Beta

Slashdot: News for Nerds

×

Welcome to the Slashdot Beta site -- learn more here. Use the link in the footer or click here to return to the Classic version of Slashdot.

Thank you!

Before you choose to head back to the Classic look of the site, we'd appreciate it if you share your thoughts on the Beta; your feedback is what drives our ongoing development.

Beta is different and we value you taking the time to try it out. Please take a look at the changes we've made in Beta and  learn more about it. Thanks for reading, and for making the site better!

US Court Sides With Gene Patents

timothy posted about 2 years ago | from the much-prefer-gene-siskells-to-gene-patents dept.

Biotech 255

ananyo writes "Gene patents have been upheld in a landmark case over two genes associated with hereditary forms of breast and ovarian cancer. The lawsuit against Myriad Genetics, a diagnostic company based in Salt Lake City, Utah, that holds patents on the genes BRCA1 and BRCA2, has bounced from court to court since 2010. In a 2-1 decision today, a federal appeals court reaffirmed their latest decision that genes represent patent-eligible matter. As noted before on Slashdot, the case will have major implications for cancer researchers, patients and drug makers."

cancel ×

255 comments

Smoking Crack (5, Insightful)

OrangeTide (124937) | about 2 years ago | (#41017753)

While Judge Koh suggests Apple is “smoking crack” in another case, I'm going to suggest that judges are smoking crack here.

What other natural phenomenon can I patent? The shape of a quartz crystal perhaps?

Re:Smoking Crack (1)

amicusNYCL (1538833) | about 2 years ago | (#41018009)

I bet you can patent a brain wave. No seriously, I bet you could convince a judge that brain waves are "patentable material", especially if you're using some weird-sounding stimulus to influence them.

Re:Smoking Crack (2, Insightful)

X0563511 (793323) | about 2 years ago | (#41018587)

I can see it now: emotional patents.

Re:Smoking Crack (3, Insightful)

Forty Two Tenfold (1134125) | about 2 years ago | (#41018733)

It's sad when cynicism replaces outrage.

Re:Smoking Crack (0)

Anonymous Coward | about 2 years ago | (#41018067)

Seriously?

A fake cease and desist letter from Yes Men, demanding that the Judge pay one cent Royalty to the said Company for every second for the rest of his life could jolt him awake.

Re:Smoking Crack (2)

X0563511 (793323) | about 2 years ago | (#41018599)

Well, given that there are approximately 50 trillion cells in the average human, I think you could get away with some MPAA/RIAA numbers to use, here...

Re:Smoking Crack (5, Funny)

houghi (78078) | about 2 years ago | (#41018177)

What other natural phenomenon can I patent? The shape of a quartz crystal perhaps?

If you have quarts with rounded corners, I have some bad news for you.

Re:Smoking Crack (5, Insightful)

Anonymous Coward | about 2 years ago | (#41018235)

It must be the same crack that causes an opposite ruling of the one the Supreme Court ruled on a few months ago.

But the real problem here is that a judicial system designed to interpret criminal law is not designed to interpret scientific merit or results. The entire premise of the system is faulty. Patents eligibility should not be decided by criminal courts, nor should they be processed as if the only merit for approval is that the legal forms and fees are paid.

Re:Smoking Crack (0)

ColdWetDog (752185) | about 2 years ago | (#41018433)

Patents are evaluated in a civil court, not criminal. Until that concept is quite clear in your mind, it's best that you refrain from worrying about some of the finer points of the issue.

Re:Smoking Crack (1)

X0563511 (793323) | about 2 years ago | (#41018611)

Federal court of appeals...

Civil court? What?

Re:Smoking Crack (2)

DragonTHC (208439) | about 2 years ago | (#41018299)

I'm going to patent water!

Re:Smoking Crack or what the hey (2)

WillAffleckUW (858324) | about 2 years ago | (#41018603)

I'm going to patent water!

Too late, I already patented Hydrogen and Oxygen.

You owe me royalties.

Oh, and stop breathing.

Re:Smoking Crack (3, Interesting)

AmberBlackCat (829689) | about 2 years ago | (#41018427)

And what happens if you reproduce with somebody who has these genes? Will they be able to sue you over your children, the way Monsanto sues people over corn?

Re:Smoking Crack (1)

DriedClexler (814907) | about 2 years ago | (#41018517)

Will they be able to sue you over your children, the way Monsanto sues people over corn?

Um, if you find children growing out of you due to accidental scattering of some else's "seed", you've got much bigger problems than a patent lawsuit...

Re:Smoking Crack (2)

Jane Q. Public (1010737) | about 2 years ago | (#41018507)

"What other natural phenomenon can I patent? The shape of a quartz crystal perhaps?"

That's what makes this ruling so bizarre -- and likely to be overturned. The Supreme Court has ALREADY ruled that you can't patent "elements of nature".

