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Judge Finds Major DNA Patent Invalid
cswiii writes "In what some Slashdot readers might consider a breath of fresh air, a judge in San Francisco ruled that a patent on DNA replication and analysis was questionably obtained and thus, invalid. An appeal has already been promised by the defendants. " Whew. There's some form of sanity left in the world I guess. Reversing the Taq DNA Polyemerase patent is a pretty major deal for genetic research - it makes PCR much easier to perform.
They abbreviated it at PRC in the article too which is wierd. I would have expected a source like this to have gotten a simple abbreviation like this correct.
Slightly more on topic now...
It wasn't mentioned in the article, but Taq polymerase is a naturally occuring enzyme, which I would not expect to be patentable. However, many biotech companies have introduced modified Taq enzymes (eg that are less error prone, more efficient, etc) which I would expect to be patentable. The article does not mention if they were attempting to patent the naturally occuring or a modified form of the enzyme.
Mike
The new "mix" you refer to was the discovery of Taq DNA polymerase. DNA polymerase is found in every living cell, and it serves to synthesize DNA from individual nucleotides (A,T,C,G). Hence, it is essential to PCR, which is basically just the repeated copying/synthesis of a DNA fragment.
The original DNA polymerase used in PCR was not thermostable, meaning that it couldn't withstand high temperatures. Each PCR cycle requires a high-temperature step to separate the DNA strands, hence, early PCRs required the addition of new polymerase during each cycle. This was labor intensive and impractical.
Taq DNA polymerase is extracted from thermus aquaticus, a bacteria originally found in thermal vents in Yellowstone. Because this bacteria lived in such incredibly hot conditions, its DNA polymerase was thermostable. Taq polymerase is still used today in the vast majority of the world's PCR reactions.
Sooooo...the patent that you refer to was indeed the really evil insidious stupid kind of patent that we all despise--the patenting of discovered genes. I say good riddance to this patent. May the USPTO realize the error of its ways...
Let's try not to let fact interfere with our speculation here, OK?
While this patent is quite probably illegitimate because of the method it was obtained, it is also quite clearly NOT a patent of genetic material, i.e. it is not a DNA patent as per the article headline.
Regardless of what you think about the legitimacy of patenting of genetic codes, this has to do with processes and other technologies used to analyze and fabricate DNA, and nothing to do with the actual makeup of the codes.
In addition the article makes the error of claiming that this will make DNA research easier. Quite incorrect. Patent laws ALREADY exempt research activities from any patent infringement claims.
For some basic information on patent laws, this page is useful.
well, i think this case was related to the first use of taq polymerase in PCR, performed by kerry mullis (sp?). since then, many advances have been made in this procedures, and the corresponding new polymerases probably have gone through the patent process as well. one of the advances is not man-made but another bacterial enzymes (like taq, not from normal bacteria, but from archaebacteria) that have the ability to check back over the code and look for mistakes. since these enzymes are also from bacteria, they probably cannot be patented either.
Men use thought only to justify their wrong doings, and speech only to conceal their thoughts. -- Voltaire
I love this phrasing! It applies to almost all software patents in existance today.
Too bad the `falsely claiming advances' argument would have to be used to invalidate each software patent one-by-one, instead of en-masse, as they deserve to be.
It seems like the recent comments on patents are mostly made by selfish individuals who don't understand the financial consequences behind research. Hopefully I can set the record straight.
/.ers to have all software released for free. Why should a company spend time and money developing software only to give it away for free?
Companies, whether large or small, simply cannot afford to fund research without at least some assurance that profit will be made. This typically comes by selling products/services based on ideas that come from that research. However, the company has spent large sums of money generating these new products and services, and needs to protect its investment to keep competitors from stealing their research. This is why companies patent ideas found in their research.
It's selfish and downright rediculous to expect companies to simply donate their research to the public domain. This removes all incentive for the corporation to conduct the research. This is akin to the desire often expressed by
The fact is, patents are a necessary evil. It gives business a reason to pursue research, since it is clear that universities and other government funded institutions (like the military and especially NASA) don't have enough money to do it themselves. Patents ensure that technology moves on.
