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US Court Sides With Gene Patents
ananyo writes "Gene patents have been upheld in a landmark case over two genes associated with hereditary forms of breast and ovarian cancer. The lawsuit against Myriad Genetics, a diagnostic company based in Salt Lake City, Utah, that holds patents on the genes BRCA1 and BRCA2, has bounced from court to court since 2010. In a 2-1 decision today, a federal appeals court reaffirmed their latest decision that genes represent patent-eligible matter. As noted before on Slashdot, the case will have major implications for cancer researchers, patients and drug makers."
While Judge Koh suggests Apple is “smoking crack” in another case, I'm going to suggest that judges are smoking crack here.
What other natural phenomenon can I patent? The shape of a quartz crystal perhaps?
“Common sense is not so common.” — Voltaire
Along this course of "logic" - you will someday be paying royalties on genes that comprise your own personal traits.
"Flyin' in just a sweet place,
Never been known to fail..."
US Supreme Court precedent still holds that patents are invalid where they reiterate the 'laws of nature". This lower court ruling simply found, in another hearing of the case, that the two patents held by Myriad fail to meet the reiteration test. The lower court was directed to consider this rule as a guiding principle. They have done so. This does not preclude further appeal; however, given the very narrow nature of the ruling it is unlikely to have "major implications for cancer researchers, patients and drug makers."
Certainly, it contributes to the body of common law; however, I don't believe there is deep policy significance in this latest ruling. The beauty of law is its ambiguity.
Hopefully in the rest of the world, things will be more sane.
Gene Patents is one hell of a guy, I'd side with him too.
With these patents, does that mean that they own certain types of cancer?
If so, then they should take responsibility of their property and stop being irresponsible and infecting people with their property.
As remedy, I suggest that they fully pay for the treatment to remove their property from their victims and for the stress caused by their carelessness.
No sig. Move along - nothing to see here.
But according to the latest judges, the patents Myriad holds do not reiterate these laws. In the courtâ(TM)s decision, Judge Alan Lourie writes: âoeEach of the claimed molecules represents a nonnaturally occurring composition of matter."
Like hell they are. This judge needs to go back to HS biology.
--
BMO
Imagine, for the sake of argument that what follows is greentexting.
>go to tech related site like slashdot
>no support for UTF8
>2012
Oh the ironing.
--
BMO
At least in the US, big pharmaceutical company profits are far more important than something as silly as the health of the general population.
not sure if they promised a return/refund policy with their product.
Hooray! Now I can patent a gene that arose spontaneously in nature because I invented a detection kit based on standard published techniques I learned in grad school! Now if I could only patent an entire friggin' human chromosome... But which one, which one would be best...
For causing harm.
Since the owners are now causing cancer, it would seem that a lawsuit over the cleanup should be about 2 million per patient.
Any delays should cause triple damages.
Please, Please, Please, Please don't export this, like you do with most of your iditotic, broken laws. In this game, the very survival of the human race is at risk.
Here's a fuller explanation from the opinion (not that I agree with it). They appear to be making a distinction between isolated DNA, which is allegedly nonnaturally processed in a way that renders it patent-eligible, and "native DNA" as it exists inside the human body, which is a natural occurring composition of matter.
It is undisputed that Myriad’s claimed isolated DNAs exist in a distinctive chemical form—as distinctive chemical molecules—from DNAs in the human body, i.e., native DNA. Natural DNA exists in the body as one of forty-six large, contiguous DNA molecules. Each of those DNA molecules is condensed and intertwined with various proteins, including histones, to form a complex tertiary structure known as chromatin that makes up a larger structural complex, a chromosome. See supra, Figure 3. Inside living cells, the chromosomes are further encapsulated within a series of membranes and suspended in a complex intracellular milieu.
