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US Says Genes Should Not Be Patentable

Soulskill posted more than 3 years ago | from the roddenberry-siskel-and-simmons-agree dept.

Biotech 127

Geoffrey.landis writes "A friend-of-the-court brief filed by the US Department of Justice says that genes should not be patentable. 'We acknowledge that this conclusion is contrary to the longstanding practice of the Patent and Trademark Office, as well as the practice of the National Institutes of Health and other government agencies that have in the past sought and obtained patents for isolated genomic DNA,' they wrote (PDF). The argument that genes in themselves (as opposed to, say, tests made from genetic information, or drugs that act on proteins made by genes) should be patentable is that 'genes isolated from the body are chemicals that are different from those found in the body' and therefore are eligible for patents. This argument is, of course, completely silly, and apparently the US government may now actually realize that."

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Monsanto will most likely get this reversed (4, Informative)

bl8n8r (649187) | more than 3 years ago | (#34072352)

Because it will affect their monopoly, which is anti-capitalist. http://www.sourcewatch.org/index.php?title=Monsanto,_Genetic_Pollution_and_Monopolism [sourcewatch.org]

Re:Monsanto will most likely get this reversed (4, Insightful)

h4rm0ny (722443) | more than 3 years ago | (#34072398)

All the more reason to write to your representatives and tell them how you feel about this. Of course I'm in the UK, but if the US rejects patenting genes, that will help the cause for all of us.

Re:Monsanto will most likely get this reversed (2)

echucker (570962) | more than 3 years ago | (#34072540)

You beat me to it. Monsanto was the first thing I thought of when I heard "patent" and "gene" in the same sentence.

Re:Monsanto will most likely get this reversed (0)

Anonymous Coward | more than 3 years ago | (#34072824)

I think we all thought of Monsanto. I'm glad to hear sound reasoning from the US gov. Genes should never be patented. Ever.

Re:Monsanto will most likely get this reversed (1)

erroneus (253617) | more than 3 years ago | (#34072656)

Exactly where I was going. No need to say it again. This would crush Monsanto and I hope it does.

Re:Monsanto will most likely get this reversed (5, Informative)

toppavak (943659) | more than 3 years ago | (#34072730)

The majority of Monsanto's patents actually deal with the process of generating the transgenic organism and would be unaffected by this ruling. Similarly, any company with patents on a method for testing for a mutation would be similarly unaffected- only patents that explicitly claim a specific sequence would be undermined. Cambia has an awesome tool [patentlens.net] that will let you search the USPTO databases for whether patents on certain organisms actually claim gene sequences or just reference them.

Re:Monsanto will most likely get this reversed (3, Interesting)

Schadrach (1042952) | more than 3 years ago | (#34072790)

Wouldn't this at least keep them from declaring that fields adjacent to fields that use their seeds and somehow end up with genes from their "sterile" plants are somehow in violation of some kind of agreement or patent, since the genetic sequence itself can't be owned by Monsanto?

Re:Monsanto will most likely get this reversed (1)

ultranova (717540) | more than 3 years ago | (#34073392)

Wouldn't this at least keep them from declaring that fields adjacent to fields that use their seeds and somehow end up with genes from their "sterile" plants are somehow in violation of some kind of agreement or patent, since the genetic sequence itself can't be owned by Monsanto?

No, because they have more money than the farmer the field belongs to, and thus can outlast him in court.

Re:Monsanto will most likely get this reversed (0)

Anonymous Coward | more than 3 years ago | (#34073754)

declaring that fields adjacent to fields that use their seeds and somehow end up with genes from their "sterile" plants

If by "somehow" you mean forced-breeding of Roundup tolerant canola?

I'm assuming this [wikipedia.org] is the case you're referring to.

From the judge:
infringement arises not simply from occasional or limited contamination of his Roundup susceptible canola by plants that are Roundup resistant. He planted his crop for 1998 with seed that he knew or ought to have known was Roundup tolerant.
Read the whole judgement, the farmer found some plants which he knew were herbicide-resistant and selectively bred them to get enough seed to cover a significant portion of is crop.
This isn't an "oops, 'somehow' some seed blew onto my field" situation.

No, if you want to be angry at Monsanto, be angry about the silly rBGH labels [wikipedia.org] and using their lawyers to quash "negative" stories about them.

Re:Monsanto will most likely get this reversed (2, Insightful)

shaitand (626655) | more than 3 years ago | (#34075518)

"Read the whole judgement, the farmer found some plants which he knew were herbicide-resistant and selectively bred them to get enough seed to cover a significant portion of is crop."

So? Sorry but I see no reason you should be able to own a plant or genes in the plant that could be bred into subsequent generations.

Monsanto has the only seed you can be certain is resistant and has a patent to guarantee that. Subsequent generations could exhibit the gene only partially or to a lesser extent. That is all the market advantage they need.

Re:Monsanto will most likely get this reversed (1)

sjames (1099) | more than 3 years ago | (#34074626)

The troublesome ones are different, for example, the roundup ready canola. They enforce that based solely on the genetic traits of the plant. That's why they sue anyone whose canola contains those genes even if it is clearly the result of hybridization and even though it is so poorly controlled that there are now a good many roundup ready weeds growing along the highways in areas that grow canola.

Re:Monsanto will most likely get this reversed (1)

WeeBit (961530) | more than 3 years ago | (#34075814)

I have not seen one of Monsanto's publicity campaigns that did not claim their Genes were patented. Everyone of them claim they are. Not only that when they take these farmers to court they also take their gene evidence with them as claiming ownership of the gene. So does this mean that Monsanto will not be able to sue farmers ever again?