Re:Smoking Crack (0)

Anonymous Coward | about 2 years ago | (#41018541)

What other natural phenomenon can I patent? The shape of a quartz crystal perhaps?

Only if it's black, rectangular, and with round corners.

Re:Smoking Crack (1)

slick7 (1703596) | about 2 years ago | (#41018701)

While Judge Koh suggests Apple is “smoking crack” in another case, I'm going to suggest that judges are smoking crack here.

What other natural phenomenon can I patent? The shape of a quartz crystal perhaps?

It just goes to show that the separation of corporate and State is needed more now than ever before.

Of Course, This is Insanity. (2, Interesting)

Jeremiah Cornelius (137) | about 2 years ago | (#41017755)

Along this course of "logic" - you will someday be paying royalties on genes that comprise your own personal traits.

Re:Of Course, This is Insanity. (4, Insightful)

jd2112 (1535857) | about 2 years ago | (#41017953)

On the other hand if you have medical issues related to patented genes perhaps you could sue the patent holder.

Re:Of Course, This is Insanity. (0)

Anonymous Coward | about 2 years ago | (#41018021)

On the other hand if you have medical issues related to patented genes perhaps you could sue the patent holder.

Or be forced to obtain a license from a healthy person just to heal a sick person.

What's next, annual license or royalty fees on flu vaccines? How far are they going to take this bullshit?

Please, please let the God of Irony play a well-deserved hand and force this moron judge to personally have to pay to save his own life one day...I'd pay for those ringside seats.

Re:Of Course, This is Insanity. (3, Insightful)

sjames (1099) | about 2 years ago | (#41017973)

Likewise, if THEIR genes are causing a woman's breast cancer, they will naturally be held responsible, right? After all, if MY dog bites someone, I get the medical bills.

Re:Of Course, This is Insanity. (1)

Anonymous Coward | about 2 years ago | (#41018081)

Along this course of "logic" - you will someday be paying royalties on genes that comprise your own personal traits.

FYI. Farmers are already being sued out of business for having plants that naturally obtained copywrited genes. Just search for monsanto.

FFS (1)

Anonymous Coward | about 2 years ago | (#41018513)

FYI. Farmers are already being sued out of business for having plants that naturally obtained copywrited genes. Just search for monsanto.

For the love of all that's holy... First of all, it's copyRIGHT, not copyWRITE... as in the RIGHT to COPY. How friggin' hard is that? Secondly, Monsanto uses patents in their extortion schemes, not copyright... and really, if you even remotely understood the difference, you should be able to figure out which it was in about a tenth of a second.

Sigh... there's Lincoln quote which seems exceedingly appropriate right now.

Re:Of Course, This is Insanity. (1)

Tanktalus (794810) | about 2 years ago | (#41018095)

Oh, no, not that at all. No, you'll only have to pay royalties on duplicating their patented work.

You know, like procreating.

Or cell division.

Re:Of Course, This is Insanity. (0)

Anonymous Coward | about 2 years ago | (#41018291)

That's the whole idea.

Yep... (-1)

Anonymous Coward | about 2 years ago | (#41017759)

Not surprising. Anyone who thought they were going to rule otherwise was deluded. Just like on the issue of software patents being abolished. Freetards are so naive.

Re:Yep... (2)

Gideon Fubar (833343) | about 2 years ago | (#41018373)

But on the other side of things, it guarantees that America's biotechnology industry will stagnate and China's will boom. It's just a consequence of the Free Market, so that's ok right?

The sky is falling...not. (5, Interesting)

wermske (1781984) | about 2 years ago | (#41017769)

US Supreme Court precedent still holds that patents are invalid where they reiterate the 'laws of nature". This lower court ruling simply found, in another hearing of the case, that the two patents held by Myriad fail to meet the reiteration test. The lower court was directed to consider this rule as a guiding principle. They have done so. This does not preclude further appeal; however, given the very narrow nature of the ruling it is unlikely to have "major implications for cancer researchers, patients and drug makers."

Certainly, it contributes to the body of common law; however, I don't believe there is deep policy significance in this latest ruling. The beauty of law is its ambiguity.

Re:The sky is falling...not. (5, Insightful)

LordLucless (582312) | about 2 years ago | (#41017881)

The beauty of law is its ambiguity.

Certainly, for those who make six figures exploiting such ambiguity it is.
For people who actually just want to know whether a given action makes the liable or not, the ambiguity of the law is contrary to its fundamental purpose.

Re:The sky is falling...not. (0)

Anonymous Coward | about 2 years ago | (#41018077)

No, it's good for everyone because it allows leeway.

Re:The sky is falling...not. (0)

artor3 (1344997) | about 2 years ago | (#41018109)

Ambiguity helps to prevent exploits. It's impossible to fashion a law that truly considers every possible circumstance. Giving judges the ability to employ some common sense is a good thing. If you force judges to act like computers, you're going to run into a lot of problems.

