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US District Judge Rules Gene Patents Invalid

samzenpus posted more than 4 years ago | from the base-pairs-want-to-be-free dept.

Biotech 263

shriphani writes "A US judge has ruled that Myriad Genetics' breast cancer gene patent is invalid. Hopefully this will go a long way in ensuring that patents on genes do not stand in the way of research. From the article: 'Patents on genes associated with hereditary breast and ovarian cancer are invalid, ruled a New York federal court today. The precedent-setting ruling marks the first time a court has found patents on genes unlawful and calls into question the validity of patents now held on approximately 2,000 human genes.'"

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Wow.... (3, Funny)

nog_lorp (896553) | more than 4 years ago | (#31665932)

I'm glad this is happening. It's a huge weight off my chest.

Re:Wow.... (1, Funny)

Anonymous Coward | more than 4 years ago | (#31665940)

What? Did they steal your breast genes or something?

I don't get it ! (2, Interesting)

Taco Cowboy (5327) | more than 4 years ago | (#31666060)

I don't get it !

If they can patent the way I work (while listening to music), why can't I patent my own genes?

Double standards??

Re:I don't get it ! (5, Insightful)

Jurily (900488) | more than 4 years ago | (#31666352)

Prior art.

Re:Wow.... (0)

NicknamesAreStupid (1040118) | more than 4 years ago | (#31666086)

Me too, they had my balls under a restraining order since puberty.

Conversely (5, Insightful)

eldavojohn (898314) | more than 4 years ago | (#31665936)

Hopefully this will go a long way in ensuring that patents on genes do not stand in the way of research.

And let us also hope that financial backers and investors don't pass on the idea of investing in said research without the potential payout of a full term patent.

As unpopular as the above statement is on Slashdot and as flawed as the patent system is, it still fulfills purposes making this at least a two sided issue. Ignoring either side is nothing but folly.

You can revise your statement to read: Hopefully it's a net positive for gene research.

Re:Conversely (5, Insightful)

alex_guy_CA (748887) | more than 4 years ago | (#31665958)

However, most research and medical breakthroughs come from publicly funded money, research, and institutions. They only find their way into the corporate portfolio latter.

Re:Conversely (1, Insightful)

Anonymous Coward | more than 4 years ago | (#31666046)

However, most research and medical breakthroughs come from publicly funded money, research, and institutions. They only find their way into the corporate portfolio latter.

[citation needed]

Re:Conversely (5, Informative)

NFN_NLN (633283) | more than 4 years ago | (#31666284)

However, most research and medical breakthroughs come from publicly funded money, research, and institutions. They only find their way into the corporate portfolio latter.

[citation needed]

http://www.ornl.gov/sci/techresources/Human_Genome/home.shtml [ornl.gov]

Completed in 2003, the Human Genome Project (HGP) was a 13-year project coordinated by the U.S. Department of Energy and the National Institutes of Health.

  Project goals were to

        * identify all the approximately 20,000-25,000 genes in human DNA,
        * determine the sequences of the 3 billion chemical base pairs that make up human DNA,
        * store this information in databases, ...

Re:Conversely (1, Troll)

Israfels (730298) | more than 4 years ago | (#31666642)

Wasn't the Human Genome Project just used to map the human genome? I wasn't aware that they did "research and medical breakthroughs".

It's the difference between reading a book and writing a book.

Re:Conversely (1, Interesting)

Anonymous Coward | more than 4 years ago | (#31666500)

The current money formula is:
Grant + Patent = Profit

Now you're removing the patent money from the mix.
So the question is, will the grant money be enough to both fund the research and provide enough profit incentive to the researchers so they don't spend their time elsewhere.

Re:Conversely (1)

mweather (1089505) | more than 4 years ago | (#31666646)

That ignores the researchers who were paying patent royalties, which far exceed those receiving them. In the end it makes far more research affordable than unaffordable.

Re:Conversely (3, Insightful)

QuantumG (50515) | more than 4 years ago | (#31666592)

You can do all the research you like, it won't save lives. You can figure out how to make a drug that will cure [insert undesirable disease here] and publish the formula on the Internet.. watch as no-one will pay for the clinical trials to make the drug legal to sell.

Re:Conversely (4, Informative)

besalope (1186101) | more than 4 years ago | (#31666644)

The drug formulas can still patented.

The judge just invalidated corporate patents that restricted others from working on trying to cure problems from "patented" genes without paying royalties.

Re:Conversely (3, Insightful)

afidel (530433) | more than 4 years ago | (#31665992)

Gene patents were always dubious to me, however patents on gene detection methods and kits should be fully capable of obtaining patent protection. It's like copyrights on facts vs collections.

Re:Conversely (1, Insightful)

ArcherB (796902) | more than 4 years ago | (#31666150)

Gene patents were always dubious to me, however patents on gene detection methods and kits should be fully capable of obtaining patent protection. It's like copyrights on facts vs collections.

I agree. How can you patent something that already exists? It would be like discovering some previously unknown roach and slapping a patent on it. Could you charge everyone whose home gets infested by these things? It's not like you invented it. You simply found it. Genes are in every single cell in our body. You can't patent them.

Now if you were to discover a gene sequence that does not naturally occur in nature... patent away. That might be pretty cool.

Re:Conversely (1)

MobyDisk (75490) | more than 4 years ago | (#31666162)

I think the problem is that the hard part is finding the sequence. Once you know the sequence, there's tons of systems in place that can detect it. It's like spending a million dollars to find a number.

Re:Conversely (0)

Anonymous Coward | more than 4 years ago | (#31666230)

Like patenting a large prime number?