Out of all of this. I truly hope that if they can no longer patent the genes, many good scientist will come forward with a means of fighting Monsanto. Monsanto has never been tested as safe.

Re:Monsanto will most likely get this reversed (4, Informative)

khallow (566160) | more than 3 years ago | (#34072796)

which is anti-capitalist

"Anti-capitalist" would mean that they oppose in some way private ownership of capital (which clearly they don't have a problem with). "Anti-competitive" is the better term.

Re:Monsanto will most likely get this reversed (1)

Noitatsidem (1701520) | more than 3 years ago | (#34073416)

Actually, it's "private ownership of resources or capital," you could very well argue a patent to be a resource. So, uh yeah... Anti-capitalist is (arguably) proper.

Re:Monsanto will most likely get this reversed (1)

khallow (566160) | more than 3 years ago | (#34073518)

Actually, it's "private ownership of resources or capital," you could very well argue a patent to be a resource. So, uh yeah... Anti-capitalist is (arguably) proper.

And you can argue the Moon is made of green cheese. A lot of nonsense is "arguable".

Re:Monsanto will most likely get this reversed (1)

sjames (1099) | more than 3 years ago | (#34074644)

The term arguable does imply that the argument isn't laughable.

Re:Monsanto will most likely get this reversed (1)

khallow (566160) | more than 3 years ago | (#34074692)

The term arguable does imply that the argument isn't laughable.

Not when it is inappropriately used.

Re:Monsanto will most likely get this reversed (1)

khallow (566160) | more than 3 years ago | (#34074714)

Actually, it's "private ownership of resources or capital," you could very well argue a patent to be a resource. So, uh yeah... Anti-capitalist is (arguably) proper.

Even if we take this very strained interpretation of patent as a resource, you still have yet to explain why this indicates that Monsanto opposes in any way private ownership of patents?

Re:Monsanto will most likely get this reversed (1)

Pseudonym Authority (1591027) | more than 3 years ago | (#34075380)

They wouldn't, the US Government would be the uncapitalistic ones, and Monsanto would be the one's against them because of it.

Re:Monsanto will most likely get this reversed (3, Insightful)

Dachannien (617929) | more than 3 years ago | (#34072864)

The present case has nothing to do with Monsanto's products or patents. What's more, patenting genetically modified organisms is already settled case law.

http://en.wikipedia.org/wiki/Diamond_v._Chakrabarty [wikipedia.org]

Re:Monsanto will most likely get this reversed (1)

whitehaint (1883260) | more than 3 years ago | (#34072874)

Gee and stupid me I thought we were a nation that used CONSTITUTIONAL LAW, not case. If we were case law I could kill somebody and then point to an example of when someone else got off and be released myself.

Re:Monsanto will most likely get this reversed (3, Informative)

Dachannien (617929) | more than 3 years ago | (#34072950)

You apparently don't understand case law, then. Case law doesn't arise from a jury's finding of fact, because the jury doesn't make or interpret the law, they only decide the facts of the case. The judge, on the other hand, interprets the law and determines how it applies to the case at hand, and the precedents that judges make on their own court and lower courts is what forms the basis of case law.

If you find a case where evidence was excluded, for example, and point out that in your murder case, evidence should be excluded for the same reasons, you very well could get off, ultimately based on case law. But you can't just say that a jury acquitted Joe Sixpack of murder, so that's case law and you should be set free, because it's not case law.

In this case, the Supreme Court decided that GMOs were patentable (albeit by a 5-4 decision where none of the justices sitting on that case are part of the Court anymore). Since the judicial system is the arbiter of the law, and (generally) the courts respect the precedential decisions of their superior courts (the Supreme Court being the big daddy of them all), the only recourse for changing the law is to either convince the Supreme Court to change their mind or to legislate a change in the statute.

Re:Monsanto will most likely get this reversed (1)

shaitand (626655) | more than 3 years ago | (#34075592)

"Case law doesn't arise from a jury's finding of fact, because the jury doesn't make or interpret the law, they only decide the facts of the case."

That is incorrect. Juries were tasked with the duty of not only interpreting the law but if its application on a case by case basis serves justice. The courts first decided they didn't have an obligation to inform juries of these rights and obligations. Subsequently they gave themselves the authority to lie to juries and tell them the opposite. Finally the courts decided it was okay to abuse their powers and throw out jurors and juries if they discover the juries are even aware of their rights and obligations.

None of that changes that juries have not only the right but the obligation to act as the direct representation of the people and check the law, the enforcement of the law, and the courts to prevent government injustice one case at a time.

Re:Monsanto will most likely get this reversed (1)

MaskedSlacker (911878) | more than 3 years ago | (#34074328)

Gee and stupid me

No argument there.

Re:Monsanto will most likely get this reversed (1)

gtall (79522) | more than 3 years ago | (#34075400)

How would Monsanto do this? Cause the Justice Dept to backtrack? The only way that would happen is if the Obama administration wanted to commit suicide. Lean on Congress? Congress isn't the Justice Dept. All they can do is pass laws. Those can be taken to court, which Justice would surely do. In about 10 years, we might have a verdict. By that time, the cat will be out of the bag.

Re:Monsanto will most likely get this reversed (3, Interesting)

GooberToo (74388) | more than 3 years ago | (#34075878)

Genes exist completely independent of man's awareness of them or not. By legal definition they are a discovery, not invention. Again, by legal definition, they do not and never have qualified for patent status. As such, I've never understood why they have ever been allowed in the first place.

Imagine someone patenting oil, air, cotton, atoms, so on and so on. All of these are discoveries, not inventions. Literally, allowing gene patents is the exact same thing as being required to pay a royalty on breathing and yet everyone says that would be completely absurd - and yet, we are all holding our collective breaths here.