And that's assuming it's even possible to craft an unambiguous law. Human language isn't particularly well suited to that task.

Re:The sky is falling...not. (4, Insightful)

LordLucless (582312) | about 2 years ago | (#41018179)

Ambiguity helps to prevent exploits.

Or allow them. It cuts both ways.

And that's assuming it's even possible to craft an unambiguous law. Human language isn't particularly well suited to that task.

And in that case, the ambiguity is an unfortunate side-effect, not "the beauty of the law"

An ambiguous law almost inevitably leads to selective enforcement. This is a bad thing, because it puts power in the hands of the interpreters of the law, rather than the law itself.

Re:The sky is falling...not. (1)

X0563511 (793323) | about 2 years ago | (#41018661)

Apparently French was used (still is?) for international treaties... because it is exceedingly precise. Now, I don't speak French so I can't actually confirm this...

Re:The sky is falling...not. (0)

Anonymous Coward | about 2 years ago | (#41018201)

I think the GP is referring to a free society (where all things are free unless specified to not be free), whereas you refer to a totalitarian state (where all things are not free, unless specified that they are free.)

Re:The sky is falling...not. (1)

slippyblade (962288) | about 2 years ago | (#41018211)

Assuming one has the cash to fight said exploit. Because, most likely, the exploit is being manipulated by deep pockets.

Re:The sky is falling...not. (1)

TFAFalcon (1839122) | about 2 years ago | (#41018285)

It only prevents exploits for people who can't afford a horde of lawyers.

Re:The sky is falling...not. (1)

X0563511 (793323) | about 2 years ago | (#41018641)

Ambiguity helps to prevent exploits. It's impossible to fashion a law that truly considers every possible circumstance. Giving judges the ability to employ some common sense is a good thing.

That would be great, except for Eastern Texas and friends.

Re:The sky is falling...not. (1)

cpu6502 (1960974) | about 2 years ago | (#41017985)

I don't see how they can patent something they didn't invent. Breast cancer's been around longer than this company. Oh well. At least a patent only last 7 years (or at least until some idiot Congressman like Sonny Bono extends it to 105).

Re:The sky is falling...not. (0)

Anonymous Coward | about 2 years ago | (#41018015)

Patents last for 20 years, not 7. I'm also wondering if this patent is on the gene itself, or a specific method of testing for the gene, which is a subtle but important difference.

Re:The sky is falling...not. (2)

bmo (77928) | about 2 years ago | (#41018053)

It's on the gene itself.

That's what makes this so mind-blowingly stupid. And to have the judge say that this is not a naturally occurring molecule (wait, people *manufacture* cancer genes?) sets bag of shit on the steps of the courthouse alight.

--
BMO

Re:The sky is falling...not. (1)

drcln (98574) | about 2 years ago | (#41018529)

It's on the gene itself.

That's what makes this so mind-blowingly stupid. And to have the judge say that this is not a naturally occurring molecule (wait, people *manufacture* cancer genes?) sets bag of shit on the steps of the courthouse alight.

Actually, the patent claims cover an isolated chemical reagent comprised of nucleic acids having a sequence that corresponds to a sequence found in the gene, not the gene itself. The claim only covers molecules that have been either isolated or made. Perhaps you have heard of PCR. The product of PCR generally does not occur in that form in nature. It is a manufactured nucleic acid. It is not a naturally occurring gene. The claim does not cover any gene as it naturally occurs in a person.

Re:The sky is falling...not. (1)

WillAffleckUW (858324) | about 2 years ago | (#41018657)

Actually, the patent claims cover an isolated chemical reagent comprised of nucleic acids having a sequence that corresponds to a sequence found in the gene, not the gene itself. The claim only covers molecules that have been either isolated or made. Perhaps you have heard of PCR. The product of PCR generally does not occur in that form in nature. It is a manufactured nucleic acid. It is not a naturally occurring gene. The claim does not cover any gene as it naturally occurs in a person.

"generally does not occur in that form in nature"

which is lawyer talk for Does Occur That Way In Nature but you don't want to admit it happens.

Look, siRNA, miRNA, mRNA etc all "modify" genes so they produce things that don't "generally" occur. They ADAPT to changes. It's how our genes encode shuffle and modify based on environmental conditions.

Just because the dice don't always roll snake eyes doesn't mean dice can't roll snake eyes. They do.

And, if you have a gene in the dice that incorporates snake DNA mods, they'll look pretty cool.

... in the US (3, Interesting)

phorm (591458) | about 2 years ago | (#41017775)

Hopefully in the rest of the world, things will be more sane.

