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Breast Cancer Gene Lawsuit Argues Patents Invalid

Soulskill posted more than 5 years ago | from the time-to-reconsider-my-patent-on-feet dept.

Medicine 294

bkuhn writes "The ACLU and the Public Patent Foundation have filed a lawsuit charging that patents on two human genes associated with breast and ovarian cancer are unconstitutional and invalid. The lawsuit (PDF) was filed on behalf of four scientific organizations representing more than 150,000 geneticists, pathologists, and laboratory professionals, as well as individual researchers, breast cancer and women's health groups, and individual women. Individuals with certain mutations along these two genes, known as BRCA1 and BRCA2, are at a significantly higher risk for developing hereditary breast and ovarian cancers."

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I don't understand it. (4, Insightful)

FlyingSquidStudios (1031284) | more than 5 years ago | (#27936685)

Can someone explain to me why it's legal to patent genes in the first place? I thought patents were supposed to be for new and unique inventions.

Re:I don't understand it. (4, Informative)

Duradin (1261418) | more than 5 years ago | (#27936749)

Monsanto would be the one to ask about that.

Re:I don't understand it. (5, Insightful)

drinkypoo (153816) | more than 5 years ago | (#27936959)

I don't remember electing Monsanto. Perhaps we should be asking our elected officials why Monsanto is permitted to continue to exist after their numerous offenses against not just the citizens of the USA, but actually humanity. Even Wikipedia seems to have forgotten the contaminated agent orange thing :P

Re:I don't understand it. (5, Insightful)

Organic Brain Damage (863655) | more than 5 years ago | (#27937135)

"Your" elected official? Did you give "your" elected official more money than Monstanto gave "your" elected official? I didn't think so. So she is not really "your" elected official. Is she? Of course not.

Re:I don't understand it. (2, Insightful)

DrOct (883426) | more than 5 years ago | (#27937589)

Did "you" vote agaisnt that elected official? Did "you" work to campaign against that person? Did "you" campaign for another candidate? Did "you" do anything other than complain about Monsanto giving money to elected officials? If not, then yes they are "your" elected official.

Re:I don't understand it. (4, Insightful)

nomadic (141991) | more than 5 years ago | (#27937163)

I don't remember electing Monsanto. Perhaps we should be asking our elected officials why Monsanto is permitted to continue to exist after their numerous offenses against not just the citizens of the USA, but actually humanity. Even Wikipedia seems to have forgotten the contaminated agent orange thing :P

Because the elected official then turns around, quotes the Bible, and promises to lower your taxes, and you vote for him or her.

Anyone willing to limit corporate power is typically not elected, and not because Monsanto gave them money but because of tax-cut and deregulation fanaticism.

Re:I don't understand it. (5, Insightful)

osgeek (239988) | more than 5 years ago | (#27937461)

Or your elected official promises to tax the rich and give you free health care, and you vote for him or her... then turns around and behaves in exactly the same corrupt way that you expected "the other team" to behave.

Despite that identical outcome, you'll pat yourself on the back that you elected the team that says the right things with Olberman cheerleading you the whole way - while Sean Hannity and his players are gnashing their teeth and decrying the corruption that was okay when it was their guys.

Montasano gets rich, the Politicians get rich, freedoms and quality of life issues suffer... but at least you get to hate those other guys.

We are so fucked.

Re:I don't understand it. (2, Interesting)

maxume (22995) | more than 5 years ago | (#27937883)

Except farmers fucking looooove Roundup Ready crops.

I don't mean all of them or anything, I just mean the vast, vast majority of them. By the time they have fertilizer, time and fuel put into the land, licensing the seeds and spraying the herbicide are details.

Re:I don't understand it. (4, Interesting)

click2005 (921437) | more than 5 years ago | (#27936757)

IANAwhatever but I thought what was patented was the way these genes are found/isolated. Any drug/treatment that affects these genes will use that method.

Re:I don't understand it. (4, Interesting)

starfire-1 (159960) | more than 5 years ago | (#27937023)

I have a sneaking suspicion that you are right - this isn't about the gene itself, but how to isolate/observe, etc. That process could very well be an invention and it certainly cost R&D money to the original developer.

I guess the question comes down to whether patent protection for health related concerns should be exempted as some (not myself) consider health care a right (I consider it a need and responsibility to procure, but not a right that I expect others to provide for me.)

The plaintiffs are clearly attempting to use this case to overturn all health related patents (in the article) and in my opinion pull health related research from the private sector to the public sector. This would bolster the advocates of national health care and create another (unwritten) constitutional right.

Re:I don't understand it. (3, Insightful)

DrOct (883426) | more than 5 years ago | (#27937639)

You know, I agree that there are probably some "rights" that aren't in the constitution, and that perhaps we don't have the "right" to, but the 9th amendment was put into the constitution for a reason:

"The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."

Just because it's not specifically mentioned in the constitution doesn't mean we can't determine that we do in fact have a given right, and the founders certainly understood this, or they wouldn't have bothered to add that amendment.