Now if only I could patent stupidity in government...

The Ministry of Silly Patents disagrees (0)

Anonymous Coward | more than 3 years ago | (#34072358)

Silliness is a striving and important economic factor. Won't someone think of the lawyers?

Re:The Ministry of Silly Patents disagrees (1)

hedwards (940851) | more than 3 years ago | (#34072714)

Just as long as they don't try to patent methods of perambulation, we should be fine.

Limits? (1)

DarkKnightRadick (268025) | more than 3 years ago | (#34072364)

Is this limited to human genes as the submission indicates, or will this apply to DNA/RNA in all species?

It's not like the DNA was already functioning (3, Funny)

RichMan (8097) | more than 3 years ago | (#34072376)

It's not like the DNA in-situ was already functioning perfectly. Opps, I guess it was.
So what did the pharma company "invent" to earn the patent?

Re:It's not like the DNA was already functioning (1)

biryokumaru (822262) | more than 3 years ago | (#34072404)

All inventions can be interpreted as discoveries of already existing natural phenomena. It's not like inventors come along and rewrite the laws of physics in our universe, people just string together things that work.

To that extent, observing that such and such DNA controls such and such process in the body is not conceptually distinct from discovering that such and such arrangement of black plastic and magic smoke forms an LM741.

Arguably, no one ever invents anything. People just pick some arbitrary level of complexity of a discovery and say "when the system is simpler than this, it's a discovery, when it's more complex, it's an invention." Or something like that.

Personally, I think deconstructing the human genome is somewhat more complex than designing an opamp, but hey, that's just me.

Re:It's not like the DNA was already functioning (5, Informative)

RsG (809189) | more than 3 years ago | (#34072456)

Except in patent law, there is a distinction between discovery and creation, at least in theory.

It is arbitrary where we choose to differentiate, you're right about that. But the line is drawn on the basis of observation versus utilization.

If I observe that objects of differing mass fall at the same velocity if air resistance is taken away from the equation, I cannot patent that. If I use this observation to determine that slowing decent via increasing surface area is possible, and create a parachute, I can patent that. Or I could if those examples weren't hundreds of years old and therefor covered under prior art.

Identifying genes, where they are and what they do, is observation. Tinkering with them is utilization.

Re:It's not like the DNA was already functioning (1)

houghi (78078) | more than 3 years ago | (#34073004)

Tinkering with them is utilization.

Well, I tinker a lot with (my) DNA. Does that mean I can put a patent on the process of, uh, tinkering?

Re:It's not like the DNA was already functioning (1)

MaskedSlacker (911878) | more than 3 years ago | (#34074350)

In this case, the tube sock is prior art.

Re:It's not like the DNA was already functioning (2, Informative)

Grond (15515) | more than 3 years ago | (#34073274)

Except in patent law, there is a distinction between discovery and creation, at least in theory.

No there isn't. "The term "invention" means invention or discovery." 35 USC 100(a) [cornell.edu] (emphasis added). "Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title." 35 USC 101 [cornell.edu] (emphasis added).

The line is drawn at the laws of nature, physical phenomena, and abstract ideas. Diamond v. Chakrabarty [findlaw.com] , 447 U. S. 303 (1980). Note, however, that those limitations are judge-made, and are not present in the statute.

As in Chakrabarty, the isolated genes claimed here are "a nonnaturally occurring manufacture or composition of matter - a product of human ingenuity having a distinctive name, character use." Isolated, purified genes do not occur in nature, and they have a distinctive character and use separate from the naturally occurring gene (e.g. performing genetic tests, as opposed to being by cells in vivo).

Re:It's not like the DNA was already functioning (2)

shaitand (626655) | more than 3 years ago | (#34075644)

"Isolated, purified genes do not occur in nature"

Neither do clean floors. But floors do exist in nature and so do genes therefore neither is patentable. The product or process used to clean the floor or to isolate and/or purify the gene might be the floor or gene itself is not.

And your process of isolating and/or purifying would need to be composed of methods that aren't being used to isolate and/or purify other genes otherwise it isn't non-obvious it is just a progressive improvement that any of your peers could have and would have made eventually if you weren't granted a patent.

Re:It's not like the DNA was already functioning (5, Insightful)

MartinSchou (1360093) | more than 3 years ago | (#34072464)

Personally, I think deconstructing the human genome is somewhat more complex than designing an opamp, but hey, that's just me.

It may be more complex, but that does not make it an invention.

Show me where I can find a ratchet wrench [wikipedia.org] , and I'll call it a discovery.
On the other hand, I can tell you where to find pretty much all the genes that are patented - in organisms that nature derived on its own.

Now - if, on the other hand, some company designs a gene, that does something that has never existed in nature - that'd be an invention. But moving genes from a fish into a plant isn't an invention, any more than adding "on the internet" onto already existing technology makes that worthy of being patented. Very neat, and you should probably be allowed a patent on the technology used for it.

Re:It's not like the DNA was already functioning (1)

Schadrach (1042952) | more than 3 years ago | (#34072804)

You need to be clear -- the process used to move the gene from the fish to the plant and getting it to enter the plant genome properly could very well be an invention, just not the sequence of genes themselves.

Re:It's not like the DNA was already functioning (1)

shaitand (626655) | more than 3 years ago | (#34075670)

Yes and the resulting fish or plant also wouldn't be covered by a patent for that process. It would not infringe to use good old breeding to replicate the fish.

Also could be an invention is key. If you are using standard processes being used by all experts in the field to accomplish the tasks then it is hardly patent worthy. Your peers would have arrived at the same solution if they worked toward the task. We shouldn't be giving patents for routine progression.

