Will the Supreme Court End Human Gene Patents?

An anonymous reader writes "Monday, the Supreme Court will hear a case on the validity of breast cancer gene patents. The court has a chance to end human gene patents after three decades. From the article: 'Since the 1980s, patent lawyers have been claiming pieces of humanity's genetic code. The United States Patent and Trademark Office has granted thousands of gene patents. The Federal Circuit, the court that hears all patent appeals, has consistently ruled such patents are legal. But the judicial winds have been shifting. The Supreme Court has never ruled on the legality of gene patents. And recently, the Supreme Court has grown increasingly skeptical of the Federal Circuit's patent-friendly jurisprudence. Meanwhile, a growing number of researchers, health care providers, and public interest groups have raised concerns about the harms of gene patents. The American Civil Liberties Union estimates that more than 40 percent of genes are now patented. Those patents have created "patent thickets" that make it difficult for scientists to do genetic research and commercialize their results. Monopolies on genetic testing have raised prices and reduced patient options.'"

Comments

The government doing something right?

[UltraZelda64]

Come on... seriously now...

No.

Re:The government doing something right?

[hsmith]

God forbid Congress and the President do something about it. No, lets hope the Supreme Court, nine old people, figure it out.

Patenting genes, which aren't fucking inventions - is purely insane.

I don't know the answer.

[Impy the Impiuos Imp]

Is figuring out what constitutes a gene for something really the Herculean effort (deserving of patent protection) it used to be?

Or is it more like the Oklahoma Land Grab at this point?

Re:I don't know the answer.

[Daniel Dvorkin]

Is figuring out what constitutes a gene for something really the Herculean effort (deserving of patent protection) it used to be?

As AC pointed out, "Herculean effort" is not necessarily deserving of patent protection. That being said, yes, figuring out what constitutes "the gene for X" (which for the vast majority of diseases is actually more like "the N genes and assorted epigenetic modifications for X," where N is some fairly large number) is still in most cases a task which would challenge even a demigod. Since those of us working in the fields aren't demigods, we have to rely on a whole lot of skull sweat and processor cycles. It still doesn't mean we should get to patent what we discover through this process, for the simple reason that they are discoveries rather than inventions.

The purpose of a gene is a discovery

[PerformanceDude]

I never understood how they could allow this to happen in the first place. Clearly finding out the purpose of a gene will always be a discovery and not an invention. Discoveries are not patentable.

They shouldn't.

[VortexCortex]

I think we should be able to patent similar sized sections of machine code as well.

This shit will never get better until it gets SO BAD that not even the rich greedy monopolies can make money. THEN we can fix the situation and end all patents (and copyrights too).

Life is copying. You are trillions of copies of a single cell. We owe the entire advancement of the Human race to our ability to freely share ideas -- It's the only thing we have over the damn dirty apes, and we're squandering it for greed...

Natural vs artificial

[Taco Cowboy]

I believe that, if the "human gene" occurs naturally, that is, already existed before being discovered, they should not be patentable --- something akin to "prior art"

But on the other hand, if the "human gene" is has a new sequence, result of some artificial manipulation in some lab, and has special characteristics, then I think it would be unfair to prohibit those who have invested their time and effort in creating something that has never existed before in patenting the new genetic sequence(s)

Re:Natural vs artificial

[UltraZelda64]

And what happens that that gene is later found to exist somewhere in nature?

What about those "artificial" genes made in labs that make their way into organisms through 100% natural methods? Should some biotechnology company "own" all of our rice just because some farmer decided to use their seeds, and their crops then crossed with, thereby contaminating all nearby farmers' rice crops?

And it takes a virus or bacterium to transfer the gene into a plant... should humans really receive the patent for doing something that a lowly microorganism does itself?

Patenting living things is just a bad idea. Period.

Re:Natural vs artificial

[BrokenHalo]

It isn't about being fair. It is about what produces the best result for society as a whole.