(Note that this doesn't mean that I support the idea of patenting genes. I think that the idea of having corporations own the very makeup of all human beings proposterous. Unfortunately, I do not have an answer to the obvious question that arises: without the possibility of patens, how do you encourage companies to conduct research?)
In a nutshell, the process allows a small piece of DNA which was cut out of the genome to be amplified (replicated) repeatedly a few million times. This allows genetecists to examine the piece of DNA on a large scale, therby eliminating a lot of expensive equipment. By staggering the enzymes which are cutting the piece out, the genetic code can be read out directly for a lot of bases at once.
While I believe that patenting of DNA sequences is something we have to come to grips with (and hopefully outlaw), this patent definitely does not fall into that category. If anything, this is a really really elegant hack which allows DNA to be examined by making lots of copies quickly and cheaply. This makes it possible for anyone to do the research. Essentially they are trying to open up the sequencing by coming up with an ingenius technique.
I also really take offense to people who cheer or boo this decision without taking a look at content and only look at the subject heading! Read something carefully before spouting off an opinion and maybe you'll actually make sense.
It's funny because it's true -- Homer J.
While this is great there decision wasn't one of "prior art" as much as it was:
U.S. District Judge Vaughn Walker on Tuesday upheld a challenge by
Promega Corp., which argued that scientists got the important patent in
1990 by misrepresenting their experiments and falsely claiming advances
over previous discoveries.
So it sounds to me like it was more for scientific technical reasons. It also sounds like there is another company that could come forward and gets patents like this one. What do you guys think? Same interpretation?
If it is the way I think it is, there really hasn't been any breakthrough...
The "idiotic" rate at which biotech companies are applying for patents is hardly such; these companies are just defending their interests as best they can
I wasn't referring to legitimate biotech inventions (like medicines, engineered bacteria or non-obvious chemical processes) -- those are certainly worth the same as any other invention, and have a lot of expensive research behind them. That's why I said I'm at least relieved that this patent was a PROCESS.
I was referring to the dubious and genric genome patents (that you talked about as well), and (in general) the patenting of naturally occuring substances. It just seems ridiculous to claim them as original works...
Recursive: Adj. See Recursive.
I'd just like to comment on what I think is ignorance about geneomics. You have an idea for an invention, you spend tonnes of time an money developing it and you make something, and sell it to make a profit so that you can pay back all your staff so they can buy food and healthcare and all those wonderful things. It would really be unfair for anyone else to step in the middle, copy you work and claim it as theirs and make a profit when you did all the development, that's why a patent makes sense. You spend a tonne of mony researching a particular nucleic acid sequence, beg for funding from rich people and eventulay you have something that you can make some money off of because you've proven it to be safe and beneficial, and you patent your invention (yes it is an invention, even with natural sequences it requires a lot of work in order to determine what they do, you should really have patent rights if you discover the function/purpose of things so complex). Someone could copy your sequence with a pen and paper and claim it as theirs when you've given your sweat and blood finding it; it makes sense to patent such things becuase like all things, they cost time effort and money, those investments have to be so people can make a living just like any other product.