Re:It's not like the DNA was already functioning (1)

Trahloc (842734) | more than 3 years ago | (#34075758)

If only that were true. [slashdot.org]

Re:It's not like the DNA was already functioning (3, Insightful)

dAzED1 (33635) | more than 3 years ago | (#34072826)

moving minerals from a rock into a bar of iron which is forged in to a wrench is just just taking technology that already existed and moving it somewhere else.

That's silly. If you find a fish that glows in the dark, a bacteria that produces less harmful byproducts, and another bacteria that can eat crude oil - and you combine the three traits into a bacteria that glows in the dark, eats crude oil, and has less toxic byproducts...you've created something new. No less so than taking wheat that someone else invented, grinding it up, and combining it with water that someone else invented to make bread.

Re:It's not like the DNA was already functioning (1)

hvm2hvm (1208954) | more than 3 years ago | (#34073548)

someone invented wheat and water? i agree with the rest of your post but not that :P

Re:It's not like the DNA was already functioning (2, Insightful)

Anonymous Coward | more than 3 years ago | (#34074026)

No less so than taking wheat that someone else invented, grinding it up, and combining it with water that someone else invented to make bread.

And thank God we had patents!

Can you imagine where humanity would be if we hadn't been granted patent protection? Nobody would have had the incentive to invent bread. All that work: inventing agricultural methods, refining plant products, taming fire, finding the right combinations of everything... it just wouldn't have been worth it without the knowledge that the bread inventor would get his patent.

We'd all be sitting around forest fires, unwilling to make our own bread (because what would be the benefit without patents?), waiting for our meals to come to our mouths and starving to death. Humanity would stagnate and disappear.

You see, this is why patents are vital. Without patents, humans wouldn't create new things.

Re:It's not like the DNA was already functioning (1)

Haeleth (414428) | more than 3 years ago | (#34075876)

If you find a fish that glows in the dark, a bacteria that produces less harmful byproducts, and another bacteria that can eat crude oil - and you combine the three traits into a bacteria that glows in the dark, eats crude oil, and has less toxic byproducts...you've created something new.

And there is a reasonable case to be made that you should have some kind of IP rights in that bacterium.

But it's a big leap from there to say that you should be able to patent those genes, and prevent other people from making other new things using them. That's like patenting the iron instead of the wrench, to borrow your analogy.

Re:It's not like the DNA was already functioning (2, Interesting)

DRJlaw (946416) | more than 3 years ago | (#34072872)

Show me where I can find a ratchet wrench, and I'll call it a discovery.
On the other hand, I can tell you where to find pretty much all the genes that are patented - in organisms that nature derived on its own.

Now show me where you can find the isolated gene, the isolated cDNA, or other forms of the gene (apart from a the unisolated form appearing among 2.9 million base pairs of material) that make the isolate useful for diagnostic testing, genetic and proteomic research, and the like.

Nobody has patented the gene as part of a functioning human being (or animal, or natural organism), yet that is what you're claiming already existed. You still need to get from the natural form to the isolated form and explain how that is "discovery" rather than something made by man before you have much of an argument.

Geoffrey Landis may think that the argument is completely silly, but the "discovery" counterargument is equal rubbish. "Gene patents" do not claim the gene. They claim isolated sequences of DNA, cDNA, and the like that are only made by man. The district court ignored that fact, disregarding the chemistry and focusing upon the "information" encoded by the chemical, and of course also within the genome, to say that genes are not even eligible for patenting. Neither the Federal Circuit nor the Supreme Court are going to buy that argument.

Re:It's not like the DNA was already functioning (1)

Dachannien (617929) | more than 3 years ago | (#34072978)

Neither the Federal Circuit nor the Supreme Court are going to buy that argument.

What about Congress?

There are some pretty big political fish to fry in this case, what with it being related to breast cancer and all. Even if these patents escape unscathed from this lawsuit, they'd still make a pretty nice trophy on the wall of some Congresscritter, wouldn't they?

Re:It's not like the DNA was already functioning (1)

shaitand (626655) | more than 3 years ago | (#34075690)

So you go from a string such as 1 2 3 4 5 6 7 8 9 and isolate 4 and then claim you deserve a patent no on the process used to isolate 4 but on 4 itself?

Using your ideas every newly discovered prime is worthy of a patent.

Re:It's not like the DNA was already functioning (1)

Sique (173459) | more than 3 years ago | (#34072568)

There are genuine inventions. For instance the real numbers and specifically the completeness axiom is invented, not discovered. There are several ways to define completeness (Cauchy-series, Bolzano-Weierstrass, Dirichlet), and all of them are invented. The discovery is, that all of them are equivalent - if you set one of them as axiomatically true, you can prove the others.

Re:It's not like the DNA was already functioning (0)

Anonymous Coward | more than 3 years ago | (#34072684)

Ok, dude, this is an absolutely ridiculous argument.

Utilizing true mathematical laws, then finding the correct materials and arranging them appropriately in order to create something like a transistor, which did not exist (on our planet) at the time previously IN THAT FORM is totally different from discovering a currently existing material that DOES exist on the planet (probably in abundance) at that time.

The former example is 'creation' of a new "thing" from existing materials. The latter example is "discovery" (assuming that no one had ever seen or used that material before, which is highly unlikely). Think about it this way - coal is found in abundance in many many different places. If I were the first one to find coal on the west coast, why should I have the right to patent it and make it so that people who are on the east coast can't use it unless they pay me? What value have I given to coal in this case? None.

Now, if I find a process that makes it more useful, I should be able to patent that (very specific) process that makes coal more useful - but not the freely available material itself in the form that the earth produces it in naturally. I didn't make it, I didn't modify it, I just noticed it. No one should have to pay me for it.

