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Supreme Court: No Patents For Natural DNA Sequences
ColdWetDog writes "The ongoing story of Myriad Genetics versus the rest of the world has come to an end. In a 9-0 decision, the US Supreme Court has decided that human genes cannot be patented.
From a brief Bloomberg article: 'Writing for the court, Justice Clarence Thomas said isolated DNA is a "product of nature and not patent eligible merely because it has been isolated." At the same time, Thomas said synthetic molecules known as complementary DNA, or cDNA, can be patented because they require a significant amount of human manipulation to create.' Seems perfectly sane. Raw genes, the ones you find in nature are, wait for it — natural. Other bits of manipulated DNA / RNA / protein which take skill and time to create are potentially patentable. Oddly, Myriad Genetics stock actually rose on that information."
Adds reader the eric conspiracy: "The result for Myriad is that they still have protection for their test, however the decision also allows researchers to work with the DNA sequences that are predecessors to the cDNA used in the test." Here's an AP report on the ruling, as carried by the Washington Post.
The court case is over and the result wasn't actually all that bad. Sure Myriad and their stock holders would much rather have complete patent rights to the whole thing, but they kept the protections on their actual asset and the court case is now final and decided. Hell even if they'd lost completely their stock probably would have gone up because at least the risk was gone.
Oddly, Myriad Genetics stock actually rose on that information.
That's not really surprising. All that means is that the market expected the news to be worse than it actually was. Once the ruling was handed down and the uncertainty removed, the stock rebounds based on the new information. You'll see this all the time where a company has a terrible quarter and their stock price goes up because while it was indeed terrible, it wasn't as terrible as expected.
A breath of IP sanity from SCOTUS? And unanimously at that?
Indeed.
Even the good recent decisions are uncomfortably often a 5-4 split (meaning that we could be one retirement away from flipping them). That thought disturbs me...
Have we sequenced every variant of every species?
Case in point, Monsato make GM crops that resist herbicides. What if the parts they are patenting, have analouges in some other plant in the wild?
Silence is a state of mime.
Right. The process for making a cDNA copy of a particular sequence is probably patentable. But I'm betting Myriad didn't invent that process. Whoever did should be able to patent it, and Myriad should have to pay them royalties for applying the process to the BRCA gene. And maybe something as general as cDNA construction should be a FRAND-type patent, so that it's owner can't 'own' all DNA by owning the standard testing methodology. Just like Motorola isn't allowed to own the cellphone industry by virtue of having come up with the standard communications protocol used by cellphones.
Posted from my Android phone. Oh, I can change this? There, that's better...
"the US Supreme Court has decided that human genes cannot be patented."
Does it means animals and plants DNA can be patented?
"Human genes cannot be patented" is an overly broad interpretation of the ruling.
To say that these "isolated segments of naturally occurring human genes cannot be patented" would be more correct.
In the case where an inventor creates nonnaturally occurring gene sequence with markedly different characteristics from anything occurring in nature, it is left open whether or not those are patentable.
Plant genes meeting these criteria have been held to be patentable. See Monsanto, for example. It is possible that animal genes, or even human genes that meet this criteria would be patentable.
Is anything actually achieved by oral arguments? It seems mainly an opportunity for lawyers to get flustered, choose the wrong tack while thinking on their feet, be manipulated by the justices, and oversimplify.
These days, oral arguments tend to be a place for the justices to prod attorneys with particular questions. Often, it seems they do this with the intention of bringing up a point that might influence or accentuate an idea that could sway one of the other justices, rather than necessarily to clarify a question for themselves -- though, if they are really curious about a particular issue themselves, you can tell. They will keep cutting through the BS spouted by the attorney and hammer the same question until they get an answer. Maybe this is to prove a point to the other justices, but it can also be to assure themselves that they've gotten all possible perspectives on the question. Another common tactic in oral arguments is for the justices to pose interesting hypotheticals that they think may clarify the case, but which may not have been adequately addressed in briefs.
Is Thomas' silence really a comment on the fact that this is a waste of his, and everybody else's, time?
Actually, he's explicitly said why he doesn't talk. Oral arguments tend to be a lot of banter among the justices these days, but they used to let lawyers at least speak a little more. Thomas has said that he thinks his colleagues should give a little more room for attorneys to try to make points and bring up what they think is important.
I think he'd like to hear a little more and perhaps then ask questions relevant to the lawyers' points. But in the current court, we rarely ever get to hear a lawyer talk for more than 30 seconds on his/her own material before being interrupted. Thomas thinks this makes oral arguments more about the justices' preoccupations rather than what the lawyers think is important.
I can see his point. The justices get to debate each other and their clerks for hours on end about their preoccupations. Oral argument could be a place to get a few insights into the major concerns of the litigants, if we could ever hear them talk.
On the other hand, the justices will be the ones who ultimately decide things, so maybe it's best if they stick to the stuff that actually concerns them. It's just unfortunate when they start using lawyers as legal "punching bags," clearly only to drive home a point to one of the other justices.
When a researcher makes cDNA from mRNA, is the result only "not found in nature" if the original genomic DNA had introns.
So as a result should all prokaryote-derived cDNA be unpatentable? Perhaps only certain cDNA from humans are patentable (from genes with introns)?
Yes, this is correct. Justice Thomas writes (at page 17 of the slip opinion): "As a result, cDNA is not a “product of nature” and is patent eligible under 101, except insofar as very short series of DNA may have no intervening introns to remove when creating cDNA. In that situation, a short strand of cDNA may be indistinguishable from natural DNA."