Isolated DNA, in contrast, is a free-standing portion of a larger, natural DNA molecule. Isolated DNA has been cleaved (i.e., had covalent bonds in its backbone chemically severed) or synthesized to consist of just a fraction of a naturally occurring DNA molecule. For example, the BRCA1 gene in its native state resides on chromosome 17, a DNA molecule of around eighty million nucleotides. Similarly, BRCA2 in its native state is located on chromosome 13, a DNA of approximately 114 million nucleotides. In contrast, isolated BRCA1 and BRCA2, with introns, each consists of just 80,000 or so nucleotides. And without introns, BRCA2 shrinks to approximately 10,200 nucleotides and BRCA1 to just around 5,500 nucleotides. Furthermore, claims 5 and 6 of the ’282 patent cover isolated DNAs, e.g., primers or probes, having as few as fifteen nucleotides of a BRCA sequence. Accordingly, BRCA1 and BRCA2 in their isolated states are different molecules from DNA that exists in the body; isolated DNA results from human intervention to cleave or synthesize a discrete portion of a native chromosomal DNA, imparting on that isolated DNA a distinctive chemical identity as compared to native DNA.
As the above description indicates, isolated DNA is not just purified DNA. Purification makes pure what was the same material, but was combined, or contaminated, with other materials. Although isolated DNA is removed from its native cellular and chromosomal environment, it has also been manipulated chemically so as to produce a molecule that is markedly different from that which exists in the body. Accordingly, this is not a situation, as in Parke-Davis & Co. v. H.K. Mulford Co., in which purification of adrenaline resulted in the identical molecule, albeit being “for every practical purpose a new thing commercially and therapeutically.” 189 F. 95, 103 (C.C.S.D.N.Y. 1911). Judge Learned Hand’s opinion for the district court in that oft-cited case held the purified “Adrenalin” to be patent-eligible subject matter. Id. The In re Marden cases are similarly inapposite, directed as they are to the patent ineligibility of purified natural elements—ductile uranium, 47 F.2d 957 (CCPA 1931), and vanadium, 47 F.2d 958 (CCPA 1931)—that are inherently ductile in purified form. While purified natural products thus may or may not qualify for patent under 101, the isolated DNAs of the present patents constitute an a fortiori situation, where they are not only purified; they are different from the natural products in “name, character, and use.” Chakrabarty, 447 U.S. at 309-10.11.
10 PRINT CHR$(205.5+RND(1)); : GOTO 10
Like the US are in the process of doing with software patents?
The plan is quite simple: Allow / Set up a new type of patent to be created, expanding the options for claiming. Give it a few years and start using political pressure to force the rest of the world to respect your new type of patents.
Results: You give your companies & economy a few years headstart and screw the rest of the world over. Works especially well with a ridiculous disregard for prior art and a system that makes getting a patent invalidated stupidly expensive...
Let's see, did they invent it? No, they discovered it. Too bad Christopher Columbus isn't around these days - he could have patented the Americas!
Not only is this a stupid decision - that my genes can be patented by a third party - but it's a decision which will allow the patent trolls to monopolise them and will result in many, many deaths worldwide. These judges should be ashamed of themselves on both levels.
Judge Alan Lourie writes: “Each of the claimed molecules represents a nonnaturally occurring composition of matter.. Oh bullshit. I've noticed when lawyers try and make decisions regarding science and technology - be it copyright or biosciences - more often than not they balls it up and the public is left to bear the cost of their arrogance. In this case research will be curtailed by other scientists not wanting to go anywhere near what may be patented technology, and members of the public will die. Talk about judicial arrogance.
It was Judges Lourie and Moore who fucked this up. Bryson dissented. With such a narrow decision I hope the victims can appeal.
http://www.aclu.org/files/assets/10-1406_0.pdf
The corporation that "owns" the two patents is American. The court that upheld the patents is American. Enough said.
So, they are claiming in a court of law that they invented breast cancer? Shouldn't they now be sued by everyone who has ever had breast cancer?
I used to work at Myriad Genetics on their lab software and believe me they don't give a single shit about anybody's health. They care about charging exorbitant amounts for testing and counseling. Remember, these tests do not definitely tell anybody they will get cancer. They are simply and statistical indicator.
What Myriad patented are not the genes themselves (EVERYBODY has them). What they patented are the pattern of specific mutations of the BRCA1 and BRCA2 genes. It is these specific mutations (nucleotide patterns) within the genes that MAY indicate the POSSIBILITY of cancer. You have to also consider the medical and family history of a specific patient and then make a guess as to what the probability of cancer will be in the future. It's never a yes or no answer.
To add insult to injury, the original research for finding the mutations of the BRCA1 and BRCA2 genes was done by the founders of Myriad at the University of Utah which is a state school. The public paid for the original research.