Re:... in the US (3, Informative)

Desler (1608317) | about 2 years ago | (#41017787)

Don't be so sure. [genengnews.com]

Re:... in the US (1)

phorm (591458) | about 2 years ago | (#41017905)

I wonder if that's meant to cover things like this [slashdot.org] ?

Gene Patents (0)

Anonymous Coward | about 2 years ago | (#41017785)

Gene Patents is one hell of a guy, I'd side with him too.

Re:Gene Patents (4, Funny)

neminem (561346) | about 2 years ago | (#41017861)

Bill Posters is innocent!

Re:Gene Patents (0)

Anonymous Coward | about 2 years ago | (#41018069)

But Howard Johnson is right!

Hmm... (5, Funny)

Antony T Curtis (89990) | about 2 years ago | (#41017789)

With these patents, does that mean that they own certain types of cancer?

If so, then they should take responsibility of their property and stop being irresponsible and infecting people with their property.

As remedy, I suggest that they fully pay for the treatment to remove their property from their victims and for the stress caused by their carelessness.

Re:Hmm... (2)

Desler (1608317) | about 2 years ago | (#41017805)

With these patents, does that mean that they own certain types of cancer?

No.

silly wabbit... (1)

zlives (2009072) | about 2 years ago | (#41017853)

not sure if they promised a return/refund policy with their product.

Re:Hmm... (1)

Ryanrule (1657199) | about 2 years ago | (#41018017)

Hell, think about the LIABILITY.

Re:Hmm... (0)

Anonymous Coward | about 2 years ago | (#41018093)

No, the people with the cancer are infringing and owe the company $$$ for each matching segment of DNA!

Re:Hmm... (1)

six11 (579) | about 2 years ago | (#41018643)

Actually, if that reasoning were to apply elsewhere, Monstanto might actually have to take responsibility for infecting neighboring non-GMO fields with its seed. I agree with one of the posters below... the people with cancer would somehow end up owing the company money.

I think I'll start a kickstarter fund to set up a colony on Mars, away from all this lunacy.

Wait, what? (5, Insightful)

bmo (77928) | about 2 years ago | (#41017801)

But according to the latest judges, the patents Myriad holds do not reiterate these laws. In the courtâ(TM)s decision, Judge Alan Lourie writes: âoeEach of the claimed molecules represents a nonnaturally occurring composition of matter."

Like hell they are. This judge needs to go back to HS biology.

--
BMO

Oh come on... (0, Offtopic)

bmo (77928) | about 2 years ago | (#41017829)

Imagine, for the sake of argument that what follows is greentexting.

>go to tech related site like slashdot
>no support for UTF8
>2012

Oh the ironing.

--
BMO

Re:Wait, what? (2)

zlives (2009072) | about 2 years ago | (#41017939)

quick some one patent the higgs before LHC claims they own patent cause they discovered it... that will get us in some heavy shit

Re:Wait, what? (5, Informative)

tragedy (27079) | about 2 years ago | (#41018031)

Regarding Judge Lourie from http://www.cafc.uscourts.gov/judges/alan-d-lourie-circuit-judge.html [uscourts.gov] :

Before being appointed to the court, Judge Lourie had been President of the Philadelphia Patent Law Association, a member of the Board of Directors of the American Intellectual Property Law Association (formerly American Patent Law Association), treasurer of the Association of Corporate Patent Counsel, and a member of the board of directors of the Intellectual Property Owners Association. He was also Vice Chairman of the Industry Functional Advisory Committee on Intellectual Property Rights for Trade Policy Matters (IFAC 3) for the Department of Commerce and the Office of the U.S. Trade Representative. He was a member of the U.S. delegation to the Diplomatic Conference on the Revision of the Paris Convention for the Protection of Industrial Property, held in Geneva in October and November 1982, and in March 1984. He was chairman of the Patent Committee of the Law Section of the Pharmaceutical Manufacturers Association from 1980 to 1985.

Judge Lourie was awarded the Jefferson Medal of the New Jersey Intellectual Property Law Association for extraordinary contributions to the field of intellectual property law in 1998; was a recipient of the Intellectual Property Owners Education Foundation Distinguished Intellectual Property Professional Award for extraordinary leadership in the intellectual property community and a lifetime commitment to invention and innovation in 2008; was a recipient of the Philadelphia Intellectual Property Law Association’s Award for outstanding IP achievement in 2010; was a recipient of the Boston Patent Law Association’s Distinguished Public Service Award in 2011...

Good to know that these cases go to truly impartial judges.

Re:Wait, what? (-1, Troll)

Desler (1608317) | about 2 years ago | (#41018085)

Because someone anti-patent would be "impartial"?

Re:Wait, what? (5, Informative)

hondo77 (324058) | about 2 years ago | (#41018143)

Because someone anti-patent would be "impartial"?

No. Someone with no ties to the IP biz would be impartial, smartass.