Re:It's not like the DNA was already functioning (2, Insightful)

Patch86 (1465427) | more than 3 years ago | (#34072702)

IANAL and all that, but the /. beloved obviousness test should apply here.

For something to be patentable, it has to be non-obvious to a person working in the relevant field. The relevant field here is genetic biology. They are simply lifting the pattern straight out of the naturally occurring genome, without altering it.

It would seem that this would be an exceedingly obvious application of genetics- anyone with the appropriate (and probably patented) equipment can do it, no skill or ingenuity required.

Customised, altered genetic code is a different matter though.

Re:It's not like the DNA was already functioning (1)

biryokumaru (822262) | more than 3 years ago | (#34072816)

That's precisely what I'm getting at: "obviousness" is relative. You argue that the distinction between discovery and invention is "obviousness to someone in the field." That's a metric, sure, but still an arbitrary one.

What I mean is, there's a difference between something seeming like it "makes sense" like the obviousness rule, and an actual definable distinction. All I'm saying is that wherever you draw that line, it will always be arbitrary.

Re:It's not like the DNA was already functioning (1)

PitaBred (632671) | more than 3 years ago | (#34074254)

If someone in the same field would solve the same problem in a sufficiently similar way, it's obvious.

Re:It's not like the DNA was already functioning (2, Insightful)

biryokumaru (822262) | more than 3 years ago | (#34074286)

That's unfair to the inventor. The vast majority of new technologies often seem totally obvious in retrospect, but were unheard of before hand. You can't draw the line there, that definition is not explicit enough.

Re:It's not like the DNA was already functioning (1)

shaitand (626655) | more than 3 years ago | (#34075806)

Yes you can. Patents aren't about being fair to the inventor they are about promoting progress. If others working in the field would have eventually come with a solution as part of the normal course of doing their jobs then it in no way benefits society to grant a patent.

Re:It's not like the DNA was already functioning (1)

biryokumaru (822262) | more than 3 years ago | (#34075872)

If you fall in the camp that progress is a function of the times and not of individuals, than your system would grant no patents to anyone.

Re:It's not like the DNA was already functioning (1)

shaitand (626655) | more than 3 years ago | (#34075794)

Arbitrary? No its not. If patents were granted because 'you have a right to profit from your work' the line might be arbitrary. Is such and such worthy of the innate right to profit? But that isn't the case.

Patents are granted to reward the invention of something truly novel so that you and others like you will be inspired to continue trying to invent truly novel things.

When determining if something is patent worthy we are deciding not if you have some innate right to profit but whether creating an artificial limitation to others will ultimately benefit or harm mankind. If your 'invention' is something that would come about from the routine efforts of any competent individual in your field then it would have come about without patents.

We have iron bars on our back door. We also have a water dish for the cats and it doesn't fit between the bars. Initially we would open the iron bar door to fill the dish. It was not long before my wife discovered it was easier to fill a glass and use the glass to fill the dish.

Is this an invention/discovery? Dunno that depends on the arbitrary distinction you refer to. But we don't grant a patent for this not because it is or isn't an invention or discovery or because of the profit potential but because a patent wouldn't benefit society. This is something that people will develop to make their lives easier when filling water dishes and a patent would only hinder the process.

Re:It's not like the DNA was already functioning (1)

biryokumaru (822262) | more than 3 years ago | (#34075842)

Your rule seems like a good one. It's too bad we don't follow it.

Re:It's not like the DNA was already functioning (1)

ultranova (717540) | more than 3 years ago | (#34073492)

It's not like inventors come along and rewrite the laws of physics in our universe, people just string together things that work.

And those things they strung together didn't exist before they made them, so they invented them. They simply didn't invent the building blocks those things are made of.

To that extent, observing that such and such DNA controls such and such process in the body is not conceptually distinct from discovering that such and such arrangement of black plastic and magic smoke forms an LM741.

Actually, yes it is, in the exact same way as observing a painting and painting it are conceptually different tasks.

Now, if you go ahead and use your newfound knowledge to design a cure for cancer (or even acne), then that is an invention. And if someone else designs a different cure, then that too is an invention.

Inventions are methods - which may or may not involve a specific device - to achieve a certain effect, typically utilizing facts about nature. The facts they utilize can't themselves be inventions, because as you noted, the inventor did not design them.

People just pick some arbitrary level of complexity of a discovery and say "when the system is simpler than this, it's a discovery, when it's more complex, it's an invention."

When you're building something new, it's an invention, when you're observing something that existed before, it's an observation. What's arbitrary about this?

Re:It's not like the DNA was already functioning (1)

biryokumaru (822262) | more than 3 years ago | (#34073620)

IT's impossible to create something new. All you can do is tie together preexisting systems. The only argument can be whether tying them together makes it something new, which I don't agree with. It's just a discovery that some configuration of things performs a given function.

Re:It's not like the DNA was already functioning (1)

ultranova (717540) | more than 3 years ago | (#34073854)

IT's impossible to create something new. All you can do is tie together preexisting systems. The only argument can be whether tying them together makes it something new, which I don't agree with. It's just a discovery that some configuration of things performs a given function.

Did that configuration exist before you tied the component systems together? If not, it's new.

Also, every definition of a word that makes it fit either everything or nothing is useless.

Re:It's not like the DNA was already functioning (1)

biryokumaru (822262) | more than 3 years ago | (#34074728)

Did that configuration exist before you tied the component systems together?

How exactly do you propose we test this?

Re:It's not like the DNA was already functioning (0)

Anonymous Coward | more than 3 years ago | (#34075848)

To that extent, observing that such and such DNA controls such and such process in the body is not conceptually distinct from discovering that such and such arrangement of black plastic and magic smoke forms an LM741

Don't be ridiculous. The former observation just means you know a bit more about how the genome works. The latter invention leaves you with an LM741 which did not previously exist in the universe. That's the conceptual difference.