Not only is this a stupid decision - that my genes can be patented by a third party - but it's a decision which will allow the patent trolls to monopolise them and will result in many, many deaths worldwide. These judges should be ashamed of themselves on both levels.
Judge Alan Lourie writes: “Each of the claimed molecules represents a nonnaturally occurring composition of matter.. Oh bullshit. I've noticed when lawyers try and make decisions regarding science and technology - be it copyright or biosciences - more often than not they balls it up and the public is left to bear the cost of their arrogance. In this case research will be curtailed by other scientists not wanting to go anywhere near what may be patented technology, and members of the public will die. Talk about judicial arrogance.
It was Judges Lourie and Moore who fucked this up. Bryson dissented. With such a narrow decision I hope the victims can appeal.
http://www.aclu.org/files/assets/10-1406_0.pdf
Although it is easy to blame mass ignorance when pointing to those appointed to sit behind a bench (which could easily be the case here), did you ever stop and consider that the decision was made with full knowledge and understanding?
I'm not trying to purport wrongdoing in this case, but when you consider the hundreds of billions of dollars that Big Pharma (or other patent holders) stand to make with a decision like this, one cannot remove the possibility of wrongful influence. The benefit is far too one-sided to not consider it.
I hope the Supreme Court will overturn this and set precedent which
prevents human genes from being patented.
But given the current members of the court, I doubt that will happen.
Seems like the parents of someone who has the genes in question manufactured the patent in question and therefore their offspring would be prior art.
Get rid of the TMobile adds so I can read the story!!!!
But on the other side of things, it guarantees that America's biotechnology industry will stagnate and China's will boom. It's just a consequence of the Free Market, so that's ok right?
http://www.xkcd.com/354/
Sadly there was a time when I was surprised by these type things.. the last 5-10 years or so.. not so much.
Just take the test elsewhere outside the US, make the cell collection in the US, send for analysis outside.
Obviously the Higgs Boson is a non-naturally occuring subsection of a molecule which can only be detected with special equipment provided by CERN.
Pay CERN royalties for using their patented Higgs Boson or be subject to having them forcefully removed from your use.
FYI. Farmers are already being sued out of business for having plants that naturally obtained copywrited genes. Just search for monsanto.
For the love of all that's holy... First of all, it's copyRIGHT, not copyWRITE... as in the RIGHT to COPY. How friggin' hard is that? Secondly, Monsanto uses patents in their extortion schemes, not copyright... and really, if you even remotely understood the difference, you should be able to figure out which it was in about a tenth of a second.
Sigh... there's Lincoln quote which seems exceedingly appropriate right now.
I have hep C. And having it makes knowing the virus load levels within my system an important measure of how well my immune system is holding up over the years. However because the shape and form of the HC virus is patented and the software to assay the virus must use its patented outline to count the virus the drug company that holds the patent to the shape of the virus can extort any one that produces software to assay this virus.
The result is that the assay test for virus load is so expensive that only the rich that have hep c can afford to know how they are really doing fighting the virus. Even here in Canada doctors shy away from ordering the test because of cost.
The same bullshit is holding back advancement in all forms of medicine and the largely drug and medico funded republican anti social medicine bullshit is to blame for the lack of affordable health care in the US.
The rest of the world needs to strike down this bullshit in the UN once and for all.
Seriously, it's like saying we're slaves and the property of corporations.
Which still aren't people.
Canada and the EU plus ANZA ftw.
-- Tigger warning: This post may contain tiggers! --
I'm going to patent water!
Too late, I already patented Hydrogen and Oxygen.
You owe me royalties.
Oh, and stop breathing.
-- Tigger warning: This post may contain tiggers! --
...that I will get my genome sequenced in its entirety. Then patent each specific gene and gene combination.
Anyone testing to have even a fragment matching me, excepting relatives forward and backwards 2 degrees, will be henceforth subject to a cease and desist, then possible civil and criminal action for violating my IP.
Silence is a state of mime.
just add that anyone that tries to enforce their patent automatically invalidates said patent.
problem solved!
Anons need not reply. Questions end with a question mark.
Tsk, tsk, tsk, I just patented quarks, barions, leptons and bosons. I'll be only to happy to take that water money of your hands and OH! stop emitting photons! and keep off the grass... damn kids!