Re:Wait, what? (2)

tragedy (27079) | about 2 years ago | (#41018265)

Because someone who is a member of a bunch of organizations whose function is essentially to pat each other on the back for expanding the scope of intellectual property clearly isn't impartial.

Re:Wait, what? (1, Flamebait)

westlake (615356) | about 2 years ago | (#41018711)

So you are telling us that a judge who specializes in patent law has over thirty years experience in patent law?

Not to mention:

Born in Boston, Massachusetts, on January 13, 1935, Judge Lourie received his Bachelorâ(TM)s degree from Harvard University (1956), his Masterâ(TM)s degree in organic chemistry from the University of Wisconsin (1958), and his Ph.D. in chemistry from the University of Pennsylvania (1965). He received his J.D. degree from Temple University in 1970.

Re:Wait, what? (0)

Anonymous Coward | about 2 years ago | (#41018089)

But according to the latest judges, the patents Myriad holds do not reiterate these laws. In the courtâ(TM)s decision, Judge Alan Lourie writes: âoeEach of the claimed molecules represents a nonnaturally occurring composition of matter."

Like hell they are. This judge needs to go back to HS biology.

--
BMO

Indeed. But I'm not sure how the hell we ever expected a judge to rule on something like this with any level of accuracy or understanding.

Given their track record for understanding and ruling accurately on highly technical matters (the last time a judge was asked about "cookies", his response was "you mean oatmeal or peanut butter?"), I'd say that morbid ignorance behind the bench has been a pre-existing condition for a very long time.

Re:Wait, what? (0)

Anonymous Coward | about 2 years ago | (#41018365)

In the court's decision, Judge Alan Lourie writes: "Each of the claimed molecules represents a nonnaturally occurring composition of matter."

Like hell they are. This judge needs to go back to HS biology.

He's right, the molecules are made by God [arstechnica.com]

Big Pharma wins again (2)

danbuter (2019760) | about 2 years ago | (#41017833)

At least in the US, big pharmaceutical company profits are far more important than something as silly as the health of the general population.

Re:Big Pharma wins again (3, Funny)

Un pobre guey (593801) | about 2 years ago | (#41017879)

Patenting a gene because you made a detection kit for it is like invading Iraq because Saudis blew up some of your buildings.

Oops! Sorry...

Re:Big Pharma wins again (0)

Anonymous Coward | about 2 years ago | (#41017951)

This is very good news for pharmaceutical companies, as they are free make money to licensing their patents on parts of the human biology, and take violators to court.

It may not be so good news for cancer researchers and cancer patients, as it probably will slow or even halt progress in some areas of cancer research.

But hey, it's not all bad. Corporations are people too, you know.

And they employ people, lots of them!

Some of whom may get cancer.

But they may have health care insurance through their place of employment!

Which still can't give them non-existent treatments that haven't been invented because of these patents.

OK, I got nothing.

Re:Big Pharma wins again (2, Interesting)

west (39918) | about 2 years ago | (#41018025)

Do you mean that it's far better that everybody go without this discovery forever, than a large number of people (who can afford it, naturally) benefit during the patent period, and then everybody benefit from it afterwards?

Or would you prefer to believe that in the absence of commercial medical research, government, which by their very nature don't tend to make risky investments that are unlikely to payoff, will miraculously somehow start funding expensive medical research?

I'm a Canadian, and I like my cheap medical care. But it would be the height of hypocrisy to ignore the fact that almost all the medical developments that are likely to keep me healthy into old age wouldn't exist if there wasn't the good old greed of the American medical system. Of course, there are some notable exceptions, but in general, if someone isn't going to make money from it (with the significant chance of a lot of money), then people aren't going to take the risk of expensive research with high probability of failure.

The choice for genetic research isn't between expensive vs. cheap. It's between expensive now + cheap later vs. not available at all.

Re:Big Pharma wins again (5, Insightful)

Grave (8234) | about 2 years ago | (#41018153)

Scientists very rarely do any of the amazingly awesome stuff they do because they want tons of money. The people who fund the scientists only do so because they expect to make tons of money off of them. This is a very important distinction. Just like politics, if we remove money from the equation, a lot of good can happen. Medical and scientific progress shouldn't depend on the ability to turn a profit.

Re:Big Pharma wins again (0)

Anonymous Coward | about 2 years ago | (#41018673)

...government, which by their very nature don't tend to make risky investments that are unlikely to payoff...

I'd say there are any number of examples, from Lewis & Clark's expedition on through to NASA, as well countless others which received less publicity, even the medium you used to post those words, that would stand as refutation of them.

Re:Big Pharma wins again (0)

Anonymous Coward | about 2 years ago | (#41018033)

It's not only the big pharmas that win.

Who do you think they pay taxes to? A lot of US's assets right now are just this, Imaginary Property.