Personally, I think deconstructing the human genome is somewhat more complex than designing an opamp, but hey, that's just me.

Patents aren't rewards for doing something clever. They are incentives to produce tangible innovations.

It's pretty hard to calculate pi to 10 trillion digits, but if someone did that, should they be entitled to demand royalties from everyone who uses circles?

Re:It's not like the DNA was already functioning (4, Insightful)

RsG (809189) | more than 3 years ago | (#34072426)

That's my basic take on it as well.

Genetic modification and tailored organisms should be patentable. For example, if someone were to develop a useful modified single celled organism that processed sewage into biofuel, I could see patenting that as valid. It's engineering after all, just with genes instead of gears.

But discovery has never been patentable in any other field, and that's what's being discussed in TFA. You can't patent if there's prior art, can't patent something you've found rather than made, and can't patent abstract scientific knowledge. You cannot patent the lever or pulley, and in a mechanics to biology comparison, those are the best analogues to genes. Except it's even worse, because those two examples were developed by humans in the first place, so at least somebody long dead could claim ownership, whereas genes are strictly a natural occurrence.

Re:It's not like the DNA was already functioning (2, Insightful)

devent (1627873) | more than 3 years ago | (#34072610)

Except if the genes are already "discovered" by nature, which I read some story about bred pigs from a farm which had a gene from the breeding but Monsato patented the gene. The story is here http://www.globalresearch.ca/index.php?context=va&aid=2480 [globalresearch.ca]

Take patent application WO 2005/017204. This refers to pigs in which a certain gene sequence related to faster growth is detected. This is a variation on a natural occurring sequence -- Monsanto didn't invent it. It was first identified in mice and humans.

Than of course are the patent infringement issues if the neighbor of a farm using Monsanto's patented seeds and some seed are landing on his farm by wind. You can't tell the difference until you send the genome to a laboratory to test, and until then you are selling Monsanto's "intellectual property".

Re:It's not like the DNA was already functioning (1)

erroneus (253617) | more than 3 years ago | (#34072698)

Patents should never be on any living thing. This is especially true of Monsanto's plants. It has been shown that various forms of contamination from Monsanto's plants into crops of non-Monsanto varieties has led to tragic consequences. This will remain true until an exception for accidental contamination of living things is made in law or until patents on living things are eliminated entirely.

Re:It's not like the DNA was already functioning (1)

jvillain (546827) | more than 3 years ago | (#34072766)

What happens when your organism mutates?

Re:It's not like the DNA was already functioning (1)

houghi (78078) | more than 3 years ago | (#34072974)

Genetic modification and tailored organisms should be patentable.

We have been doing genetic modification for ages. It is called cross breeding. Should cows be patentable? Roses? Dogs? Mules? That last one changes the DNA and produces a specific non-self-reproducible species.

Just because it is done by somebody with a lab coat does not change it all that much.

Even if you created (new) life I would say there is prior art.

Re:It's not like the DNA was already functioning (0)

Anonymous Coward | more than 3 years ago | (#34073082)

As a mechanical engineer, I disagree with engineering patents too. The entire patent system needs to be abolished.

Re:It's not like the DNA was already functioning (1)

pnewhook (788591) | more than 3 years ago | (#34073816)

Completely agree. Patents have done NOTHING but hurt the creative process and stagnate development.

Re:It's not like the DNA was already functioning (1)

Solandri (704621) | more than 3 years ago | (#34074192)

But discovery has never been patentable in any other field, and that's what's being discussed in TFA. You can't patent if there's prior art, can't patent something you've found rather than made, and can't patent abstract scientific knowledge.

I'm curious how you'd square that stance with the invention of velcro [wikipedia.org] . It wasn't truly invented - the guy looked at the burrs which stuck to his clothing under a microscope and saw the hook and loop system. So he didn't think up the idea, nature had already invented it. But there was still a massive engineering effort required to replicate the idea synthetically, and the idea was mostly ignored by the textile industry until NASA showed the public that the stuff was actually pretty useful. If it had not been patentable, I'm doubtful anyone would have bothered doing the R&D and PR on it, and we would be without a very useful product today.

I'm holding out similar hope for nanotape [technologyreview.com] - sticky tape based on carbon nanotubes modeled after the microscopic hairs on gecko feet. Nature invented it, but it's proving to be an enormous engineering challenge to replicate it. Without the carrot of patents to spur on R&D, would so many researchers really be trying to make this stuff commercially viable?

Another thing to keep in mind that unlike copyrights which have been abused so much that their duration now spans two lifetimes, patents are only valid for ~20 years. While some industries (e.g. software) move quickly enough that this is intolerably long, for the vast majority of industries 20 years is about the right amount of time for the inventor/discoverer to do the R&D, market the idea, have the idea become popular, and make some money for a few years before the idea falls into the public domain. The harm from patenting stuff which probably shouldn't be patentable isn't as long-lived as with copyrights, so you don't have to err as much on the side of the public domain.

Re:It's not like the DNA was already functioning (1)

shaitand (626655) | more than 3 years ago | (#34075856)

"I'm holding out similar hope for nanotape [technologyreview.com] - sticky tape based on carbon nanotubes modeled after the microscopic hairs on gecko feet. Nature invented it, but it's proving to be an enormous engineering challenge to replicate it."

Simple the patent wouldn't be for the nanotape but the method you find of replicating it. The resulting tape or other methods of producing it would be fair game.