Re:Conversely (1)

afidel (530433) | more than 4 years ago | (#31666398)

Making a test that can cheaply identify a specific gene sequence is still a major goal of biotech firms. Today to get a screening for a handful of known cancer and heart disease risks cost over $1,200, much too expensive to be a routine test for the majority of health insurance customers. Drop that cost by 10x and suddenly you have a much larger market.

Re:Conversely (5, Insightful)

PitaBred (632671) | more than 4 years ago | (#31666328)

The device or a novel process? Yes. But you should not be able to patent the gene which effectively makes your device the only way to detect the disease. That is not what the patent system is for. It is for protecting novel inventions, not for locking up essential, basic knowledge with a toll booth.

Re:Conversely (1, Informative)

Anonymous Coward | more than 4 years ago | (#31666010)

Mod parent up.

This is a double edged sword. If companies can't get a patent, why would they invest millions, even billions, into the research, if the moment they make a discovery, the company next door gets to profit from their research for free with ZERO seed investment.
Suddenly their competitors are all charging less because they have no costs to recoup, and the companies that are good enough at research to have made the breakthroughs go bankrupt and disappear.

Yeah, I wouldn't exactly call that win/win.

What this DOES do is essentially put all genetics research companies out of business, and leaves it to government organizations and government funded educational institutions to do the research.
Educational institutions, while they have been successful in many areas of research, are diversified in their funding, and can't even begin to touch the levels of specialized funding that the biotech corporations have for doing this kind of research.

Re:Conversely (5, Insightful)

Bigjeff5 (1143585) | more than 4 years ago | (#31666104)

The genes can't be patented, because they were discovered, not created, and not discovered in the "OMG I just discovered how to make rubber!" kind of way. They were discovered in the "I just patented New England" kind of way.

Now, the tools and methods of discovery, those certainly should be patentable. The genes were always there, however, and we knew they were there somewhere, and the patent does not allow you to do anything with them, it just tells you where they are.

That is why it was struck down, and that is why this won't have any serious effect on medical research. The stuff that should be patentable is patentable, the stuff that should not be patentable is no longer patentable.

Re:Conversely (1)

mibe (1778804) | more than 4 years ago | (#31666296)

Knowing that a gene is there means nothing. Having sequenced the human genome, it's trivial to identify genes (discover them, if you will) with bioinformatics. However, without patents there is no monetary incentive for identifying the function of a gene, which is a much more laborious and expensive process. Now, I think that gene patents are foolish and restrictive, but like the GP you can't just say "well no more gene patents" and be done with it, because then who would fund the research? The solution is for more public funding it would seem to me, since that would appear to suit the cooperative nature of science. Relying on private funding while abolishing gene patents sets the stage for a kind of secrecy that will be more hurtful than the patents were to begin with.

Re:Conversely (4, Insightful)

sweatyboatman (457800) | more than 4 years ago | (#31666406)

I'm sorry, this is a very poor argument.

without patents there is no monetary incentive for identifying the function of a gene

If you figure out the function of a gene you can then make a drug to suppress or improve the function of the gene. Or whatever else. And that drug will be, wait for it, patentable! And when that patent comes out and the FDA approves the drug, it's gonna be kinda obvious to people who should know what the drug you're patenting does to what genes and why.

Perhaps what you mean to say is that without patents, when private industry figures out the function of a gene they will keep it to themselves. But that still doesn't make much sense. Unless you're going to take that information and make a treatment out of it, you're not going to be able to monetize it. (And as soon as you make a treatment, you're going to have to explain to the FDA how that treatment works.)

You could, I suppose, make a treatment and not patent it (like a trade secret). But then you're running the extreme risk of having someone else steal/recreate your discovery and patent your medicine out from under you.

Regardless, the motive to research the function of genes is that if you can figure out what a gene does (and it does something useful), you can develop patentable treatments that manipulate that gene. Patenting the gene is just the icing on the cake.

Re:Conversely (2, Interesting)

mibe (1778804) | more than 4 years ago | (#31666564)

But you don't need to research the function of the gene to develop a patentable treatment, so long as you know the guy down the street is going to research the function and let everyone know.

For instance, Myriad made their money by sequencing BRCA genes - but they only sequence BRCA because they figured out the function of the genes in breast cancer risk. The first part (sequencing tests) is easy, I can quite literally design a sequencing test for that tomorrow (I am a molecular geneticist), but figuring out which genes to sequence and why is the hard part. All I have to do is sit around and wait for some sucker to put in all the R&D money into finding out - for instance - the big autism gene, and then once he's done that I can immediately begin making money off of his work by offering a test for it.

Once again, abolishing gene patents alone isn't the answer. Abolishing gene patents removes the incentive for private funding of genetic research - we need more public funding to fill in the gaps, or private funding will only continue on a condition of secrecy.

Re:Conversely (1)

dudpixel (1429789) | more than 4 years ago | (#31666666)

The stuff that should be patentable is patentable, a very tiny fraction of the stuff that should not be patentable is no longer patentable.

there, fixed it for you.

Re:Conversely (5, Insightful)

Anonymous Coward | more than 4 years ago | (#31666136)

No it doesn't. They can actually make proper inventions. They can invent treatments that target the gene, detection methods to find the gene, methods to remove it, alter it, whatever.

Just because they found it doesn't mean it's patentable. It's naturally occurring, and they had nothing to do with creating it.

Imagine if the guys at the LHC discovered another fundamental force. Should they be able to patent it and claim royalties on everyone who "takes advantage" of their discovery of "new gravity"?

They discovered a gene. They shouldn't have patented it in the first place, they should have invested a tiny bit more to patent a efficient detection method, and still made shitloads of money.

Re:Conversely (4, Insightful)

martin-boundary (547041) | more than 4 years ago | (#31666192)

Yeah, I wouldn't exactly call that win/win.