The mo$t pathetic country on Earth.
Just a question....
Given that the company seems to have patented a gene that causes Cancer, does that mean that Cancer patients who exhibit the gene have a legal remedy?
Could they, for instance, sue the company for the harm that the company's gene has caused them?
Just a question.
Ha! fooled you! I use light as a wave!
Try to catch me!
-- Tigger warning: This post may contain tiggers! --
F.U.B.A.R.
Why didn't anyone patent the business model of patent trolls? Seems pretty lucrative. If just one of them managed to pull it off, they could have sued all the other patent trolls.
“Common sense is not so common.” — Voltaire
Bill Stickers is innocent
I think this is going to SCOTUS. Patenting genes is just SO WRONG!
did you ever stop and consider that the decision was made with full knowledge and understanding?
Considering the judge has lots of ties to organizations that exist only for the purpose of expanding the reach of "intellectual property".... I think you're spot on.
To get them to do these things for you?!
I think that as The importance of The US marken declines (it will follow the same trend for medicine that it has for cars), lawmakers will finally see that the US patent and legal systems are very detrimental for business. Companies will avoid having R&D in the US because of the massive legal overhead costs. If I can develop software/medicine/tech in Europe or Asia, and sell it there, thereby avoiding massive patent problems and legal processes then this will be a more and more attractive option. I don't know what it will take for the US to reform its patent system, but it is necessary. Likewise, as long as companies can haves portfolio of software patents that they use as leverage and threat, something is very very wrong. Imagine a country where a tech company with 100 employees create a piec of software and sell it, without ONE of these employees being a lawyer. Sounds odd? Then you are an American!
Genes are what makes people, people. When you have patents on genes, you effectively have patents on people, meaning you own them. This is slavery. Clearly a line has been crossed here, and not a good one. Patenting naturally occurring systems is wrong. Its like if I patented the sun or how to breathe air, and then turn around and make people pay me money for breathing air in a certain way (or any way). Its sick, twisted, stupid, and shouldn't be allowed. Oh wait, this is the USA we are talking about.
Can we sue them now for that deadly invention that is the #1 source of cancer mutations in women killing tens of thousands per year?
So if one happens to have this gene via natural mutation, would he have to get a license to live from them ?
Here's an analogy:
Some rare earths (and lots of other elements) do not exist in their pure form in nature - they are only found in chemical compounds. If I invent a refining process to extract these elements in pure form, I can patent that process. Fair enough.
However, this judge has said that DNA fragments have been manipulated chemically, and can therefore be patented because this new form does not exist in nature. So, by his logic, I can patent not only my refining process, but the actual chemical element that results from it.
This guy needs to go back and take some basic science classes. Alternatively, one needs to have a hard look at his (very close) ties to the IP industry.
Enjoy life! This is not a dress rehearsal.
Government enforcing monopolies isn't a free market.
This posting is provided 'AS IS' without warranty of any kind, implied or otherwise.
I feel now that I would never participate willingly in any genetic study,
This posting is provided 'AS IS' without warranty of any kind, implied or otherwise.
Ignorance is no excuse for breaking the law. But try and represent yourself in court, and you will be told point blank you are incapable of understanding the law.
I only look human.
My mother is a halfling and my dad is an ogre, so that makes me an Ogreling
Does this mean that I can sue the patent owners if I contract a form of cancer that is patented? After all, I will have been contaminated by their property.
Now there will be an incentive to research, money.... But not a lot of people will be able to afford the treatment because of money... I say their patents expire after several years.
1. Your doctor sequences a bunch of cancer cells, finds out which therapies they are resistant and responsive to. Exciting!
2. If your doctor is a lot more diligent, he realizes that your cancer is really a population of quickly mutating cells rapidly undergoing evolution to evade the therapies he pumps into you. If you're lucky, chemotherapy is faster than evolution. If you're unlucky ...
3. Asshole "oncologists" and other doctors like Burzynski sequence your cancer cells, tell you they've come up with a custom therapy based on your unique profile, then sell you the same urine they give every other patient and charge you $250k for the privilege.
garbage in, garbage out.
Shouldn't legislative branch be deciding whether genes are patentable? Maybe nature discoveries shouldn't be patentable? This is almost like patenting a breed of sheep.