You can see the actual ruling on this case at http://www.promega.com/taqlegal/991207/991207order .pdf in pdf format. What apparently happened was that some journal articles were published in 1976 and 1980 which characterized the enzyme Thermophile AQuaticus (TAQ) polymerase, which is at the heart of PCR. Apparently, the folks at Cetus found a "different" polymerase, or at least they thought so. It turns out that the "difference" was experimental error, and that TAQ polymerase was already known and characterized in the open literature, THUS, its application to DNA amplification was covered, or "anticipated". Then, according to the finding, Promega called Hoffmann-La Roche on this fact, and H-LR decided to ignore it. And it turns out, once again according to the finding, that the scientists involved give the appearance of trying to cover up this fact to save their a$$e$. (Now, that's a pretty strong claim!) It is clearly a reversal based on prior art, not some technicality, which is good news. Although, I do offer my condolences to Hoffmann-La Roche; a lot of hurtin' going on there. So, what you need to repeat this victory in the computer arena are copies of all the old DECUS material, and every other early computing group material, especially from Xerox, and then get Ralph Nader to do a class action suit against virtually all bogus "hi-tech" companies, listing every internet user as a plaintiff. Heck, all the CPM and apple groups probably had some sort of one-click apple networked transaction using hypercard going in the 80s. All you need is something that differs by only the protocol, and you've won (provided someone takes it to court). Now, I noticed that Hoffmann-La Roche might be in for some penalties in this case. I wonder if anyone knows what kind of penalties can be imposed? Can you really collect from a bunch of IPO's that are losing money? But allow me to expound (and expand) and get more to the point; the people who invented TAQ polymerase found a naturally occuring product and then found a use for it. Naturally occuring products don't come with any rules, so, this sort of invention really is an 'art' because it is 'artificially' imposed upon nature to accomplish some desired, but not neccesarily useful, thing. This is not the case with software combinations. The creators of un*x went to a lot of trouble so that commands could pipe into one another and be used in endless combinations. This same approach of interoperability was applied to TCP/IP and eventually to HTML. So, the inventors, by design, granted us the ability to connect all the commands on a system to one another. Thus, any combination of programs which are doing what their creators envisioned, and which are strung together with pipes and tees or shared memory is already covered by the inventions which went into the OS. To say that one specific set of commands should be pulled away from the public because some company thought of it first is ludicrous. It's like patenting a new end-game for chess. It's like patenting the use of a 1-4-5 chord progression to produce a "hip" attitude in a music recipient. (Am I preaching to the choir yet? :) There is no problem with getting copyrights to this stuff, it's done all the time. However, when you play within the rules set up by someone else, you can't patent your style of play. Can Michael Jordan patent a basketball move? No, he's playing by someone elses rules. But take image compression, as a counter example. If I develop a way to digitize a picture and then represent it with only 1/10000th of the original numbers representing digitized points, I have a) done something new and useful b) done something which doesn't require a computer. That's right!; long before computers, people were digitizing things and performing manual calculations on them, albeit small calculations. So, a patent should be granted in this because there were no rules and I created something by my art. Now, take your one-click shopping again. Linking databases via the internet all takes place within the rules set up by the originators of operating systems and internet protocols. What would this look like if the computers were eliminated. Well, it could be construed as someone looking through a catalog with one-phonecall shopping which links inventory and account legers and has automatic follow up phone calls to a shipping department and the customer. So, DONCHA SEE? This is nothing more than a mail order system with some book keeping, which has literally been around since cuneiform writing was developed by the ancient Sumerians. So, my $.03 is that if you can eliminate the computers and you still have a novel process which doesn't play by the rules, then you have a bona fide invention!
The process of the PCR (that's the right abbreviation) is a very patentable process. It's a mix of using bacterial enzymes (which was what the patent was about) and putting it into a thermocycler (it simply raises and drops the temperature over and over) with the segment of DNA and primers and an hour later you have billions of copies of sequence you're interested in.
The idea of putting it all together is rather simple when you thing about it, but it's still a stroke of genius. That patent still holds if I remember well (but no money went to the inventor though). At the begininng, you had to put a new enzyme mix at each cycle because the heat would destroy it. If I understand it well, the patent in question was about another mix that can survive the temperature, so you put it once and forget about it. So THAT patent was more of using something that already exist in nature (and not a new process).
Processes like that are and should be patentable because they are still brilliant inventions with a human mechanical side and they're the ones that helps the science go advance so fast these days.
Claim 1: a system whereby hilarity and/or despair is brought to a large group of people through the broadcast of the details of granted patents.
Claim 2: a system as in Claim 1 whereby the details are provided in the form of a Uniform Resource Locator identifying the patent on an Internet accessible patent repository such as the IBM patent site.