Nope (0)

Anonymous Coward | more than 5 years ago | (#27937645)

Gene identification and observation methods have been around since the late 1960s or early 1970s. Almost everywhere else in the world genes and the like are not patentable nor are the standard academic observation systems. Genes are identified not invented. Only in the US can you get a patent on somebody else's work which is often in the public domain for years - known as prior art I'd suggest.

Re:I don't understand it. (3, Informative)

Scrameustache (459504) | more than 5 years ago | (#27937705)

I have a sneaking suspicion that you are right - this isn't about the gene itself, but how to isolate/observe, etc. That process could very well be an invention

Everything I read says the patent is on the gene.
http://www.wipo.int/wipo_magazine/en/2006/04/article_0003.html [wipo.int]

"Myriad holds U.S. patents 5747282 and 5710001 on the isolated DNA coding for a BRCA-1 polypeptide and on a screening method."

Ah, AND on a screening method. Patents on human genes (isolated DNA coding) make me confused; wary.

Re:I don't understand it. (5, Informative)

RawJoe (712281) | more than 5 years ago | (#27937241)

One of the patents cited was 5,747,282.

Claim 1 states:

1. An isolated DNA coding for a BRCA1 polypeptide, said polypeptide having the amino acid sequence set forth in SEQ ID NO:2

I'm not any genetic engineer, but it seems they are receiving a patent on the specific DNA coding. So did they "discover" the code or is this code used to locate BRCA1? Seems pretty broad.

Re:I don't understand it. (4, Insightful)

ByOhTek (1181381) | more than 5 years ago | (#27936761)

It depends. If it is a gene you yourself designed, then it is a reasonable target for a patent (or, more likely, copyright). However, if it's a gene that occurs in nature, then it makes no more sense to patent that gene than a species of plant or animal, a rock you found walking into work in the morning, an ocean or a star (stellar, not media - actually, maybe both would make sense, thought the latter isn't natural).

Re:I don't understand it. (1)

someone1234 (830754) | more than 5 years ago | (#27936863)

What if it is a gene normally not found in nature, but due to Monsato's irresponsibility, it 'infected' plants and now it is 'in the wild'?

Re:I don't understand it. (2, Funny)

corsec67 (627446) | more than 5 years ago | (#27936911)

Monsanto sues God?

Re:I don't understand it. (2, Funny)

Anonymous Coward | more than 5 years ago | (#27937169)

God countersues - what a patent portfolio. Oh, wait, are there any lawyers in heaven?

Re:I don't understand it. (1, Funny)

Anonymous Coward | more than 5 years ago | (#27937617)

No, there aren't any lawyers in heaven. However, he requested a trial by a jury of his peers, and I really don't see the Son or the Holy Spirit ruling against him.

Re:I don't understand it. (1)

maxume (22995) | more than 5 years ago | (#27937907)

There are no lawyers in a court of thunder and lightning.

Re:I don't understand it. (0)

Anonymous Coward | more than 5 years ago | (#27937551)

Bet on Monsanto.

Re:I don't understand it. (0)

Anonymous Coward | more than 5 years ago | (#27937613)

They you'd be an idiot if you sprayed your seed corn with RoundUp.

Re:I don't understand it. (3, Insightful)

fastest fascist (1086001) | more than 5 years ago | (#27936881)

It depends. If it is a gene you yourself designed, then it is a reasonable target for a patent (or, more likely, copyright)

Combine that idea with artificial, hereditary traits (designer kids etc.), and you have people who need permission from their friendly gene provider to reproduce. Bring on the GIAA lawsuits! Can't have people passing on copyrighted genetic material without authorization!

Re:I don't understand it. (0)

Anonymous Coward | more than 5 years ago | (#27936913)

Hahahhaahaha.. Like a Designer kid would have the ability to reproduce...

Re:I don't understand it. (1)

cduffy (652) | more than 5 years ago | (#27937007)

Hahahhaahaha.. Like a Designer kid would have the ability to reproduce...

Who doesn't want grandchildren?

(Now, requiring some external stimulus -- say, a hormone injection -- before being able to reproduce... that would be a nice enhancement!)

Re:I don't understand it. (2, Interesting)

osgeek (239988) | more than 5 years ago | (#27937619)

That should really be the default for everyone in all societies. Maybe set up a licensing system. I think it was Steve Martin in Parenthood who said something like: You have to get a license to fish, drive a car, or fly a plane - but any moron can become a parent.

Re:I don't understand it. (0, Offtopic)

KevinKnSC (744603) | more than 5 years ago | (#27937295)

Around here, I was surprised to see an "I" in that acronym.

Could you patent pop? (2, Interesting)

Altreus (1492723) | more than 5 years ago | (#27937217)

This actually leads me to consider whether a record company or similar could file a patent on a pop group they artificially injected into mainstream, and what the concequences of that would be.

Or indeed to file a patent on the concept of a "manufactured" pop group. Would other record companies be prepared to admit that they have effectively created groups from nothing in order to claim prior art and stop the patent in the first place?