Then you need to learn some math. Lower drug prices is a WIN for customers. No patents to prevent public research breakthroughs is a WIN for science. That's two WINs, count'em.

If companies can't get a patent, why would they invest millions, even billions, into the research, if the moment they make a discovery, the company next door gets to profit from their research for free with ZERO seed investment.

For the same reason companies today invest millions, even billions into contributing to open source, like the Linux kernel, even though their competitors get to profit from those contributions for free with ZERO seed investment.

What this DOES do is essentially put all genetics research companies out of business,

Good riddance to bad rubbish. If the only way they can contribute research is by blocking others with patents, then we don't need their "research".

and leaves it to government organizations and government funded educational institutions to do the research.

That's a good idea. Medical breakthroughs should be available to all citizens unencumbered by patents, and at affordable prices, and that's the best way to ensure this in the long term. Some industries, like health care, are strategically important. Moreover, with fewer private companies to drain the smart people from universities, the next generation of students would have a higher quality education. Yet another WIN.

Re:Conversely (2, Insightful)

eldavojohn (898314) | more than 4 years ago | (#31666412)

Medical breakthroughs should be available to all citizens unencumbered by patents, and at affordable prices, and that's the best way to ensure this in the long term.

You have missed my point entirely. Without massive private funding these "medical breakthroughs" (which I'm led to believe are needle-in-haystack searches) happen at a slower rate. If that sets it back more than the length of a patent (which is 20 years in the US) then it's a negative net effect on the genetic cures we find for people.

You'll have more affordable cures for the first 20 years but after that the prices will be the same. The difference could be the number of cures and their quality.

Just because we hate patents doesn't mean we have to shut off our brains when we reason out capitalism does it?

Re:Conversely (1, Insightful)

afidel (530433) | more than 4 years ago | (#31666496)

Conversely if you take the money that goes to fat upper management. massive marketing departments, and stockholder profits and plow it back into research you probably end up with more cures. The free market isn't always the most efficient way of accomplishing things despite what some of its adherents like to think.

Re:Conversely (5, Insightful)

laughingcoyote (762272) | more than 4 years ago | (#31666504)

But the fact still remains, any treatment, drug, etc., based upon the gene's discovery, is as patentable as it ever was. The only thing you can't patent is the gene itself, and that's quite correct. If you discover a certain isotope, and find a way to make workable fusion energy from it, you can patent your reactor, but not the isotope itself. That's exactly how the patent system is meant to work-you can patent things you invent, but not things you just find.

That being said, it always saddens me to see "capitalism" thrown around like it's some unimpeachable, unquestionable good force. I wish people would question it, as it's sure got an awful lot of negatives. At some point, I sure hope we can find a better system.

Re:Conversely (0)

Anonymous Coward | more than 4 years ago | (#31666522)

That being said, it always saddens me to see "capitalism" thrown around like it's some unimpeachable, unquestionable good force.

He did what now?

Re:Conversely (1)

Cryacin (657549) | more than 4 years ago | (#31666556)

+5 insightful for listing the better model.

Anybody?


...

I guess we're stuck with capitalism for a while longer.

Re:Conversely (1)

T Murphy (1054674) | more than 4 years ago | (#31666514)

While I agree the patent system needs work, being so one-sided may be a bit too far. I support the use of government money to fund medical research (the saving lives kind, not the blue pill kind), but there is only so much money out there. Unlike copyrights, medical patents do expire, so these corporate-funded breakthroughs benefit everyone in the end (of course, Big Pharma wants to change this).

The government only has so much money to put into research, so it should be focused on things that take longest to become profitable (mostly basic research). If a corporation thinks it can turn a profit on a drug before the patent expires, that's a privately funded project the government doesn't have to pay for. By the time the government could afford to do the research, the patent may be reaching expiration anyways.

The lack of patents may allow for more branch-off research, but I wouldn't be confident that could make up for what patented research can do. Given we are talking about breakthroughs that could save lives, I think we have to choose the more reliable route, even if some aspects are disagreeable.

Re:Conversely (5, Insightful)

Anonymous Coward | more than 4 years ago | (#31666092)

There is absolutely no way we can grant monopolies on certain aspects of life, to anyone. Whether it is a good business proposal to found science or not, it is not correct at all.

Patents like this come with the power to hold people ransom on existential needs. That cannot, ever, be right.

Another reason, Gene's are nature's "programming language". Once you can read some of it, reasonable efforts will help you to understand more of it.
 
  But, there is no point or fairness in granting anyone who finds out "something" first the right to, for many years, control its use. Things will be found out because people NEED to figure them out, even without prospect to get money from patents. This is also why you don't need to patent software - just because someone needed a selectable button and did it first, that does not mean they should be able to patent it and henceforth control all selectable buttons - someone will absolutely, positively need the exact same thing and would have figured it out themselves anyways, with a reasonable degree of certainty.

Re:Conversely (5, Insightful)

Burdell (228580) | more than 4 years ago | (#31666144)

Do you think that an astronomer should be able to patent a planet because they saw it first? How about the particle physicists working on the LHC patenting the Higgs bosun if they find it (sorry, no gravity without a license!)? Why should someone be able to patent a naturally occurring gene, just because they found it first? If they find something original, such as an easy way to detect the presence or absence of a gene that can lead to illness, or a way to use that knowledge to treat the condition caused by the gene, patent away, but nobody should be able to patent something that has existed in thousands or millions of people for decades or centuries just because they were the first to track it down. They didn't invent or create anything.