No it's not. It's about appeasing the lobby group with the biggest legal fund. So even if the Supreme Court did happen to strike down gene patents (which I believe unlikely), there's no reason why those interest groups wouldn't just lobby Congress to get the law changed in their favour. I would guess they would have a high likelihood of success there, given that all politicians are corrupt.

Re:Natural vs artificial

[icebike]

Worse yet, (and bringing the discussion back home to humans), could a human be charged a license fee for reproducing (having children) simply because they paid for a medical treatment that involved gene therapy which becomes part of their DNA?

Its time to end this silliness before it becomes a pervasive a cell phone patents and software patents. If doing so turns off all research into genetic medicine so be it. (It won't, but that's what the drug companies will claim, and its long past time to call their bluff). Someone else will step up and provide it on more agreeable terms.

Re:Natural vs artificial

[jelizondo]

Please, take a moment to think.

Shall we grant ownership of asteroids, planets and other celestial objects to the astronomer who discovers them?

If not, why should other natural objects be treated differently?

If you are talking about patentig a sequencing method or a method to change a natural gene, then, by all means, grant a patent. Otherwise, forget it.

And then we have to deal with unintended consequences... What if the changed gene has deadly side-effects?

The corporations want the government to assure them their profits, but they don't want to take the risk.

Maybe we should not grant genetic patents at all?

Re:Natural vs artificial

[Samantha Wright]

You may find it comforting to know that, so far, GM crops have had no direct effect on human health. (Unlike, say, drugged livestock.) Plants don't use often use hormones that are compatible with the human body, so the likelihood of health problems occurring is somewhat diminished. One notable exception is the fig, which produces a chemical similar to estrogen.

Also, a lot of people don't understand that genes only spread when they're evolutionary beneficial to the organism receiving them. Usually, the benefit is either metabolic (the ability to digest a new nutrient) or defensive (the ability to survive pesticides or natural poisons.) The worst thing that can happen to crops is that they become easier to farm. To date, the biggest legal case involving the spread of genes was a case where a farmer was re-selling herbicide-resistant seeds patented by Monsanto; pollen from a neighbouring field had spread over to his. But it's not like this affects you, the grocery-buyer—if Monsanto had contract terms saying they can sue their customers' customers, no one would do business with them!

Most of the paranoia regarding the genetic manipulation of crops is the product of a culture accustomed to paranoid science fiction. There are plenty of cases where business practices are doing serious harm to human health—factory farming, for example, is responsible for several serious diseases, some of them incurable—but GM crops really aren't an issue. We simply don't know enough to create a real mess yet.

Re:Natural vs artificial

[Genda]

Actually what Mosanto has done is wiped out hundreds of small farms by predatory lawsuits which serves large agrobusiness (their primary customers) just fine. So big players are using GM to push small farms out of existence.

The test

[swillden]

IMO, all of the comments and discussion about whether genes are inventions or discoveries or natural or artificial are completely irrelevant.

The purpose of the patent system is to advance the useful arts and sciences. Given that there is obviously a lot of scientific (and commercial) value in identifying the functions of particular parts of our genetic code, that's something we want to encourage. Patents are supposed to do this by encouraging research results to be published so that other researchers can use them for inspiration and as building blocks. If that's not happening, then patents aren't providing any value.

So, a very simple test: If researchers routinely use the patent database as a source of inspiration and a place to find tools to solve specific problems, and are very willing to look for and license patents that help them make progress, then they're good and useful. If, however, patents are an obstruction, if researchers actively avoid looking at patents to avoid possible treble damages from willful infringement, or if they block useful avenues of research, then they're not providing any value and should be discarded.

The question of whether something is invented or discovered is just semantics with no real impact on whether or not it's useful or whether or not patent protection will accelerate or slow progress in the field.

Re:This will get struck down

[chromaexcursion]

Good point, but very different constitutional foundations.
The same reason the court ruled in favor of Citizens United is why they rule against gene patents.

On a more favorable front. The SEC is likely to require all publicly traded corps to publish their political activities.
Most companies fear public backlash more than their non-favored candidate in office.