Yay! (1)

Un pobre guey (593801) | about 2 years ago | (#41017855)

Hooray! Now I can patent a gene that arose spontaneously in nature because I invented a detection kit based on standard published techniques I learned in grad school! Now if I could only patent an entire friggin' human chromosome... But which one, which one would be best...

time to start suing the owner(s) of these patents (0)

Anonymous Coward | about 2 years ago | (#41017899)

For causing harm.

Since the owners are now causing cancer, it would seem that a lawsuit over the cleanup should be about 2 million per patient.

Any delays should cause triple damages.

From the rest of the world (0)

Anonymous Coward | about 2 years ago | (#41017911)

Please, Please, Please, Please don't export this, like you do with most of your iditotic, broken laws. In this game, the very survival of the human race is at risk.

Re:From the rest of the world (2)

Desler (1608317) | about 2 years ago | (#41018145)

Patenting of genes in the EU is already allowed [genengnews.com] .

Re:From the rest of the world (1)

Un pobre guey (593801) | about 2 years ago | (#41018669)

Ha! Suckers.

promising future treatment (5, Informative)

Trepidity (597) | about 2 years ago | (#41017913)

Here's a fuller explanation from the opinion (not that I agree with it). They appear to be making a distinction between isolated DNA, which is allegedly nonnaturally processed in a way that renders it patent-eligible, and "native DNA" as it exists inside the human body, which is a natural occurring composition of matter.

It is undisputed that Myriad’s claimed isolated DNAs exist in a distinctive chemical form—as distinctive chemical molecules—from DNAs in the human body, i.e., native DNA. Natural DNA exists in the body as one of forty-six large, contiguous DNA molecules. Each of those DNA molecules is condensed and intertwined with various proteins, including histones, to form a complex tertiary structure known as chromatin that makes up a larger structural complex, a chromosome. See supra, Figure 3. Inside living cells, the chromosomes are further encapsulated within a series of membranes and suspended in a complex intracellular milieu.

Isolated DNA, in contrast, is a free-standing portion of a larger, natural DNA molecule. Isolated DNA has been cleaved (i.e., had covalent bonds in its backbone chemically severed) or synthesized to consist of just a fraction of a naturally occurring DNA molecule. For example, the BRCA1 gene in its native state resides on chromosome 17, a DNA molecule of around eighty million nucleotides. Similarly, BRCA2 in its native state is located on chromosome 13, a DNA of approximately 114 million nucleotides. In contrast, isolated BRCA1 and BRCA2, with introns, each consists of just 80,000 or so nucleotides. And without introns, BRCA2 shrinks to approximately 10,200 nucleotides and BRCA1 to just around 5,500 nucleotides. Furthermore, claims 5 and 6 of the ’282 patent cover isolated DNAs, e.g., primers or probes, having as few as fifteen nucleotides of a BRCA sequence. Accordingly, BRCA1 and BRCA2 in their isolated states are different molecules from DNA that exists in the body; isolated DNA results from human intervention to cleave or synthesize a discrete portion of a native chromosomal DNA, imparting on that isolated DNA a distinctive chemical identity as compared to native DNA.

As the above description indicates, isolated DNA is not just purified DNA. Purification makes pure what was the same material, but was combined, or contaminated, with other materials. Although isolated DNA is removed from its native cellular and chromosomal environment, it has also been manipulated chemically so as to produce a molecule that is markedly different from that which exists in the body. Accordingly, this is not a situation, as in Parke-Davis & Co. v. H.K. Mulford Co., in which purification of adrenaline resulted in the identical molecule, albeit being “for every practical purpose a new thing commercially and therapeutically.” 189 F. 95, 103 (C.C.S.D.N.Y. 1911). Judge Learned Hand’s opinion for the district court in that oft-cited case held the purified “Adrenalin” to be patent-eligible subject matter. Id. The In re Marden cases are similarly inapposite, directed as they are to the patent ineligibility of purified natural elements—ductile uranium, 47 F.2d 957 (CCPA 1931), and vanadium, 47 F.2d 958 (CCPA 1931)—that are inherently ductile in purified form. While purified natural products thus may or may not qualify for patent under 101, the isolated DNAs of the present patents constitute an a fortiori situation, where they are not only purified; they are different from the natural products in “name, character, and use.” Chakrabarty, 447 U.S. at 309-10.11.

Re:promising future treatment (1)

Trepidity (597) | about 2 years ago | (#41017937)

(Reply to self.)

Dammit, wrong subject. I was going to make a joke about how this decision might lead to a promising future treatment for diseases: now that DNA is patentable, perhaps courts can enjoin viruses from misappropriating it without license.

Instead I ran across something actually interesting in the opinion and thought better of posting a lame joke rather than something serious, but forgot to change the subject.