Re:Conversely (0, Redundant)

TooMuchToDo (882796) | more than 4 years ago | (#31666532)

If there isn't a financial return, who is going to drop billions of dollars into biotech research? The government? Academia? Perhaps. But not as much research will have been done compared to all of the private companies out there in addition to gov and edu researchers. I'm not saying genes should be patented, but the money has to come from somewhere.

Re:Conversely (5, Insightful)

robotkid (681905) | more than 4 years ago | (#31666226)

As unpopular as the above statement is on Slashdot and as flawed as the patent system is, it still fulfills purposes making this at least a two sided issue. Ignoring either side is nothing but folly. You can revise your statement to read: Hopefully it's a net positive for gene research.

Good thought, especially for more tricky examples like patient-derived cell lines or naturally occurring therapeutic molecules, but in this case such worry is not warranted. Treatments, cures, diagnostics, etc are all still patentable, and they are what the investors were looking to make their money from in the first place.

The central issue at stake was whether the discovery of a gene in and of itself, which is just a snipped of biological information, was patentable, and all the resulting technology that utilized that information would be rendered derivative works. Think about that for a moment, if someone went out and discovered a new type of fish, maybe they'd get to name it but they certainly can't claim to own all future profits made by anyone else catching and selling that fish. More to the point, if someone then discovered that the fish produced a chemical that cured some disease, they original discoverer of the fish would not have the ability to sue and say that was reverse engineering of his patented intellectual property. Discovering a gene is not terribly different - it already existed all over the world long before we had to tools to identify and study it. Discovering is different than inventing, and in the case of genes discovery by itself is a far cry from understanding how it works, much less how to manipulate it to fix a disease.

Also, for context, the only real reason one would want to patent a gene is some sort of exclusivity clause (i.e. I discovered this breast cancer gene so now only I can work on a cure for it) or for patent trolling (now lets sue all the other folks working on breast cancer cures). Both scenarios would effectively destroy the ability for competing companies to work on the same disease, and lead to a massive gene-squatting free for all. IAAB (I am a biochemist), and I honestly can't think of any scenarios where being able to patent a naturally occurring gene would be good for either society as a whole or even just letting the market do what it does best.

Re:Conversely (1, Flamebait)

eldavojohn (898314) | more than 4 years ago | (#31666390)

Also, for context, the only real reason one would want to patent a gene is some sort of exclusivity clause (i.e. I discovered this breast cancer gene so now only I can work on a cure for it) or for patent trolling (now lets sue all the other folks working on breast cancer cures). Both scenarios would effectively destroy the ability for competing companies to work on the same disease, and lead to a massive gene-squatting free for all. IAAB (I am a biochemist), and I honestly can't think of any scenarios where being able to patent a naturally occurring gene would be good for either society as a whole or even just letting the market do what it does best.

I am not a biochemist so I must ask some questions about your particular example with breast cancer genes. I'm lead to believe that 'discovering a breast cancer gene' is extremely difficult. Doesn't the number of sets of DNA one must collect coupled with the accuracy of those collections coupled with the willingness of the volunteers coupled with the number of potential snippets of DNA that could be the gene coupled with all sorts of other complications and permutations make finding such a gene like finding a needle in a haystack? Doesn't that require vast amounts of resources? And then to do it for all sorts of diseases?

Now explain to me how those losses are recouped in your model. That's all I was asking. Not saying that astronomers should be able to patent planets they find or that discoveries should be patentable ... although I did enjoy all the strawmen that were thrown at me and the fact that they were modded up. I also enjoyed that because we've sequenced the gene, that makes for prior art should anyone actually begin to investigate what those genes are responsible for. But back to playing the devil's advocate. Here are proposed assumptions:

  1. The odds of finding the breast cancer gene (or gene set, right?) are astronomically high.
  2. Unfortunately, this is the only way to cure breast cancer once and for all.
  3. If you found this, since it involved lottery winning odds you would recoup your investment at a lottery winning payout.
  4. This doesn't mean you get to sue everyone who was looking for the gene(s) that caused breast cancer, it means if anyone uses your genes to develop a cure, you get royalties for that patent term.
  5. Other teams can keep looking for a gene, they just have to normalize their data so that they aren't looking for your already discovered gene or (after checking your work against their data) doubt the accuracy of your samples and continue on with their quest.

Patent trolls are patent trolls. You'll find them anywhere you find patents. I scoff at your claims of gene squatting as you have to say what the gene does and pay the huge patent fees to get the patent (so you can't just patent each gene as the breast cancer gene).

Good luck with your work. I am glad that gene patents are invalid. I was merely expressing a mild amount of discomfort that it could have a negative overall effect. If you can assert that I'm confused or misinformed, I'd be a very happy man.

The volatility (put/call orders) on Myriad Genetics tells me this is going to have profound effects on genetics companies [marketintellisearch.com] , I hope the best for your employment and hope that the entire genetics industry (and above searches) don't become insane burdens on the taxpayer.

Re:Conversely (1)

einhverfr (238914) | more than 4 years ago | (#31666442)

I dunno. What constitutes infringement of such a gene patent?

I think it's fiarly obvious that exclusive rights to genes, read literally, would be stupid. After all, that would allow the pharmaceutical company to go around suing breast cancer patients for patent infringement on the theory that they probably have the patented genes. If these are not provided for in statute specificaly, I don't think they should be subject to patent.

The closest thing I can think of are plant patents, but they are surprisingly limited. If I buy two patented roses, I can hybridize them without running afoul with the patent laws at least here in the US. OTOH, if I propagate from cuttings, I am infringing. OTOH a properly cared for rose bush will outlive the patent anyway so I can just wait.... Same thing with apple trees.

I am not saying that gene patents are entirely bad, but before we go around allowing them we had better define in statute exactly what rights are granted and not just extend by judicial fiat the patent system to those areas.