If someone else finds a way to take your already made nanotape and use it to make replicating nanotape easy... well tough titty said the kitty. The purpose of patents is to benefit society not to reward some innate right of the inventor to profit from his invention.

Re:It's not like the DNA was already functioning (0)

Anonymous Coward | more than 3 years ago | (#34072744)

they invented another way to subvert the patent system. Obviously that needs to be rewarded.

Re:It's not like the DNA was already functioning (2, Informative)

toppavak (943659) | more than 3 years ago | (#34072768)

Interestingly enough the first patents on this came from the University of Utah, Myriad is a licensee. That a public university receiving federal funding to support this research with a mandate to further scientific knowledge for the public benefit would pursue patents on such a fundamental discovery is itself a separate series of issues. Groups like Universities Allied for Essential Medicine [essentialmedicine.org] have been fighting from the academic side to ensure that Universities license technology responsibly and include terms in the license to guarantee that companies make the commercialized products as widely available as possible. This includes license terms like exemptions for non-profit and government institutions using the claimed technology for research- a right you would expect Universities to fight tooth and nail to preserve but sadly they often don't out of fear of turning off potential licensees. This is particularly true in a recession when every royalty dollar makes a huge impact.

Improvements at the edges? (0, Flamebait)

John Guilt (464909) | more than 3 years ago | (#34072382)

People to the left of me, or just more impatient (maybe with good reason) than I, are very frustrated by this administration. Well, here's something that I think a McCain administration wouldn't have even considered. Why this? Well, people aren't screaming in the streets over it, so maybe there's political space for it. Just wait until it's spontaneously decried by mobs of Monsanto-organised 'average Joes' as 'Kenyan Muslim socialists trying to destroy property rights' until even reasonable people feel the terms of the debate are so.

Re:Improvements at the edges? (1)

biryokumaru (822262) | more than 3 years ago | (#34072420)

First I was going to say that the Obama administration should hold no sway over the DoJ's actions, but then I saw this [slate.com] . I can scarcely imagine who would be running that place with McCain/Palin in control.

Re:Improvements at the edges? (1)

toppavak (943659) | more than 3 years ago | (#34072782)

The lead lawyer on the case, Dan Ravicher [pubpat.org] , self identifies as a radical conservative who believes that when government isn't incompetent it's corrupt. There are some fundamental issues that people at every end of the political spectrum can agree on.

Re:Improvements at the edges? (1)

ultranova (717540) | more than 3 years ago | (#34073668)

The lead lawyer on the case, Dan Ravicher, self identifies as a radical conservative who believes that when government isn't incompetent it's corrupt.

The Government is a large organization, which means that it's both incompetent and corrupt. Conservatives's problem is that they don't realize this extends to "private" corporations as well.

A Missed opportunity..... (2, Insightful)

rajeevrk (1278022) | more than 3 years ago | (#34072424)

Awww, now i cannot patent my own genome, and sue the world for infringing on my *Original* genetic composition.....

Seriously, It is so welcome to see a wee bit of sanity returning to this madhouse that is the current IPR regime....

RkR

Re:A Missed opportunity..... (2, Interesting)

AnonymousClown (1788472) | more than 3 years ago | (#34072522)

What popped in my head is an Environmental organization suing companies that patent genes on behalf of "Mother Nature" for infringement.

So for illustration purposes, some company patents the gene for Sickle Cell Anemia for whatever reason and starts making money off of it somehow (royalties from folks studying the disease?), organization sues them for infringement and uses the money to saves the whales or whatever.

This Just In From the "No Shit" Department (4, Interesting)

RobinEggs (1453925) | more than 3 years ago | (#34072452)

You can't legally patent something with 7 billion instances of prior art, nor should you be able to acquire a patent that all seven billion people in the world will involuntarily infringe ten million times a day.

Thank you, Justice Department, for another flash of the blindingly obvious.

Of course, if the DOJ has to spell this out, and the institutes that control our federal research dollars in health still can't see it, how does this bode for truly cooperative health research in the US? Not well, I'm guessing.

Re:This Just In From the "No Shit" Department (1)

Dachannien (617929) | more than 3 years ago | (#34072900)

Technically, you aren't infringing these kinds of patents unless you produce the isolated gene, since the claims specify "isolated".

In fact, that's what the entire argument hinges around: the patent holders say that the patent is valid because the claims require the gene to be in isolated form, which (as far as we know) doesn't happen in nature; while the plaintiffs say that isolation is a technicality meant to (but providing insufficient substance to) evade the prohibition on patenting naturally occurring phenomena.

Re:This Just In From the "No Shit" Department (1)

dgatwood (11270) | more than 3 years ago | (#34074122)

Except that such an argument is excrement. RNA isolates and transcribes a single gene or a short sequence of genes all the time. That's how protein coding works.

What they mean is that isolating the gene and transcribing it into human-readable form does not occur in nature. In effect, the only thing they're really doing is observing such a DNA fragment, which really stretches the boundaries of common sense as patents go.

Patenting genes is like (0)

Anonymous Coward | more than 3 years ago | (#34072462)

... Patenting the pancreas.

Not Patentable???? (1)

3seas (184403) | more than 3 years ago | (#34072550)

Ah... to much prior art?

Re:Not Patentable???? (0)

Anonymous Coward | more than 3 years ago | (#34072604)

to much prior art

Are you proposing a toast?

Why are gene patents issued in the first place? (1)

edibobb (113989) | more than 3 years ago | (#34072688)

Last time I checked, the USPTO is part of the U.S. Government. Can't they be reigned in and required to stop issuing patents on genes in the first place, or are they completely out of control?

Re:Why are gene patents issued in the first place? (0)

Anonymous Coward | more than 3 years ago | (#34072792)

Good luck convincing Congress to issue a law declaring all such gene patents invalid. That's not the sort of thing they're going to be convinced to do.