Re:promising future treatment (1)

Anarchduke (1551707) | about 2 years ago | (#41018055)

So does this mean I can patent a branch? I mean, I know a tree occurs in nature, but severing the branch from the tree means that it does not occur in nature.

Re:promising future treatment (1)

dgatwood (11270) | about 2 years ago | (#41018083)

By that same argument, I hereby declare my intent to patent rocks cut into the shape of an iPhone. They don't exist in nature, and to my knowledge, nobody has ever made them before, so they should be worthy of a patent, right? After all, they're not the whole rock, just the part shaped like an iPhone.

Re:promising future treatment (1)

slippyblade (962288) | about 2 years ago | (#41018295)

But then Apple will sue you for having rounded corners. Better off simply patenting a stone cube.

Re:promising future treatment (1)

Trepidity (597) | about 2 years ago | (#41018399)

Agreed; I don't find it convincing for basically the reason the dissent states. The majority opinion tries to distinguish "purifying" from "isolating" on the basis that "isolating" changes chemical bonds and thus produces a new molecule. But that is basically how one "purifies" a gene to remove it from its surrounding, unwanted context.

Re:promising future treatment (1)

minio (1640735) | about 2 years ago | (#41018435)

Natural DNA exists in the body as one of forty-six large, contiguous DNA molecules - No need to read further. Only this statement is simply not true on several different levels. The rest just shows that those who written this statement has no clue about biology...

Re:promising future treatment (1)

phlegmofdiscontent (459470) | about 2 years ago | (#41018445)

So they seem to be saying that a purified sequence of nucleotides is fundamentally different than that same sequence found within a chromosome. To me, that seems rather like saying one could patent benzene (or a short polymer) because you can purify it from crude oil and it is fundamentally different than if you had a beaker full of crude oil. More abstractly, it's like saying you can patent a paragraph from a book because it's fundamentally different than the paragraph in the context of a book. Fair use, anyone?

Personally, I think this is a terrible decision. Now, if they had a particular METHOD for purifying and replicating this sequence, they would have a valid patent. Heck, if the introns that they stick onto these sequences are proprietary, they could patent THOSE as well. Otherwise, they really are just patenting something that occurs in nature.

Oh great, another attempt to screw the wold over? (0)

Anonymous Coward | about 2 years ago | (#41017921)

Like the US are in the process of doing with software patents?

The plan is quite simple: Allow / Set up a new type of patent to be created, expanding the options for claiming. Give it a few years and start using political pressure to force the rest of the world to respect your new type of patents.
Results: You give your companies & economy a few years headstart and screw the rest of the world over. Works especially well with a ridiculous disregard for prior art and a system that makes getting a patent invalidated stupidly expensive...

Too Bad (1)

connor4312 (2608277) | about 2 years ago | (#41017933)

Let's see, did they invent it? No, they discovered it. Too bad Christopher Columbus isn't around these days - he could have patented the Americas!

Judges Lourie and Moore don't know DNA from shit (2)

CuteSteveJobs (1343851) | about 2 years ago | (#41017949)

Not only is this a stupid decision - that my genes can be patented by a third party - but it's a decision which will allow the patent trolls to monopolise them and will result in many, many deaths worldwide. These judges should be ashamed of themselves on both levels.

Judge Alan Lourie writes: “Each of the claimed molecules represents a nonnaturally occurring composition of matter.. Oh bullshit. I've noticed when lawyers try and make decisions regarding science and technology - be it copyright or biosciences - more often than not they balls it up and the public is left to bear the cost of their arrogance. In this case research will be curtailed by other scientists not wanting to go anywhere near what may be patented technology, and members of the public will die. Talk about judicial arrogance.

It was Judges Lourie and Moore who fucked this up. Bryson dissented. With such a narrow decision I hope the victims can appeal.
http://www.aclu.org/files/assets/10-1406_0.pdf [aclu.org]

Re:Judges Lourie and Moore don't know DNA from shi (2, Interesting)

Anonymous Coward | about 2 years ago | (#41018155)

Not only is this a stupid decision - that my genes can be patented by a third party - but it's a decision which will allow the patent trolls to monopolise them and will result in many, many deaths worldwide. These judges should be ashamed of themselves on both levels.

Judge Alan Lourie writes: “Each of the claimed molecules represents a nonnaturally occurring composition of matter.. Oh bullshit. I've noticed when lawyers try and make decisions regarding science and technology - be it copyright or biosciences - more often than not they balls it up and the public is left to bear the cost of their arrogance. In this case research will be curtailed by other scientists not wanting to go anywhere near what may be patented technology, and members of the public will die. Talk about judicial arrogance.

