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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.
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
At least in the US, big pharmaceutical company profits are far more important than something as silly as the health of the general population.
Bill Posters is innocent!
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
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
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.
Patenting of genes in the EU is already allowed.
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.
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/
Just take the test elsewhere outside the US, make the cell collection in the US, send for analysis outside.
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! --
Ha! fooled you! I use light as a wave!
Try to catch me!
-- Tigger warning: This post may contain tiggers! --
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