Re:I don't understand it. (5, Informative)

HomelessInLaJolla (1026842) | more than 5 years ago | (#27936841)

These patents do not cover only the gene sequence. These patents often are related to the methods by which the gene sequence was identified within the particular culture of cells from which it was taken. The patent may also cover the methods by which those cells were cultured or the methods by which those cells were derived from other cell lines. The patents also may cover the methods by which this particular sequence may be used to identify other tissues containing cells which, by matching this sequence, will match the cell line from which the sequence is derived--thereby solidifying the position of the inventors if a diagnostic test were to ever be developed. For example, in a question of a patient population with multiple cancers, or with multiple different forms of the cancer in question (breast cancer), are those patients viable candidates for treatment with a pharmaceutical which was developed specifically to target the cancer which is characterized by the DNA sequence given in this particular patent? We wouldn't want to develop a pharmaceutical to treat cancers characterized by sequence ABC and then give that pharmaceutical to patients with a similar cancer displaying sequence CBD.

These are all very logical reasons why these patents exist. If you know how the industry works, though, none of them really hold any water in true practice. Patents are nothing but resume boosters for scientists and the patents rarely, if ever, actually monetarily benefit any of the named inventors except for the lead investigator(s). If you are socially and financially well-connected to begin with then your patent may help you. If not then the patent is the legal paperwork by which the company or group you worked for can use to cut you out of all profits. In most companies a large number of patents will translate into a significant salary increase or a promotion for the lead investigators but translates into little more than a token fee (usually around a dollar, or a single option of stock, or something similar) in exchange for which the employee signs away all rights to claim ownership of their own work.

Re:I don't understand it. (1)

Asic Eng (193332) | more than 5 years ago | (#27938023)

My boss likes to pressure me to patent "something". I always get out of it. If I patent something which is actually good, then I can not use my idea anywhere else. My job experience is part of my capital, I have no intention of signing that away.

Re:I don't understand it. (1)

sohmc (595388) | more than 5 years ago | (#27936859)

I'm confused by this as well. Although, who ever thought of this is probably hoping to get rich. By my reading, the genes were discovered, not created. Not sure how you can patent a discovery though. It sets a bad precedent.

Re:I don't understand it. (1)

Steauengeglase (512315) | more than 5 years ago | (#27936869)

Screw that, I'm jumping on the gravy train and patenting bunnies.

Re:I don't understand it. (1)

Hangeron (314487) | more than 5 years ago | (#27936957)

It is legal because companies want to make money with them. Welcome to the insanity of the monetary system.

Re:I don't understand it. (0)

Anonymous Coward | more than 5 years ago | (#27937183)

Often patents on naturally occurring genes are patents on specific uses of that gene in the development of a research technique or a medicine.

Re:I don't understand it. (5, Interesting)

giminy (94188) | more than 5 years ago | (#27937199)

Can someone explain to me why it's legal to patent genes in the first place? I thought patents were supposed to be for new and unique inventions.

You don't patent the gene, you patent the process of identifying and using knowledge about the gene.

The reason that it's legal to 'patent genes' is that is very, very, very (did I mention very?) expensive to discover which gene(s) control an aspect of a plant or animal. My girlfriend is a molecular scientist, so I get to hear about her research woes all of the time. Without some protection of a genetic discovery, it makes no financial sense for a company to actually do the research and discover which genes control an aspect of a plant or animal's composition. A discovery takes at least 5-6 years of research from several researchers, associated support staff, and requires some fairly expensive equipment.

There seems to be a lot of people calling Myriad a big, evil, genetic patent holding corporation. All that I can say is, look at their financials. They spend hundreds of millions of dollars per year doing genetic research, and they make very little money in return for their investment. When I last examined their financials (beginning of 2008 I think), they had been operating at a loss since they went public. They are advancing human knowledge quite a bit, and they will probably go out of business for it within a few years. I posted their financials to slashdot some time ago (feel free to look up their tax forms, they're a publicly traded company). In 2007, they reported a huge operating loss and came out and said in their disclosure that they are in business because of continued shareholder investment.

I, for one, see genetic patents as a necessary evil. If someone or some company is going to take the time and money to make a genetic discovery, they ought to be given some time to try and profit from that discovery. Genetic sequencing is not a quick nor an easy task -- there's a lot more to it than just throwing some genes in the PCR machine and pushing the 'sequence' button. For what it's worth, my girlfriend is also a likely candidate of the BRCA1 gene, as every female in her family that has been tested for it, has it. She is still okay with genetic patents. And no, we're not cold, heartless capitalists...we shop at the co-op, have a garden, brew our own beer, make our own biodiesel, and do all the things that good hippies should do...it's just that without Myriad, *no one* would know that having the BRCA1 gene was a precursor to breast cancer.

Reid

Re:I don't understand it. (4, Insightful)

Duradin (1261418) | more than 5 years ago | (#27937413)

And this is where someone should point out that this would be an excellent reason to support government funded general scientific research.

It's expensive, offers little return on investment monetarily but could greatly benefit the populace.

Corps aren't shelling out the cash like they used to on research that wasn't going profit the shareholders within a couple of years.