No money in it.

Plenty of money the other way though.

the concern shouldn't be non-GE organisms... (1)

dAzED1 (33635) | more than 3 years ago | (#34072780)

If you create a bacteria that can eat spilled crude oil and create happiness as a byproduct, then the only protection you have is patenting the genetic makeup of that bacteria. Yes, others then abused the idea and patented genes of organisms that had been around a long time. But to dismiss the whole idea? Are we saying we don't want genetically modified foods, or genetically modified animals that are specially bred to be used in lab experiments? Do you want that weighing on your conscious?

(for those not equipped with sarcasm detectors, find a friend to read that with you - it devolves a bit)

An exception should/could be made for GE bacteria created for industrial work. It wouldn't be hard to grant such an exception. Anything higher up than that (plant, or animal), should be unpatent-able.

About as obvious as it gets (1)

santiagodraco (1254708) | more than 3 years ago | (#34072906)

You cannot patent something you did not create, plain and simple.

Source gene's should not be patentable. Modified genes should.

how about a sex patent ? (0)

Anonymous Coward | more than 3 years ago | (#34072934)

Genetic engineering is just breeding, in an optimized way with a specific goal..
Really its not that much different as what nature does natural, see how good organisms eat BP oil pollution, without any help of bio engineers.

So i think its better to just patent Sex itself
As DNA also existed before companies like Monsanto's, i see no problem to patent Sex although it already does exist in nature.
Hereby i will also call wanking results as open-source, on which you may freely experiment.
However by now i declare sex as a copyrighted act; so to all the girls out there reading this blog (i guess zero) you can leave me a note for some copyright acts.

On a side note, dear porn industry, since you violate my copyrights;
I see you in court unless you pay me about 70% of each sold DVD / CDROM or other media device.
Also for any other movie industry referring to the act of sex, is unwanted commercial advertisement the profits of that belong to me; by now.

Re:how about a sex patent ? (1)

dgatwood (11270) | more than 3 years ago | (#34074130)

Genetic engineering is just breeding, in an optimized way with a specific goal..

Sure. My corn field has sex with frogs all the time. Doesn't everybody's?

At last (0)

Anonymous Coward | more than 3 years ago | (#34073158)

Change I can believe in - lol.

Its about time people can't simply go "tree leaves change color in the fall" and get paid for it - making people at work actually do work will help our economy more than any of the stimulus crap..

Genetic Patents Are Vital (1)

NicknamesAreStupid (1040118) | more than 3 years ago | (#34073294)

There are no incentives as powerful as the lustful greed for controlling the future of humanity and the apocalyptic fear that someone might succeed. A patent is the only thing that enables both incentives in an easy-to-use online application. True, they are only good for 20 years and it now takes up to eight years to get one issued. Still, should we deny ourselves the possibility of total global control of humanity, creation of gods and monsters, and guaranteed employment for patent agents, lawyers, and biotech megalomaniacs? After all, unemployment is 10%!

royalites (0)

Anonymous Coward | more than 3 years ago | (#34073426)

I would LOVE to see the day a child is born with patented genes and has to pay royalties unless they kill themselves :P

Surprising (2, Interesting)

magus_melchior (262681) | more than 3 years ago | (#34073736)

What's more surprising to me isn't that the DoJ issued this amicus curiae brief, it's that they issued this even with former RIAA lawyers in its top echelons. If their top lawyers believe that companies should be "free" to control information, then they would no doubt have a problem with this brief.

On the other hand(s), they may not have a problem with freeing genes from patents, they may not personally believe what their former employers believe and were merely doing their jobs (which is pretty common among lawyers-- they turn into stalwart defenders of the worst ideas because that's how the adversarial legal system works), or they don't see the philosophical connection between strict control of copyright and strict control of any other "license" (for lack of a better term) on information.

Please kill software patents next (1)

EmperorOfCanada (1332175) | more than 3 years ago | (#34073806)

Software patents should be the next target of the DoJ. If you can tell me how a one click patent, or other crap obvious patents, are for the general good then please reply.

A key patent rule is non-obvious. I haven't heard of a software patent in years that 8 out of 10 developers wouldn't invent given the same problem to solve. Also prior-art needs to be able to kill patents in an afternoon. A huge amount of this stuff we have all seen from the 90's and yet it is getting patents from applications in like 2008.

how about copyright? (1)

smoothnorman (1670542) | more than 3 years ago | (#34074320)

genes are a sequence, text is a sequence, therefore how about applying copyright laws (which we all know and 'love') to them? (next up: software can be represented as a sequence ....)

In other news... (1)

avtchillsboro (986655) | more than 3 years ago | (#34074672)

...sunshine should be warm, water wet, & air not smell bad.

Seriously, how can naturally occurring genes be patentable? If naturally occurring genes CAN be patentable, then couldn't natural life processes amount to patent infringement? Ridiculous!

Woot! (1)

meerling (1487879) | more than 3 years ago | (#34074848)

Someone finally remembered to turn on their brain at the DoJ !

So, we'll patent their blood. (1)

GrantRobertson (973370) | more than 3 years ago | (#34075816)

From TFA:

The issue of gene patents has long been a controversial and emotional one. Opponents say that genes are products of nature, not inventions, and should be the common heritage of mankind. They say that locking up basic genetic information in patents actually impedes medical progress. Proponents say genes isolated from the body are chemicals that are different from those found in the body and therefore are eligible for patents.

How would these "proponents" like it if someone took a sample of their blood and then claimed that since it was separate from their body that it could be patented, thus preventing them from ever using any of their own blood again without paying a licensing fee?

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