by legal definition, they do not and never have qualified for patent status. As such, I've never understood why they have ever been allowed in the first place.

      Imagine someone patenting oil, air, cotton, atoms, so on and so on. All of these are discoveries, not inventions. Literally, allowing gene patents is the exact same thing as being required to pay a royalty on breathing and yet everyone says that would be completely absurd - and yet, we are all holding our collective breaths here.

      Now if only I could patent stupidity in government...

  2. It's not like the DNA was already functioning by RichMan · · Score: 3, Funny

    It's not like the DNA in-situ was already functioning perfectly. Opps, I guess it was.
    So what did the pharma company "invent" to earn the patent?

    1. Re:It's not like the DNA was already functioning by RsG · · Score: 4, Insightful

      That's my basic take on it as well.

      Genetic modification and tailored organisms should be patentable. For example, if someone were to develop a useful modified single celled organism that processed sewage into biofuel, I could see patenting that as valid. It's engineering after all, just with genes instead of gears.

      But discovery has never been patentable in any other field, and that's what's being discussed in TFA. You can't patent if there's prior art, can't patent something you've found rather than made, and can't patent abstract scientific knowledge. You cannot patent the lever or pulley, and in a mechanics to biology comparison, those are the best analogues to genes. Except it's even worse, because those two examples were developed by humans in the first place, so at least somebody long dead could claim ownership, whereas genes are strictly a natural occurrence.

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    2. Re:It's not like the DNA was already functioning by RsG · · Score: 5, Informative

      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.

      --
      Erotic is when you use a feather. Exotic is when you use the whole chicken.
    3. Re:It's not like the DNA was already functioning by MartinSchou · · Score: 5, Insightful

      Personally, I think deconstructing the human genome is somewhat more complex than designing an opamp, but hey, that's just me.

      It may be more complex, but that does not make it an invention.

      Show me where I can find a ratchet wrench, and I'll call it a discovery.
      On the other hand, I can tell you where to find pretty much all the genes that are patented - in organisms that nature derived on its own.

      Now - if, on the other hand, some company designs a gene, that does something that has never existed in nature - that'd be an invention. But moving genes from a fish into a plant isn't an invention, any more than adding "on the internet" onto already existing technology makes that worthy of being patented. Very neat, and you should probably be allowed a patent on the technology used for it.

    4. Re:It's not like the DNA was already functioning by dAzED1 · · Score: 3, Insightful

      moving minerals from a rock into a bar of iron which is forged in to a wrench is just just taking technology that already existed and moving it somewhere else.

      That's silly. If you find a fish that glows in the dark, a bacteria that produces less harmful byproducts, and another bacteria that can eat crude oil - and you combine the three traits into a bacteria that glows in the dark, eats crude oil, and has less toxic byproducts...you've created something new. No less so than taking wheat that someone else invented, grinding it up, and combining it with water that someone else invented to make bread.

  3. This Just In From the "No Shit" Department by RobinEggs · · Score: 4, Interesting

    You can't legally patent something with 7 billion instances of prior art, nor should you be able to acquire a patent that all seven billion people in the world will involuntarily infringe ten million times a day.

    Thank you, Justice Department, for another flash of the blindingly obvious.

    Of course, if the DOJ has to spell this out, and the institutes that control our federal research dollars in health still can't see it, how does this bode for truly cooperative health research in the US? Not well, I'm guessing.