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Supreme Court Throws Out Human Gene Patents

Posted by Soulskill on from the klingon-gene-patents-still-ok dept.

thomst sends this quote from an Associated Press report: "The Supreme Court on Monday threw out a lower court ruling allowing human genes to be patented, a topic of enormous interest to cancer researchers, patients and drug makers. The court overturned patents belonging to Myriad Genetics Inc. of Salt Lake City on two genes linked to increased risk of breast and ovarian cancer. The justices' decision sends the case back down to the federal appeals court in Washington that handles patent cases. The high court said it sent the case back for rehearing because of its decision in another case last week saying that the laws of nature are unpatentable. In that case, the court unanimously threw out patents on a Prometheus Laboratories, Inc., test that could help doctors set drug doses for autoimmune diseases like Crohn's disease."

4 of 91 comments (clear)

  1. Not exactly... by Theaetetus · · Score: 5, Informative

    "The Supreme Court on Monday threw out a lower court ruling allowing human genes to be patented, a topic of enormous interest to cancer researchers, patients and drug makers. The court overturned patents belonging to Myriad Genetics Inc. of Salt Lake City on two genes linked to increased risk of breast and ovarian cancer.

    Not quite. The Supreme Court overturned the Federal Circuit ruling that the patents were valid and infringed, and remanded back for reconsideration based on the recent Prometheus v. Mayo case. Basically saying, "take another look." They did not however "overturn patents" nor did they "throw out human gene patents" as the headline states.

    We can make predictions and argue about what the Federal Circuit will likely decide on remand, and what the Supreme Court might then do if re-appealed, but it's not nearly as over as the headline or summary say.

    1. Re:Not exactly... by pepty · · Score: 4, Informative

      But why should the gene be patented? The patent seeker in question didn't invent the gene, nor did he invent the way it expresses into proteins, nor did he invented the proteins synthesized. Someone discovered what role the gene plays in the metabolism, but that's a discovery, not an invention.

      That's not what the patents cover.

      They usually cover:

      1. Adding or removing genes from an organism to give the organism a useful new phenotype (corn that makes bt toxin).

      2. A process for manufacturing a protein that includes taking it out of the original organism and expressing it in a different one so that you get a higher yield.

      3. A diagnostic based on the presence of a particular version of a gene or protein (what this case was about)

      4. A new version of a protein that is more useful than the natural one.

      Some are still pretty obnoxious though.

    2. Re:Not exactly... by __aaltlg1547 · · Score: 3, Informative

      No, it's not a reason not to patent it. The reason is that the gene existed and did what it did before you discovered what it did. It doesn't matter that you just discovered the gene that makes me able to regulate the insulin in my blood. I've been using that gene for that purpose and so has almost everybody else. If you now use that new knowledge to make a drug that helps diabetics, good for you. You can patent THAT DRUG. But you shouldn't be able to patent the gene or the mechanisms by which it operates. Those are simply facts of nature. Those facts belong to nobody even though you discovered them.

      Now if somebody else figures out how to make the same thing happen with a different drug (that works better than yours or is easier to produce) THAT person should own the rights to their drug. I consider every drug to be non-obvious, because it's never obvious that a novel substance when introduced into the body will be safe and effective. Often all the indications are that a candidate drug will work, only it proves to have unsafe side effects or doesn't work because of some factor that the inventors couldn't know about without trying it in real patients.

      As for patenting genes in living organisms, it shouldn't be allowed unless all of the organisms are to be contained in a secure environment under your physical control. Once it escapes control, only the original maker should be held liable for its propagation and any economic damages that it caused.

  2. Patent links by CapitalR · · Score: 5, Informative

    Here's links to a few of the patents in question:
    http://patft.uspto.gov/netacgi/nph-Parser?Sect1=PTO1&Sect2=HITOFF&d=PALL&p=1&u=%2Fnetahtml%2FPTO%2Fsrchnum.htm&r=1&f=G&l=50&s1=5747282.PN.&OS=PN/5747282&RS=PN/5747282
    http://patft.uspto.gov/netacgi/nph-Parser?Sect1=PTO1&Sect2=HITOFF&d=PALL&p=1&u=%2Fnetahtml%2FPTO%2Fsrchnum.htm&r=1&f=G&l=50&s1=5837492.PN.&OS=PN/5837492&RS=PN/5837492
    http://patft.uspto.gov/netacgi/nph-Parser?Sect1=PTO1&Sect2=HITOFF&d=PALL&p=1&u=%2Fnetahtml%2FPTO%2Fsrchnum.htm&r=1&f=G&l=50&s1=5693473.PN.&OS=PN/5693473&RS=PN/5693473
    And here's the Federal Appeals Court case, which lists the rest of the patents:
    http://www.bloomberglaw.com/public/document/Assn_for_Molecular_Pathology_v_US_Patent__Trademark_Office_653_F3