Re:I don't understand it. (0)

Anonymous Coward | more than 5 years ago | (#27937487)

Well stated, and an excellent example of why we need to put this kind of research back into the public domain where it belongs. I argue that what you say here:

it's just that without Myriad, *no one* would know that having the BRCA1 gene was a precursor to breast cancer.

is simply wrong. If our system worked in a reasonable way, where this type of basic research was performed by universities and the like rather than corporations, then we would gain this knowledge and it would be possible for everyone to benefit from it at the same time. Instead, corporations gain this knowledge and only the wealthy benefit from it.

Re:I don't understand it. (5, Funny)

osgeek (239988) | more than 5 years ago | (#27937703)

Dude, don't come to Slashdot and make some logical argument about the good side of gene patenting and how this might be a complex issue where the knee-jerk reaction of "patents are bad!" might not apply.

Before your little intellectual escapade, everyone was having a nice circle jerk criticizing the evils of human greed to try to make a buck based upon little knowledge and much angst.

Your kind of informed opinion isn't appreciated here!

Re:I don't understand it. (4, Insightful)

Daniel Dvorkin (106857) | more than 5 years ago | (#27937737)

Without some protection of a genetic discovery, it makes no financial sense for a company to actually do the research and discover which genes control an aspect of a plant or animal's composition.

Which is why most such research is done in university labs, not corporate. There has been for decades a perfectly good method of advancing scientific knowledge and turning it into usable technology: academic researchers, paid primarily with public funds, do the basic science, and that fraction of it which turns out to be commercializable gets taken up by corporate engineers. This balance started to fall apart with Bayh-Dole and Diamond v. Chakrabarty, and things have been getting worse ever since.

Re:I don't understand it. (1)

foniksonik (573572) | more than 5 years ago | (#27937797)

The problem with this argument is that it is very short-sighted. Yes with current technology it is expensive to find/isolate/etc genes. It was even more expensive to do so 10 years ago. It was impossible to do so 20 years ago. However in another 20 years it could be cheap and not because of the work that these researchers are doing but because completely unrelated technology (better tools) will allow researchers to do the same work in 1/100th the time.

The economic incentive for a company to pursue this type of research is to be a leader in the field and therefore to have the experience and level of trust associated with that experience to continue to be a leader in the field. They don't need patent protection or other legal monopolies on this type of research. There are already enough barriers to entry into this field of development to make it hard for a newcomer to catch up simply by having free access to the methods.

An obligatory car analogy:

I as an amateur car enthusiast can get my hands on a repair manual for any vehicle in the world. I can even purchase specialty tools or make my own for those cars which require them. Having this knowledge and equipment does not make me competitive with existing auto shops which specialize in a particular vehicle or even with a generic repair shop. They have a vast amount of experience in the details of repair that I do not have. They can do the job faster, cheaper, more efficiently and can offer a warranty on said repairs due to the fact that they are an ongoing business. Patenting the method and process of repair or even the method to diagnose a repair problem is not necessary for a repair shop or a manufacturer to maintain their competitive advantage. It would on the other hand limit a consumer's ability to find a repair shop that was affordable (if it was a patented method) and thereby discourage the consumer from buying any vehicle which is so encumbered.

The only protection that is warranted in this scenario is a Trademark on a seal of approval for those companies which would be performing a method. A Trademark can be loaded with a recognized level of competency and trust so that a consumer (individual or business) knows that the company which displays it on their product or service is following a recognized best practice aka "Authorized Service Provider" or similar designation. A Trademark can be protected easily without limiting the ability of competing providers to offer a similar service or even to establish their own "Trademarked" best practice seal of approval.

Re:I don't understand it. (1)

MozeeToby (1163751) | more than 5 years ago | (#27937931)

The reason that it's legal to 'patent genes' is that is very, very, very (did I mention very?) expensive to discover which gene(s) control an aspect of a plant or animal.

Right now that is true enough, but what happens in 20 years when the price to do the same research is 1/1000th of what it is now? Look at the cost to sequence the human genome today versus ten years ago for example. I wish laws had an expiration date, that would force them to be re-reviewed every 5 or 10 years, but as things stand now companies will still be able to patent genes when it costs pennies to the dollar what it costs now to discover them.

Re:I don't understand it. (1)

kingcobra0128 (1131641) | more than 5 years ago | (#27937523)

Because people are greedy and this is a way to make extra money even if it causes the death of many women D:

By all means, let them patent genes (1)

g2devi (898503) | more than 5 years ago | (#27937819)

> Can someone explain to me why it's legal to patent genes in the first place?
> I thought patents were supposed to be for new and unique inventions.

Agreed. That's why I'd let them patent the gene to breast cancer. If they invented breast cancer, then they're accepting responsible for it.

I'll leave it to the lawyers in the Slashdot crowd to follow this to it's logical conclusion.

Re:I don't understand it. (1)

infalliable (1239578) | more than 5 years ago | (#27937867)

Congress thought it was a good idea.

The Singularity has arrived (-1, Offtopic)

Sybert42 (1309493) | more than 5 years ago | (#27936697)

My Karma goes negative! There won't be patents after the Singularity.