Well of course its invalid... (5, Funny)

paper tape (724398) | more than 4 years ago | (#31665954)

Well of course its invalid...

God could claim Prior Art.

;)

Re:Well of course its invalid... (1)

JustShootMe (122551) | more than 4 years ago | (#31665968)

but then he'd have to provide an address for service, and there goes Christianity.

Re:Well of course its invalid... (5, Funny)

Cryacin (657549) | more than 4 years ago | (#31666076)

Come on, if God was such a freaking fantastic engineer, why the hell did he put a sewage outlet right in the middle of a recreational zone?

Re:Well of course its invalid... (2, Funny)

Anonymous Coward | more than 4 years ago | (#31666388)

Hey! New Jersey was created by the British, not God!

Re:Well of course its invalid... (1)

Dr Herbert West (1357769) | more than 4 years ago | (#31665996)

well, all I have to say is, "thank f**kin God" for our non-patentable genes...

sigh.. (1)

JustShootMe (122551) | more than 4 years ago | (#31665956)

It'll be overturned on appeal.

About time they got their hands out of my genes! (3, Insightful)

pecosdave (536896) | more than 4 years ago | (#31665960)

Seriously, all this groping around in my genes and telling me that they owned anything they found. Fucking lawyers.

Re:About time they got their hands out of my genes (2, Insightful)

JustShootMe (122551) | more than 4 years ago | (#31665976)

Yeah. that's not lawyers! That's a wife!

Re:About time they got their hands out of my genes (2, Funny)

Cryacin (657549) | more than 4 years ago | (#31666082)

Generally once they become wives, the groping ceases. Mind you, they still lay claim!

Re:About time they got their hands out of my genes (0)

Anonymous Coward | more than 4 years ago | (#31666608)

Who are the morons that modded the parent OT?!? Freaking hillarious!

Re:About time they got their hands out of my genes (1)

pecosdave (536896) | more than 4 years ago | (#31666110)

I keep my valuables in my genes.

They're both after the same thing either way.

Re:About time they got their hands out of my genes (1)

M4DP4RROT (1377075) | more than 4 years ago | (#31666270)

Now we just have to figure a way to stop them from groping around in my jeans and taking whatever they find, and we're set.

Re:About time they got their hands out of my genes (1)

sweatyboatman (457800) | more than 4 years ago | (#31666420)

It's unclear to me why the lawyers are the ones you blame and not, say, the executives at Myriad. Or the Congress men and women who worship at the feet of the IP industry.

Monsanto (5, Interesting)

Anarki2004 (1652007) | more than 4 years ago | (#31665962)

I would like to see something similar happen to Monsanto's patents.

Re:Monsanto (1)

Manfre (631065) | more than 4 years ago | (#31666026)

Sadly, not going to happen. Monsanto's will hold up a lot better because their patented material was created through selective breeding.

Re:Monsanto (4, Interesting)

Bruha (412869) | more than 4 years ago | (#31666068)

I think it should be illegal though. If you have a farm next door to a patented crop, bees cross polinate, and then monsanto is knocking on your door.

In essence their patent is viral in nature.

Re:Monsanto (0)

Anonymous Coward | more than 4 years ago | (#31666316)

Then you should argue that the laws include provisions for the protection of farmers from cross-pollination leading to innocent infringement.

Re:Monsanto (1)

shutdown -p now (807394) | more than 4 years ago | (#31666386)

There is no "innocent infringement" there because there is no infringement, period. Any other notion is simply criminally insane.

that's not really how the case worked (2, Informative)

YesIAmAScript (886271) | more than 4 years ago | (#31666580)

It would be one thing if the farmer were complaining he couldn't sell his crop because it was contaminated. Instead he was found to be using the features of the Monsanto crop (Roundup resistance).

If the crop just blew over and he still grew it as normal it'd be one thing, but instead he knew it was genetically modified and he was using that feature of it to make his growing easier.

Re:Monsanto (1)

sweatyboatman (457800) | more than 4 years ago | (#31666440)

fine, but wouldn't that make the patent for the method of selective breeding that led to their GM plants?

claiming to have a patent on the process of pollination is a bit much, IMHO.

Re:Monsanto (1)

ImNotAtWork (1375933) | more than 4 years ago | (#31666214)

Monsanto is a culprit but the issue much larger than just this one company. We need to help governments pull their collective heads out of their collective you know whats. This link sums up a lot of the impacts that can be seen and forecast due to various Countries' Seed Acts. http://www.zcommunications.org/the-indian-seed-act-and-patent-act-by-vandana2-shiva [zcommunications.org]

I'm glad and all... (4, Interesting)

JorDan Clock (664877) | more than 4 years ago | (#31665970)

But I'm kind of upset that we live in a society that we have to tell someone "No, you cannot have exclusive rights to a natural occurrence." Worse yet, this "patent" prevented anyone from even looking at the gene, whether it was for diagnostic or research purposes.

All Women Organizations Should Support This ... (-1)

Anonymous Coward | more than 4 years ago | (#31666002)

.. and work together to ensure that this judgment sticks through all the possible appeals. This is not just for the good womankind but for all mankind. WE, the people, own our genes, not some greedy corporation. And just to rile you up some more, here's a quote from TFA:

"Approximately 20 percent of all human genes are patented, including genes associated with Alzheimer's disease, muscular dystrophy, colon cancer, asthma and many other illnesses."

Natural Resource (5, Insightful)

LightPhoenix7 (1070028) | more than 4 years ago | (#31666006)

You can't patent coal, or wood, so why should you be able to patent a natural resource like DNA? If they create something new from it, like a new allele or treatment, I'd say that's fair game. In the end, this is an extremely important ruling, but unfortunately it's probably not the end. It will probably require the Supreme Court to make a ruling. I don't see anyone involved giving up that easily.