It was Judges Lourie and Moore who fucked this up. Bryson dissented. With such a narrow decision I hope the victims can appeal.

http://www.aclu.org/files/assets/10-1406_0.pdf [aclu.org]

Although it is easy to blame mass ignorance when pointing to those appointed to sit behind a bench (which could easily be the case here), did you ever stop and consider that the decision was made with full knowledge and understanding?

I'm not trying to purport wrongdoing in this case, but when you consider the hundreds of billions of dollars that Big Pharma (or other patent holders) stand to make with a decision like this, one cannot remove the possibility of wrongful influence. The benefit is far too one-sided to not consider it.

What did you expect? (1)

Anonymous Coward | about 2 years ago | (#41017979)

The corporation that "owns" the two patents is American. The court that upheld the patents is American. Enough said.

lol (0)

Anonymous Coward | about 2 years ago | (#41018117)

So, they are claiming in a court of law that they invented breast cancer? Shouldn't they now be sued by everyone who has ever had breast cancer?

Your health doesn't matter to Myriad (5, Informative)

fastbiker (1534261) | about 2 years ago | (#41018135)

I used to work at Myriad Genetics on their lab software and believe me they don't give a single shit about anybody's health. They care about charging exorbitant amounts for testing and counseling. Remember, these tests do not definitely tell anybody they will get cancer. They are simply and statistical indicator.

What Myriad patented are not the genes themselves (EVERYBODY has them). What they patented are the pattern of specific mutations of the BRCA1 and BRCA2 genes. It is these specific mutations (nucleotide patterns) within the genes that MAY indicate the POSSIBILITY of cancer. You have to also consider the medical and family history of a specific patient and then make a guess as to what the probability of cancer will be in the future. It's never a yes or no answer.

To add insult to injury, the original research for finding the mutations of the BRCA1 and BRCA2 genes was done by the founders of Myriad at the University of Utah which is a state school. The public paid for the original research.

This is bad law. (0)

Anonymous Coward | about 2 years ago | (#41018157)

I hope the Supreme Court will overturn this and set precedent which
prevents human genes from being patented.

But given the current members of the court, I doubt that will happen.

Prior Art (0)

Anonymous Coward | about 2 years ago | (#41018197)

Seems like the parents of someone who has the genes in question manufactured the patent in question and therefore their offspring would be prior art.

Cut the Tmobile Add overlay (0)

Anonymous Coward | about 2 years ago | (#41018275)

Get rid of the TMobile adds so I can read the story!!!!

Sadly... (1)

SuperCharlie (1068072) | about 2 years ago | (#41018403)

Sadly there was a time when I was surprised by these type things.. the last 5-10 years or so.. not so much.

So, (2)

M0j0_j0j0 (1250800) | about 2 years ago | (#41018453)

Just take the test elsewhere outside the US, make the cell collection in the US, send for analysis outside.

CERN needs to patent the Higgs Boson (1)

Dr.Hair (6699) | about 2 years ago | (#41018461)

Obviously the Higgs Boson is a non-naturally occuring subsection of a molecule which can only be detected with special equipment provided by CERN.

Pay CERN royalties for using their patented Higgs Boson or be subject to having them forcefully removed from your use.

American greed and stupidity at its worst (1)

Anonymous Coward | about 2 years ago | (#41018565)

I have hep C. And having it makes knowing the virus load levels within my system an important measure of how well my immune system is holding up over the years. However because the shape and form of the HC virus is patented and the software to assay the virus must use its patented outline to count the virus the drug company that holds the patent to the shape of the virus can extort any one that produces software to assay this virus.

The result is that the assay test for virus load is so expensive that only the rich that have hep c can afford to know how they are really doing fighting the virus. Even here in Canada doctors shy away from ordering the test because of cost.

The same bullshit is holding back advancement in all forms of medicine and the largely drug and medico funded republican anti social medicine bullshit is to blame for the lack of affordable health care in the US.

The rest of the world needs to strike down this bullshit in the UN once and for all.

Going to have to agree the judges are on crack (2)

WillAffleckUW (858324) | about 2 years ago | (#41018585)

Seriously, it's like saying we're slaves and the property of corporations.

Which still aren't people.

Canada and the EU plus ANZA ftw.

Re:Going to have to agree the judges are on crack (1)

Anonymous Coward | about 2 years ago | (#41018687)

Maybe its time for another revolution.
Preferably a non-violent one but still...

Load More Comments
Slashdot Account

Need an Account?

Forgot your password?

Don't worry, we never post anything without your permission.

Submission Text Formatting Tips

We support a small subset of HTML, namely these tags:

  • b
  • i
  • p
  • br
  • a
  • ol
  • ul
  • li
  • dl
  • dt
  • dd
  • em
  • strong
  • tt
  • blockquote
  • div
  • quote
  • ecode

"ecode" can be used for code snippets, for example:

<ecode>    while(1) { do_something(); } </ecode>
Create a Slashdot Account

Loading...