A sad day (1, Insightful)

Anonymous Coward | more than 5 years ago | (#27936701)

when parts of the human body can be copyrighted. It won't surprise me if, sometime in the future, when giving birth to a child you must pay royalties to patent trolls, or else your baby will be seized and destroyed for violating patents.

Re:A sad day (4, Funny)

bothemeson (1416261) | more than 5 years ago | (#27936737)

Surely if you patent the trolls parts instead then you've got them by their own petards :-)

Re:A sad day (1)

RiotingPacifist (1228016) | more than 5 years ago | (#27936843)

I'll have already patented patented trolling by then, so they'll owe me royalties every time they even try!

Re:A sad day (3, Insightful)

Rary (566291) | more than 5 years ago | (#27936923)

A sad day ... when parts of the human body can be copyrighted.

They can't. Neither can they be patented (which, by the way, is completely different than copyright).

What can be patented (but not copyrighted) is the process of performing diagnostic tests on a certain gene. To quote the article:

"Myriad's patents give it exclusive right to perform diagnostic tests on the genes -- forcing other researchers to request permission from the company before they can take a look at BRCA1 and BRCA2, the ACLU said. The patents also give the company the rights to future mutations on the BRCA2 gene and the power to exclude others from providing genetic testing."

This is not a good thing, but it does seem to fit within the scope of patents. This is more reason for patent reform.

Re:A sad day (2, Insightful)

toppavak (943659) | more than 5 years ago | (#27937049)

I haven't looked at the patent itself but it sounds like its either a method patent that describes performing a diagnosis based on analyzing those genes or its a composition patent for PCR probes- the DNA templates used to amplify certain DNA sequences for detection purposes. Either way, patents like these really get in the way of getting effective diagnostic technologies to the people that need them. Bulk synthetic DNA is dirt cheap, but commercial probes are damned expensive since these companies have monopolies over the right to produce or use them as a diagnostic test. I don't understand pricing strategy when it comes to healthcare tech, the traditional rule-of-thumb approach of "charge as much as people are willing to pay" breaks down completely since people are willing to pay pretty much anything to keep on living... I think fundamental changes in the way healthcare is approached as a business will be necessary before we start seeing anything resembling universal global access to basic care.

Don't look at that or I'll sue you! (0)

Anonymous Coward | more than 5 years ago | (#27937087)

I'd imagine pretty much everyone who's ever discovered a means of diagnosing any health problem is kicking themselves, right now.

As for me, I'm off to go write up a paper on a new disease, but not before I patent the process to validate it's existence!

Re:A sad day (1)

swillden (191260) | more than 5 years ago | (#27937105)

What can be patented (but not copyrighted) is the process of performing diagnostic tests on a certain gene. To quote the article:

"Myriad's patents give it exclusive right to perform diagnostic tests on the genes -- forcing other researchers to request permission from the company before they can take a look at BRCA1 and BRCA2, the ACLU said. The patents also give the company the rights to future mutations on the BRCA2 gene and the power to exclude others from providing genetic testing."

This is not a good thing, but it does seem to fit within the scope of patents.

Seems overly broad to me. I have no problem with a patent on a specific process of examining a certain gene, but allowing a patent on *any* process of looking for a particular gene seems to go too far.

Re:A sad day (0)

Anonymous Coward | more than 5 years ago | (#27937195)

So if someone can find a different method to test the gene, they're free to do so? Or is this like software patents where you patent the end result rather than the process?

Re:A sad day (3, Interesting)

PPH (736903) | more than 5 years ago | (#27937253)

What can be patented (but not copyrighted) is the process of performing diagnostic tests on a certain gene.

Their particular diagnostic test or any diagnostic test?
The former I can understand. The latter is yet another example of why we need patent reform. There is plenty of prior art in testing genes for the purpose of performing diagnoses. Once a broad claim has been made in another patent, or recognized in current practice, a narrower claim included in that should not qualify for a patent.

Re:A sad day (1)

russotto (537200) | more than 5 years ago | (#27937765)

What can be patented (but not copyrighted) is the process of performing diagnostic tests on a certain gene. To quote the article:

"Myriad's patents give it exclusive right to perform diagnostic tests on the genes -- forcing other researchers to request permission from the company before they can take a look at BRCA1 and BRCA2, the ACLU said. The patents also give the company the rights to future mutations on the BRCA2 gene and the power to exclude others from providing genetic testing."

This is not a good thing, but it does seem to fit within the scope of patents. This is more reason for patent reform.

That only fits into the legitimate scope of patents if the tests themselves were patentable subject matter. If the only thing unique about "performing diagnostic tests on BRCA1" is the specific gene, then this is the biochemical equivalent of a software patent, where non-patentable subject matter is magically made patentable by adding "performed on a device consisting of a CPU, input device, output device, operating system, and memory store".

Pics? (-1, Troll)

Anonymous Coward | more than 5 years ago | (#27936745)

Does anybody have any breast cancer pics?

Sounds hot.