Re:Natural Resource (0)

Anonymous Coward | more than 4 years ago | (#31666218)

Not a patent on a natural resource, but patent number 5443036 should give you an idea about what our system grants patents for.

Abstract:

A method for inducing cats to exercise consists of directing a beam of invisible light produced by a handheld laser apparatus onto the floor or wall or other opaque surface in the vicinity of the cat, then moving the laser so as to cause the bright pattern of light to move in an irregular way fascinating to cats, and to any other animal with a chase instinct

Re:Natural Resource (1)

robbyjo (315601) | more than 4 years ago | (#31666354)

Even for a new allele, say a SNP, its combination is only A, C, T, or G. Unless they can show that it is highly unlikely that the patented modification would occur naturally, any new alleles should be patent free. And heck, they can't compare the chance with pure random chance since we know that mutations / gene modifications do not occur randomly either. Claiming so would be very hard.

New treatment may or may not be patentable as well. If the treatment involves a naturally occurring sequence from other people (I'm thinking of siRNA and the likes), they can't patent the sequence either. They can only patent the method to synthesize it. Even then, if the method is in fact a naturally occurring method (i.e., that's how the body of human or other creatures does it), then they can't patent it either.

slow down there! (1)

sweatyboatman (457800) | more than 4 years ago | (#31666546)

I'm pretty sure this case isn't all that far reaching.

Certainly the treatment, even if its naturally occurring, would still be patentable. Sure, they wouldn't likely be able to win a lawsuit against a guy whose body was producing their treatment (ala Monsanto), but they could definitely win against another pharma producing and selling their patented treatment in vats. Which is what they want the patent for anyways.

The allele thing is probably similar. They could still patent the assembly of the pieces in a particular order for the purposes of making medicine. And that would probably hold up just fine even after this ruling.

Basically every abstraction away from genes would need its own ruling.

Re:Natural Resource (0, Flamebait)

QuantumG (50515) | more than 4 years ago | (#31666630)

Who modded this up? There's a real conversation to be had here, and stupid analogies don't help.

The issue is: drugs have to go through expensive clinical trials before they are legal to be sold. Currently, drug companies pay for these trials because they are guaranteed exclusivity over the manufacturer of the drug should it turn out to be viable. Gene patents are an extension of this process, they give exclusivity to the drug company to develop the drug to target the gene. Without them, gene research is unlikely to lead to drugs to treat disease.

Allow only 10 patents per year (1, Insightful)

kaltkalt (620110) | more than 4 years ago | (#31666012)

The abuse of the patent system is beyond repair. I say we completely overhaul the entire system and only grant 10 patents per year. There are not even 10 things that are patent-worthy invented in an average year. Not anymore. Combining a cellphone and a pen is not unique and nonobvious and should not be patentable. Give the 10 best, truly innovative inventions one of ten patents after an exhaustive review at the end of the year. No genetic patents, no "business method" patents. Only truly novel inventions should be patentable. Frankly I can't think of the last invention that I've seen that is worthy of a patent. 10 per year is still allowing at least 5 crap things to get an unfair monopoly that is completely undeserved.

Re:Allow only 10 patents per year (-1, Troll)

Bigjeff5 (1143585) | more than 4 years ago | (#31666128)

What are you, retarded?

kwod joack (0)

Anonymous Coward | more than 4 years ago | (#31666158)

MY mother was the governor of Alaska, you insensitive clod!!!

Re:Allow only 10 patents per year (1)

techno-vampire (666512) | more than 4 years ago | (#31666220)

No genetic patents, no "business method" patents.

I think your basic idea goes too far, but in this, at least, I agree. All business patents should be thrown out on the grounds that patents were never intended to protect ideas, just concrete applications of them. And, on the grounds that patent law originally specified that methods in and of themselves were not patentable, out go the software patents along with the rest. Do that, and most of the mess clears itself up.

Re:Allow only 10 patents per year (1)

robot256 (1635039) | more than 4 years ago | (#31666334)

But then all the lawyers would resubmit millions of applications every year. You also have to limit the number of submissions per inventor or apply a tiered pricing program (first three applications cost $200 each, next 10 cost $10,000 each, after that $30,000 each). That way small inventors could compete with large corporations without totally swamping the system.

Re:Allow only 10 patents per year (1)

FiloEleven (602040) | more than 4 years ago | (#31666468)

Yes! And there should be several rounds of competition and public voting! The competitors must complete several challenges during each round, such as digging for prior art to disqualify their rivals and giving speeches to defend their claim to the Top 10. The whole thing should be shown on C-SPAN and hosted by a three-judge panel: a patent lawyer, an inventor, and Paula Abdul.

Re:Allow only 10 patents per year (1)

Cryacin (657549) | more than 4 years ago | (#31666584)

You left out the death match.

What's all this bunk about patent genes? (2, Funny)

Anonymous Coward | more than 4 years ago | (#31666028)

Back in my day, genes were supposed to help give you the rugged looks of a cowboy or an outdoorsman, not of a greasy 19-year old kid on the make at the disco with his obnoxious friends. Patent genes! What will they think of next!!

(after whispered exchange)

Ohhhhh. Um. Never mind!

Discovery, not Invention (5, Insightful)

BlueBoxSW.com (745855) | more than 4 years ago | (#31666154)

See the difference?

Oh, Thank Gawd.... (1)

undecim (1237470) | more than 4 years ago | (#31666156)

I was worried about getting sued by one of those patent holders. As much as I copy these genes, they could have sued me for all the money in the world.

Is this what we want? (0, Offtopic)

rhadc (14182) | more than 4 years ago | (#31666170)

This might be a good target for sarcastic comments, but I wonder if there isn't a more worthwhile line of thinking.