Claim 3: a system as in Claim 1 and/or Claim 2 whereby the method of broadcast is an article on a popular portal site such as Slashdot.
Claim 4: a system as in Claims 1-3 whereby the patent applicants are obviously massively taking the piss.
US5443036: Method of exercising a cat
--
Xenu loves you!
And just becasue Promega has a patent on Taq polymerase, it doesn't mean you can't make your own. My lab has a freezer full of Taq that we made. It's pretty simple - clone the gene, express it in E. Coli, purify the proteins, heat-kill the unwanted proteins, and viola - hundreds of thousands of dollars worth of Taq. As far as I know, as long as we don't try to sell it, this is perfectly legal.
I'm fairly sure that this is incorrect, unless your lab or institution has a unique licensing agreement with Roche. Every unit of Taq comes with a limited license to use it for PCR in an "authorized thermocycler". Some companies (i.e. Visible Genetics) have been granted broader licenses for PCR. Perhaps your lab has this type of agreement? Or perhpas your lab has just been sticking it to The Man (Right on!). In either case, the patent has been invalidated so no harm, no foul.
One step closer to hacking the genome at home!
i'm pretty sure kerry mullis did get some money from this...plus he won the nobel prize in chemistry for this discovery. i believe this is the actual patent that they are discussing (he worked with this company when he discovered it).
Men use thought only to justify their wrong doings, and speech only to conceal their thoughts. -- Voltaire
unfortunately, the patent was ruled against only because of impropriety in the application/description (representing that it was more significant a change than it was from previous knowledge).
The ruling I'd like very much to see is that genetic patents aren't enforcable/legitimate at all, due to the fact that they are merely discoveries.
Of course, this patent dealt with a specific PROCESS, not a true genetic patent, so I can at least understand why that could/should be protected.
Hopefully this will at least slow down the idiotic rate at which biotech patents are being applied for, as it tells the companies that sloppiness or misrepresentation in the application will invalidate the discovery. Since most of the genetic patents are being done through brute-force methods and applied for as fast as they can type the pages, this may inject a modicum of restraint...
Recursive: Adj. See Recursive.
I was hoping it would say that patents on DNA were illegal. But it didn't. It said these particular scientists used deception to try and patent something which they didn't invent.
:-)
In fact, this is evidence of a disaster.
The patent office obviously didn't do enough work to determine whether the proposed patent was credible--they just rubber stamped it, and left it for the courts to work out. Since the courts are incredibly expensive, that puts a challenge to a patent like this out of reach to the average person. It took a corporate adversary with a legal team to defeat it.
Not something that you and me and your favorite free software development team will benefit from. Well... maybe now that VA and Red Hat are worth a gazillion dollars we can finally get some of those lawyers fighting for the right team
God pays me $500 for every brain He passes out.
Which should tell you something since I haven't made a dime in years......
--- Grow a pair, liberals... stop letting the Republicans bully you!
just a technicality, but i'm sure you meant, PCR, polymerase chain reaction, and not PRC.
Men use thought only to justify their wrong doings, and speech only to conceal their thoughts. -- Voltaire
I've seen a few people mention this, so I thought I'd clear it up.
The person who invented PCR is Kary Mullis. He's written a book, _Dancing Naked in the Mind Field_, in which he talks about a whole bunch of stuff, mostly related to science. Interestingly, he writes about how the people he worked for at the time when he invented it (Cetus) took the rights for the reaction away from him and compensated him with significantly less that he thought he deserved (and probably did deserve).
He also writes about hallucinogenic (sp?) drugs, poisonous spiders, current trends in pseudoscience, and a whole array of intersting topics. I'd reccomend this book to anyone who's ever read about science or had any thoughs on the subject. Yes, that means you. It's a great "mind opener."
it's cnn's fault, they messed it up in the story.
Men use thought only to justify their wrong doings, and speech only to conceal their thoughts. -- Voltaire