New Business Model (4, Funny)

arthurpaliden (939626) | more than 5 years ago | (#27936807)

Patent a gene and then sue anyone who has it. Even better would be to copyright it and then get $700 per copy in the body.

Re:New Business Model (1)

fraggleyid (134125) | more than 5 years ago | (#27936933)

I was considering patenting my own genome and then suing my offspring the moment they sprogged. Unfortunately I don't have prior art on my own genetics.

Re:New Business Model (1)

maxume (22995) | more than 5 years ago | (#27937949)

They would probably be able to claim an implied license.

Well, unless you are a deep sleeper with rather crazy associates.

Re:New Business Model (2, Funny)

javilon (99157) | more than 5 years ago | (#27937055)

Patent a gene and then sue anyone who has it. Even better would be to copyright it and then get $700 per copy in the body.

Also, you could ban human reproduction as it involves unauthorized copying of copyrighted genes.

Re:New Business Model (4, Informative)

TheRealMindChild (743925) | more than 5 years ago | (#27937181)

You poke fun, but this happens with genetically modified corn

Re:New Business Model (2)

gerglion (1264634) | more than 5 years ago | (#27937747)

What is worse is that this happens unintentionally with genetically modified corn. How do you stop your corn fields from catching pollen from your neighbors' fields? "Mother Nature is infringing, not me."

Re:New Business Model (1)

arthurpaliden (939626) | more than 5 years ago | (#27937521)

I wonder if they would would pile all the unauthorized copies in a parking lot, call the press and then crush them with a steam roller as an anti-piracy photo op?

It's still in the gene databases (2, Informative)

pzs (857406) | more than 5 years ago | (#27936937)

Can anybody explain what patenting the genes actually means? The articles aren't too clear. They're still in the public databases: BRCA1 [ensembl.org] and BRCA2 [ensembl.org] . This includes the sequence, SNPs, transcript information and all the other goodies. In fact, the Ensembl home page [ensembl.org] still lists BRCA2 as an example for its search box...

I can understand they might patent technology they have developed that is associated with those genes, which seems fair. But if all this information is still available, they haven't really patented the gene itself.

Re:It's still in the gene databases (2, Informative)

maxwell demon (590494) | more than 5 years ago | (#27937125)

Patents don't mean the information is not available. Indeed, the whole point of patents is to make the information available, in exchange to a limited-time monopoly on its use.

For example, if someone holds a patent on a time machine, then you don't violate the patent by describing, in arbitrary detail, how the time machine works. You do violate the patent by building it yourself (provided you don't have a license to do so).

Re:It's still in the gene databases (1)

pzs (857406) | more than 5 years ago | (#27937239)

But in this case, aren't human beings violating the patent every time they reproduce, since this involves a new creation of a BRCA2 and BRCA3 gene? In fact, I guess every occurrence of mitosis is also a violation of the patent.

Re:It's still in the gene databases (1)

sFurbo (1361249) | more than 5 years ago | (#27937763)

No, the gene itself is not patented, using the gene in diagnosing illnesses is. Or something related to that...

Re:It's still in the gene databases (0)

Anonymous Coward | more than 5 years ago | (#27937601)

But what if you build the time machine after the patent expires and travel back in time to the present day? I think my head is going to explode.

Re:It's still in the gene databases (1)

Mindcontrolled (1388007) | more than 5 years ago | (#27938015)

But what if you build the time machine after the patent expires and travel back in time to the present day? I think my head is going to explode.

Now this would, by extension, be covered by Art. 5ter [wipo.int] of the Paris Agreement. The article basically states that if you are living in country A, where some thing is not patented, and use the thing on a ship, vehicle or airplane, your ship, vehicle or airplane is allowed to operate temporarily in country B, where the thing is patented, without violating the patent.

It should be possible to build a case arguing the same exception for time machines. (Disclaimer: IANYL. This is not legal advice. No Laws of Physics in general and Laws of Thermodynamics or Relativity in particular were violated while writing this post. Seriously.)

Re:It's still in the gene databases (3, Informative)

Binty (1411197) | more than 5 years ago | (#27937533)

A bunch of folks have said in this discussion that patenting the gene doesn't patent the gene itself, but only the method of finding it, the method of using it, and other methods having to do with the gene.

It is true that methods for doing all those things are patentable subject matter, but an inventor can also get a patent on the gene itself if the inventor is the first to purify that gene from its surrounding environment. The landmark case for this proposition (that chemicals found in nature are patentable in their isolated and purified form) is called Parke-Davis v. H.K. Mulford 189 F. 95 (S.D.N.Y. 1911). I tried to find a link to the case online, but couldn't find anything for free. The case concerns purified adrenaline, which before the invention at issue could only be used in conjunction with the rest of the junk in whatever gland produces adrenaline. The court held that purified adrenaline was different enough from the adrenaline found in nature that the substance itself could be patented. This is the basis for gene patents and also pharmaceutical patents (most of the drugs you take can be found in nature, just not in purified form).

