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Ruling Upholds Gene Patent In Cancer Test
diewlasing writes with a report in the New York Times which begins: "In a closely watched case, a federal appeals court ruled on Friday that genes can be patented, overturning a lower court decision that had shocked the biotechnology industry." Techdirt has some insightful commentary on the ruling.
Clearly, patents and copyrights are keeping humanity back from development and prosperity.
"The agriculture ministry is not in charge of Gundam" - Japanese ministry official.
The reasoning being something like this: "If there is money to be made of it then of course it should be patentable".
After the ruling the judge was seen leaving the scene in a limousine filled with naked ladies leased by Myriad.
Aspirin though was more or less in use a few thousand years before the patent and tradename was invented. Although as a natural medicine. See wikipedia for details.
Summary: The appeals court believes that when isolating individual genes, it somehow makes them "unnatural" to the point where they are patentable. Because, at this point, they're no longer "found in nature" (in the form of isolated genes), they're now patentable.
Mike Masnick seems to have the right idea here and notes the following.
Basically, they seem to be arguing that because a severed finger is not attached to a hand, the finger is not naturally occurring, and, thus, is patentable. Think about that. The dissenting judge in this ruling used a slightly less gruesome analogy, saying that the majority was basically saying that while a tree occurs in nature, snapping a leaf off the tree makes that leaf patentable.
And, of course, the opinion of the dissenting judge points this out too and how Myriad hasn't "invented" the gene so this is idiotic.
Me, I gotta agree with that. The technique for isolating specific genes, as the dissenting judge also notes, is probably really difficult and should be patentable. No problem there. But saying something you've *created* with that technique is patentable is complete and utter nonsense. It would be like saying, by processing gold ore (which is the natural form of gold) into refined gold, you now own a patent on all refined gold. (Note that this was also the judge's example and I"m just trying to translate it to something simpler.)
Myriad is claiming the genes themselves, which appear in nature on the chromosomes of living human beings. The only material change made to those genes from their natural state is the change that is necessarily incidental to the extraction of the genes from the environment in which they are found in nature. While the process of extraction is no doubt difficult, and may itself be patentable, the isolated genes are not materially different from the native genes. In this respect, the genes are analogous to the “new mineral discovered in the earth,” or the “new plant found in the wild” that the Supreme Court referred to in Chakrabarty. It may be very difficult to extract the newly found mineral or to find, extract, and propagate the newly discovered plant. But that does not make those naturally occurring items the products of invention.
Now, if they'd done *something* to the gene to make it better, to make it so that it's inherently different from "natural" genes or at least that they altered it without prior knowledge of other similar genes, I'd give them a pass. But isolating a specific part of a gene and patenting it as if it were something they invented? Hideous.
Good point on aspirin. Aspirin *was* patented a long time ago. The patent has long expired, but companies still seem to make a lot of money off of selling it, even though anyone can buy dirt cheap acetylsalicylic acid from Dow and infuse it into their own tablets for next to nothing.
My Other Computer Is A Data General Nova III.
Surely you're kidding about aspirin and ibuprofen. Both were developed by drug companies; they're not apples that fell from the trees into the drugstore.
One of those fell from a willow tree and has been used for more than 25 centuries... (Salicylic acid) the trademark Aspirin was developed by a drug company, around the same time as Heroin.
I thought only inventions could be patented, not discoveries? Does the judge need a dictionary?
My Other Computer Is A Data General Nova III.
And I'm sure the patent has expired which is why the drug companies are suffering to sell these products.
Oh wait. Guess you don't need a patent to sell stuff after all.
I can see a time when a disease is cured thru gene therapy at which time our own ability to donate blood is banned in the same way Monsanto bans the distribution of their genetically modified crops.
I can no longer sit back and allow Corporate infiltration, Corporate indoctrination, Corporate subversion and the international Corporate conspiracy to sap and impurify all of our precious bodily fluids.
Ah, but you're using logic. That's not how the law works.
That I completely agree and that ripping a DVD onto my hard drive constitutes creating that is not the same as the original movie. The actual information contained in the frames of video is completely irrelevant as it is isolated from the optical media at that point. I should be able to patent/copyright DVD rips, then distribute them according to my license,
The judge's reasoning in the ruling hinges on the fact that the BRCA1/2 genes do not appear in nature as isolated, unmodified DNA and instead only appear in DNA form as part of a (much) larger chromosome. While technically true, it ignores an important fact of genomics: while the BRCA genes do not appear in vivo as isolated _DNA_, the do appear as isolated _RNA_. The RNA counterpart of the DNA sequence is slightly modified - it is the 'reverse-complement' of the DNA with the T's replaced with U's (for example, AACC - (reverse complement) -> GGTT - (sub U for T) -> GGUU.
So, in a very perverse way, the judge is correct. The isolated, unmodified DNA does not appear in nature.
There is natural mechanism for converting RNA back into DNA called reverse transcription (RT). RT-based methods are how we sequence genes. RNA from genes is isolated and converted back into DNA for sequencing. This is a standard lab method and used for all gene sequencing. (interestingly, if someone were to find RT at work in a cell converting BRCA genes back to DNA, the patent could be invalidated.)
The gene itself, in RNA form, appears isolated in nature. The RNA sequence cannot be patented. But, sequencing methods all rely on converting RNA back to DNA for sequencing. The sequence is read as DNA. But, that's not really the gene, that's just a modified representation of the gene. The functioning gene is the RNA version, not the DNA copy of it.
What's frustrating is that Myriad is using a technical aspect of how gene/RNA sequencing works to claim a patent on a gene itself.
-Chris
Since the courts are insane beyond recall there is only one option left. Congress needs to pass a law. Throw the creationists a bone to get them on board. Mandate the Patent Office to assume the design of every existing natural creature was patented by God with the issue date in 4000BC. And to stop the next step direct the Library of Congress to assume He filed a copyright on the full genome of every creature on the same date. Then direct them to assume any gene sequence derived from a naturally occurring creature is a derived work so that only the new material is eligible for a new copyright if it is different enough and separate enough from the original work.
Democrat delenda est
And I guess - no, I'm sure - nobody ever claimed you did.
Shame you can't patent the strawman argument, or being an idiot.
Confucius say, "Find worm in apple - bad. Find half a worm - worse."
By me: http://www.youtube.com/watch?v=4vK-M_e0JoY
"This video presents a simplified education model about socioeconomics and technological change. It discusses five interwoven economies (subsistence, gift, exchange, planned, and theft) and how the balance will shift with cultural changes and technological changes. It suggests that things like a basic income, better planning, improved subsistence, and an expanded gift economy can compensate in part for an exchange economy that is having problems. The text for the presentation is here: http://www.pdfernhout.net/media/FiveInterwovenEconomies.pdf "
I've been wondering if I should include attention and reputation in there too?
So, there are alternatives to the exchange economy. Also"
http://women.timesonline.co.uk/tol/life_and_style/women/article6928744.ece
"Former teacher Heidemarie Schwermer has lived without money in Germany for 13 years. Our writer finds out how she does it."
Think also about did people live before money existed?
http://www.eco-action.org/dt/affluent.html
But back then not all land was "privatized" and hoarded and rented for money... So people could hunt and gather.
Note also that "money", like fiat dollars, is essentially imaginary.
"The Mythology of Wealth"
http://www.conceptualguerilla.com/?q=node/402
A 21st century issue: the irony of technologies of abundance in the hands of those still thinking in terms of scarcity.