Do we put folks into prison to protect those who are outside, or is it merely punitive? Knowing that many are going to come out at some point, doesn't it make sense to prepare the convicted for living a normal life? The story seems to highlight the question for me of whether we would rather "punish" or "correct" those whose trajectories seem to favor harm to society. What do you say to a person who chooses the side that, despite the hardships that come with it, is the one he understands?

Re:Is this what we want? (1)

Caraig (186934) | more than 4 years ago | (#31666660)

The glib answer I'm about to give makes it seem clear-cut, but it really isn't.

Punitive sentences for the unrepentant, rehabilitative for those who are misguided or simply mentally ill.

The problem is, how do you tell when a convict is one or the other? Quasifunctional sociopaths are accomplished, convincing liars (they even convince themselves, sometimes) and could act like they're all cured. The mentally ill, once rehabilitated, might be overwhelmed by guilt and retreat into the 'easy' path of seeking punitative sentencing. There are a lot of other combinations that can lead to false negatives or false positives.

Besides, right now, most "justice" and "corrections" systems are not set up to be rehabilitative. I don't even think modern psychiatry and psychology knows *how* to reliably rehabilitate most sorts of criminals; it strikes me as a complex problem requiring a multidisciplinary solution that we as a culture are not capable of solving right now.

And, heaven help me, I'm the sort of person who thinks Robert Fuld got off too easy with just being cold-cocked. :(

prior art: (1)

circletimessquare (444983) | more than 4 years ago | (#31666178)

mother fucking nature

greedy douchebags

Don't forget GMOs (4, Informative)

JumboMessiah (316083) | more than 4 years ago | (#31666210)

Gene patents are also big in the agriculture industry [twnside.org.sg] . And they actively sue [iastate.edu] to keep it that way.

Gene Patents Don't Interfere With Research (1)

Grond (15515) | more than 4 years ago | (#31666234)

Hopefully this will go a long way in ensuring that patents on genes do not stand in the way of research.

If you look at the empirical data [umd.edu] , gene patents don't interfere with research. In a survey of 414 biomedical researchers at universities, government, and nonprofit institutions, none of the 381 respondents reported abandoning a line of research due to patents and only five delayed completion of an experiment for more than one month. Only one respondent reported paying for access to research materials covered by a patent and the fee was under $100. The paper concluded that "access to patents on knowledge inputs rarely imposes a significant burden on academic biomedical research." John P. Walsh, et al, "View from the Bench: Patents and Material Transfers," 309 Science 2002 (September 2005).

Re:Gene Patents Don't Interfere With Research (2, Insightful)

Chris Burke (6130) | more than 4 years ago | (#31666326)

So gene patents are both ethically wrong since they're patenting a discovery instead of an invention, and useless for the patent holder as well. Good to know.

you're using your numbers wrong (1)

sweatyboatman (457800) | more than 4 years ago | (#31666476)

Only one respondent reported paying for access to research materials covered by a patent

sounds to me like 1 out of 381 research labs were using patented genes. either the patented genes aren't all that interesting (possible) or the researchers are actively choosing not to research those genes to avoid the patent issues.

Does Myriad really "own" the gene? (1)

El Fantasmo (1057616) | more than 4 years ago | (#31666250)

Some one correct me if I'm wrong... Doesn't Myriad Genetics have a patent on a method for testing or gene manipulation or something of that sort, NOT the gene itself?

Re:Does Myriad really "own" the gene? (1)

sir_eccles (1235902) | more than 4 years ago | (#31666520)

Both, which is sort of what the whole case was about. Just looking at 5747282 for example, the majority of the claims are for a specified sequence, then look at claim 20:

20. A method for screening potential cancer therapeutics which comprises: growing a transformed eukaryotic host cell containing an altered BRCA1 gene causing cancer in the presence of a compound suspected of being a cancer therapeutic, growing said transformed eukaryotic host cell in the absence of said compound, determining the rate of growth of said host cell in the presence of said compound and the rate of growth of said host cell in the absence of said compound and comparing the growth rate of said host cells, wherein a slower rate of growth of said host cell in the presence of said compound is indicative of a cancer therapeutic.

I'm still reading the judgement (156 pages) but the impression I get is that the whole lot is invalid because page 136 onwards says so.

The US Supreme Court ruling (4, Interesting)

pearl298 (1585049) | more than 4 years ago | (#31666254)

The US Supreme Court ruling used the term "anything under the sun that is made by man".

The essence of this lawsuit is that the natural genes were "discovered" not "made by man".

In other words these patents were invalid under existing law. Nothing new here, bad patents have been around since King James (the gay King of England and Scotland).

Re:The US Supreme Court ruling (1)

robot256 (1635039) | more than 4 years ago | (#31666348)

They were not made by man. They were made by woman (a.k.a. your mom).

Re:The US Supreme Court ruling (0)

Anonymous Coward | more than 4 years ago | (#31666518)

The King James of the King James Bible

Re:The US Supreme Court ruling (1)

FiloEleven (602040) | more than 4 years ago | (#31666538)

Hmm, so if I'm a Platonist, then...everything already exists in Forms, thus everything is discovered, never invented, thus...no patents?

An almost insignificant start (1)

RobinEggs (1453925) | more than 4 years ago | (#31666294)

Well, I suppose it's nice that someone finally ruled you can't patent the genetic code itself, but the net change will be practically nothing.

If they can still patent every single technique and tool involved in examining, testing, or isolating the gene then who gives a crap if they pretend they own the code? We'll still end up reinventing the wheel every time we'd like to look at any known gene; either that or we'll pay thousands of dollars in patent fees per procedure. I suppose it's nice that some district court judge finally made the biggest No Flipping Duh ruling of the genetic age, but I think it changes very little in practical terms.