Re:It's still in the gene databases (3, Informative)

Calsar (1166209) | more than 5 years ago | (#27937557)

IANAL and IANAG (I am not a geneticist). However my wife works for Genbank (http://www.ncbi.nlm.nih.gov/Genbank/). She is a geneticist and we've discussed this issue. When a company patents a gene they have the rights to information and usage of that gene. This essentially halts research on the gene, because anything you discover is owned by the company with the patent unless you work out some type of licensing agreement. This is bad for medical research because a company won't study a disease if the gene is owned by another company. Any cure or medication they came up would not be usable without licensing. Considering the high cost of medical research, it's just not worth it do research unless you own the patent. Companies are in the process of patenting every gene they can find in hopes that one of them will be important for instance the genes described in this article that relate to breast cancer.

Crazy world (1)

Masa (74401) | more than 5 years ago | (#27936955)

When I was reading the article, it was like I was reading this novel: http://en.wikipedia.org/wiki/Next_(novel) [wikipedia.org]

And here I thought that the Crichton book was just some random over-the-top science fiction. It's sometimes scary, when SciFi turns into reality.

Michael Crichton would be pleased (4, Interesting)

Supp0rtLinux (594509) | more than 5 years ago | (#27936977)

Michael Crichton just popped up in his casket and gave these guys a huge HIGH 5

Michael Crichton's Gene Patenting Rant [crichton-official.com]

Re:Michael Crichton would be pleased (1)

luag (959452) | more than 5 years ago | (#27937021)

I am in the middle of reading Next actually, and news like this give me goosebumps.

Re:Michael Crichton would be pleased (0)

Anonymous Coward | more than 5 years ago | (#27937371)

Agreed, I read Next and it really made you think about what can and should be owned.

Re:Michael Crichton would be pleased (1)

RingDev (879105) | more than 5 years ago | (#27937527)

I find it a bit ironic that a publicly posted essay on the evils of patents is footnoted by an explicit definition of copy rights and an additional copy right notice.

For someone who was so outspoken on opposing intellectual property, it intrigues me that his estate manager is exerting his intellectual property rights after his death.

-Rick

Hmmm (1)

Fjodor42 (181415) | more than 5 years ago | (#27936993)

If I'm carrying a patented gene, should I pay royalties, or should I get the patent invalidated on grounds of prior art?

I don't care... (1)

_14k4 (5085) | more than 5 years ago | (#27936995)

I just want my wife's breast cancer _gone_... it's been 3 years now, post diagnosis.

Re:I don't care... (0)

Anonymous Coward | more than 5 years ago | (#27937973)

I don't care...

Then you should. This madness is slowing and inhibiting research.

Prior Art (1)

spyingwind (961097) | more than 5 years ago | (#27937039)

I think Nature has prior art...

Unconstitutional? (0)

Anonymous Coward | more than 5 years ago | (#27937065)

What's extremely interesting here is that the ACLU is taking the approach that the idea of patenting something that existed already is unconstitutional. What happens then when CERN tries to patent any invention stemming from the LHC, or to the already existing patents on interferon or the artificial lung? These things existed in nature long before they were patented, but the patentors (not sure if that's a word, but I'm using it anyway) either discovered them or made them work where others had failed (except nature, of course).

This type of Lawsuit is doomed to fail, which begs the question - why is the ACLU really doing this? I know they're a hell of a lot smarter than I am, so they should know this lawsuit will likely not succeed. So why file it? Why not just encourage the office to reverse the patent? Or grant some kind of conditional "academic" licensing?

Re:Unconstitutional? (1)

residieu (577863) | more than 5 years ago | (#27937313)

There were Large Hadron Colliders and artificial lungs existing in nature? Where?

Patent limitations (2, Insightful)

Hodar (105577) | more than 5 years ago | (#27937071)

You can't patent ice, snow or slush - why? Because these are naturally occuring items. You cannot patent a mathematical function (1+1=2), an obvious extension of a patent (make an iPod entirely chrome plated), naturally occuring item (wood), or something that has been in the public domain.

No one invented the genes in our bodies, so how can anyone own a patent on them? If I patent the gene that turns Breast Cancer 'off' - then can I sue men and women who possess that gene without my permission? If someone has breast cancer, and it goes into remission - can I chose to 'gather my property' by imprisoning that person and extacting the gene that I own rights too?

Crighton's book, "Next" was an excellent novel based on this entire theory. No one should have the 'rights' to any gene.

Re:Patent limitations (1)

sFurbo (1361249) | more than 5 years ago | (#27937783)

As has been said many times, the gene itself is not patented, using it to diagnose diseases is.

Why can someone patent something nature created? (3, Insightful)

olddotter (638430) | more than 5 years ago | (#27937101)

I don't think you should be able to patent discoveries, only inventions. Can a law scholar speak as to how we got to this point?

Where is Larry Lessig?
 

Re:Why can someone patent something nature created (1)

Theaetetus (590071) | more than 5 years ago | (#27937997)

I don't think you should be able to patent discoveries, only inventions. Can a law scholar speak as to how we got to this point?

Sure... We got to this point by only reading the misleading Slashdot summaries rather than the actual patent, and thus believe that it's a patent on something nature created.