Patent pending (1)

mirix (1649853) | more than 4 years ago | (#31666306)

I'm still waiting on my patent on fire to go through.

thank God (1)

Charliemopps (1157495) | more than 4 years ago | (#31666350)

finally someone gets it right. There is no part of the patent system for offensive than gene patents.

Henrietta Lacks (2, Informative)

blaster151 (874280) | more than 4 years ago | (#31666356)

It was so surreal to see this as the most recent headline on Slashdot - two minutes before, I'd finished listening to the audio version of "The Immortal Life of Henrietta Lacks," which touches on issues surrounding genetic research and the unfortunate incursion of capitalism into tissue storage and research. The book itself is a fascinating mix of science and history, but the Afterword is all about the commercialism of genetic research and the obstacles it's introducing to scientific progress. Who owns human tissues and the research advances that come from them: the patients, the researchers, or the scientific community and the world? More information about the book can be found here: The Immortal Life of Henrietta Lacks [amazon.com]

I was dismayed to learn that it would cost millions to test one individual for all known genetic diseases, not because of inherent costs of the technology but because of all the patents and licensing fees. I hope that today's positive ruling cascades in positive ways to other realms of gene patenting and unthrottles scientific progress.

Chakrabarty case (1)

Beerdood (1451859) | more than 4 years ago | (#31666382)

This ruling reminds me of a segment I saw in a documentary ( the corporation [imdb.com] - scroll down for quote). It always shocked me that something like a gene or life form could be patented simply by discovering it. You didn't invent it, why should you own the rights to it? If you create a brand new gene then you should you be able to profit for it, but for a gene that already exists? It may seem a bit off topic, but this is case is what paved the way for gene patenting - the ability to patent anything biological (save for a full human). I hope this case paves the way to new patent laws on biology.

The Chakrabarty case is one of the great judicial moments in world history. And the public was totally unaware it was actually happening as a process was being engaged. General Electric and Professor Chakrabarty went to the patent office with a little microbe that eats up oil spills. They said they had modified this microbe in the laboratory, and therefore it was an invention. The patent office and the U.S. Government took at look at this "invention"; they said, 'No way. The patent statutes don't cover living things. This is not an invention". Turned down. Then, General Electric and Doctor Chakrabarty appealed to the U.S. Customs Court of Appeal. And, to everyone's surprise, by a 3-to-2 decision, they overrode the patent office. They said, 'This microbe looks more like a detergent, or a reagent, than a horse or a honeybee". I laugh because they didn't understand basic biology; it looked like a chemical to them. Had it had an antenna, or eyes, or wings, or legs, it would never have crossed their table and been patented. Then the patent office appealed. And what the public should realize now is the patent office was very clear that you can't patent life. My organization provided the main amicus curiae brief. "If you allow the patent on this microbe," we argued, "it means that without any congressional guidance or public discussion, corporations will own the blueprints of life". When they made the decision, we lost by 5-to-4, and Chief Justice Warren Berger said, "Sure, some of these are big issues but we think this is a small decision". 7 Years later the U.S. Patent Office issued a 1 sentence decree, "You can patent anything in the world that's alive, except a full-birth human being". We've all been hearing about the announcement that we have mapped the human genome. But what the public doesn't know is now there's this great race by genomic companies and biotech companies and life science companies to find the treasure in the map. The treasure are the individual genes that make up the blueprint of the human race. Every time they capture a gene and isolate it, these biotech companies claim it as intellectual property. The breast cancer gene, the cystic fibrosis gene, it goes on and on and on. If this goes unchallenged in the world community within less than 10 years a handful of global companies will own, directly, or through license, the actual genes that make up the evolution of our species. And they're now beginning to patent the genomes of every other creature on this planet. In the age of biology the politics is going to sort out between those who believe life first has intrinsic value, and therefore we should choose technologies and commercial venues that honor the intrinsic value. And then we're going to have people who believe, "Look, life is a simple utility, it's commercial fare", and they will line up with the idea to let the marketplace be the ultimate arbiter of all of the age of biology.

When are patents ever good? (1)

KarlIsNotMyName (1529477) | more than 4 years ago | (#31666392)

Patents can take a long walk off a short evolutionary path.

Let me play Devil's advocate. (1)

plopez (54068) | more than 4 years ago | (#31666434)

Patents, even of genes, may not be a bad thing. Here's the point of patents: you have to reveal how it works. Why? to advance the state of the science. Not to create a monopoly, but rather to prevent them. I know this is counter intuitive. But it creates a a situation where the next research group can come along, study the patent and then say "Aha! Now we know the next step to take". And as long as they can show a substantial improvement, they can patent their work as well, even *before* the previous patent expires.

The alternative is to lock information away as a trade secret.

What many people don't realize is that patents are written directly into the Constitution of the US. See Article I, Section 8. That is how important they were to the drafters of the document.

My .10 USD.

Photographs (1)

zlel (736107) | more than 4 years ago | (#31666450)

It occurred to me that capturing genetic code as a database is somewhat (albeit remotely) like taking a photograph of something that already exists in nature. If patents are there to protect invention (ie, to encourage invention by making it profitable), why is literary work not patentable? If a sci-fi writer invents a new scientific concept and builds a story around it, he may be able to patent that scientific concept, but there's nothing to stop other writers from stealing his invention in writing, is there? At the end of the day, I still don't see why software isn't "literary work".

This will lower medical costs (1)

guyminuslife (1349809) | more than 4 years ago | (#31666654)

I mean, who wants to have to pay royalties whenever they get cancer? ;-)

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