Can not be patented. period. (1)

unity100 (970058) | more than 5 years ago | (#27937161)

it goes BEYOND definition of 'prior art'. that gene was there even before mankind was able to draw pictures on cave walls, leave aside any notion of a 'patent'.

this incident shows how insanely stupid u.s. patent system and accompanying greed has gone. we are one step away from someone trying to patent homo sapiens sapiens. such patent applications should not only be rejected, but also heavily fined for trying to abuse the system.

Re:Can not be patented. period. (1)

sFurbo (1361249) | more than 5 years ago | (#27937741)

So, we used this gene to diagnose cancer before we were able to draw pictures on cave walls? Man, that is some advanced cave men. "Hey Urh, watch where you put that mammut down, you almost squashed the gene sequencer".

Or perhaps you think "patenting a human gene" means actually patenting having the gene? Man, that would just be stupid. But not much beyond the mental capabilities of patent trolls.

Copyright infringement (0)

Anonymous Coward | more than 5 years ago | (#27937201)

So is someone passes on this gene is it copyright infringement?

I actually RTFA (2, Informative)

Anonymous Coward | more than 5 years ago | (#27937245)

I know, I know. We don't do that here. But it's a shame because it actually does help in this case.

Basically, a company found that if a gene exists, the patient has increased risk of cancer. And so they made a test to determine if that gene exists. And then they patented their invention, because they want to be the ones to profit from their work.

Other than "cancer" being important in the story, it's like any other patent case. A company made a unique discovery that they want to profit from. Other people don't like that a patent restricts them.

Same old story.

Stupid argument (1)

DustyShadow (691635) | more than 5 years ago | (#27937257)

The First Amendment argument that this patent limits the "free flow of information" is stupid and will be dismissed immediately. The whole point of patents is to grant a time limited monopoly on the use of that "information." If you have to use such a lame argument, you know at the beginning that you are going to lose.

Re:Stupid argument (1)

DragonTHC (208439) | more than 5 years ago | (#27937375)

agreed their argument is flawed, but the concept of the the suit is valid.

If the court upholds this patent, then we should hold them responsible for the effects of their patented genes.

eg. sue them for their patented genes causing cancer.

Procedures (3, Insightful)

Thaelon (250687) | more than 5 years ago | (#27937417)

It's almost certainly a patent of the procedure for isolating/identifying/testing with the genes.

This is why procedures shouldn't be patentable.

By definition, they're not inventions, but procedures.

Re:Procedures (2, Insightful)

RawJoe (712281) | more than 5 years ago | (#27937777)

I'm not so sure. One of the contested patents, claim 1 is:

An isolated DNA coding for a BRCA1 polypeptide...

No mention of a procedure, a method, a process, or a device used for, which is what many procedure patents have in their language.

Capitlism. (1)

Quantum Sort (1549723) | more than 5 years ago | (#27937425)

"The company also charged $3,000 a test, possibly keeping some women from seeking preventive genetic testing, the ACLU says."

Only in America we can be so greedy as to patent a life saving procedure and sue everyone who intends to use it for noble purposes.

Re:Capitlism. (1)

OrangeMonkey11 (1553753) | more than 5 years ago | (#27937805)

let now bash capitalism with this one; this is just pure unadulterated greed

would this not fall subject to (1)

cool_story_bro (1522525) | more than 5 years ago | (#27937443)

...prior art?

Bunch of Greedy SOB (1)

OrangeMonkey11 (1553753) | more than 5 years ago | (#27937687)

Human gene is part of nature and is what naturally occur with or without man interaction or interference. Therefore no one person or entity can patent and own exclusive right to something that they do not have part in creating; there should even be an argument about this, the patent office should know better then to entertain these f*cks.

good example of why I donate to the ACLU (2, Insightful)

bcrowell (177657) | more than 5 years ago | (#27937967)

This is a good example of why I donate money annually to the ACLU:

ACLU, PO box 96265, Washington, DC 20090-6265

To code? (1)

WPIDalamar (122110) | more than 5 years ago | (#27938025)

From what I understand, there's a few common methods that everyone uses to deal with genes.

Translating to code.

Genenome.extractGene(chromosome, subPart) : Gene
Gene.getEncoding() : GeneEncoding
GeneEncoding.equals( ... ) : Boolean

Those are standard things that everyone can do.

So to find out if a gene is responsible for something you take a whole bunch of normal people, and a whole bunch of people with a condition.

You extract genes, and see where they are equal or not. Likely with some algorithm that's a lot better than a linear search.

Then you find a gene that differs between groups with a highly reasonable amount of confidence.

You call that gene something, say "BCR1" and you point out it's location, say chromosome 17, sub part 172. (I have no idea how you actually specify that)

Then, you patent it.

Now, nobody else can do a Genenome.extractGene(17, 172) without violating your patent. That makes research on the gene REALLY HARD to do. It essentially makes it so you can't study or develop cures for the condition.

I'm not a laywer, patent expert, nor a geneticist, so I might be way off. But that's how I tend to think of it.

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