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A U.S. Federal Court ruled this week that unaltered human genes are products of nature and not patentable. It revoked the patents on breast cancer genes held by Myriad Genetics.  (Source: K Science)

Until now, Myriad Genetics "owned" the human breast cancer genes. It blocked competitors from developing tests for commonly occurring variants of the genes, essentially preventing patients from getting a second opinion.  (Source: Think Gene)
ACLU triumphs over Myriad Genetics, but future legal challenges are likely forthcoming

A court decision this week may at last spell the end to companies' rights to claim ownership of your genes.  However, the story started long ago in the biotechnology industry's nascent days in the year 1980.

The 1980 U.S. Supreme Court Decision Diamond v. Chakrabarty was among the most important legal precedents of the last two decades of the previous millennia.  While it will never enjoy the instant recognition of a case like 
Roe v Wade or Brown v Board of Education, the case was among the most important commercial and medical decisions in modern history.

It ruled that "organisms" made from human DNA were patentable if they were "man-made" -- produced by human processes.  This was interpreted, over time, to mean that genes of organisms could be patented, granting the holder exclusive ownership of that gene.

That may sound incredible, given that most patent systems worldwide, including that of the U.S., disallow patents based on nature, and genes were developed by nature, not man.  Still, the U.S. Patent and Trademark Office has received over 3 million patent applications to date on genomes, according to the Human Genome Project.  Many of those patents were granted.

Today, according to experts speaking with 
National Public Radio, over 20 percent of the genes in the human genome are patented.  Companies that own these patents can block other companies or research institutions from developing tests for these genes or developing certain medical treatments.  The criteria to receive a genome patent today has become slightly stricter, but they today are granted if the inventors can:

  1. Identify a novel gene

  2. Specify the gene's sequence

  3. Explain how the gene functions in nature

  4. Extract the gene using bioengineering techniques

  5. Enable its use in medicine

By that definition, companies are perfectly entitled to "own" rights to genes that your body likely contains, and own the rights to genetic tests on those genes.

However, that may be coming to an end, with what may come to be considered one of the most important federal court rulings of the new century.

In the case Association for Molecular Pathology v. United States Patent and Trademark Office, better known as ACLU v. Myriad Genetics, ACLU lawyers challenged a big biotech firm's ownership of two breast cancer genes, BRCA1 and BRCA2.  Myriad Genetics had extracted the genes, unaltered, using standard techniques, then patented them.  It proceeded to sell expensive test kits for breast cancer.  It blocked competitors from using the genes, essentially disallowing patients the chance at a second opinion.  It also blocked university cancer researchers from studying the gene in some cases.

On Monday, Judge Robert W. Sweet of the United States District Court for the Southern District of New York ruled against Myriad Genetics in a precedent setting case.

He writes in his decision [PDF]:

In sum, the clear line of Supreme Court precedent and accompanying lower court authorities, stretching from American Wood-Paper through to Chakrabarty, establishes that purification of a product of nature, without more, cannot transform it into patentable subject matter. Rather, the purified product must possess “markedly different characteristics” in order to satisfy the requirements of § 101.

That decision essentially rules patents on unaltered genes of humans and other organisms dead, unless the decision is appealed or overturned in this case or another by another federal court or the Supreme Court.  There will be ample opportunity for that to occur -- the ruling is expected to lead to many genome patent holders to be taken to court in an effort to revoke their ownership of genes of humans and other creatures.

Advocates of reform are cheering the decision.  Despite being heralded by critics as a "liberal" ruling, among the strongest opponents of gene patents was conservative late science-fiction author Michael Crichton.  Crichton published an op-ed in 
The New York Times in 2007 attacking the BRCA patents, writing:

YOU, or someone you love, may die because of a gene patent that should never have been granted in the first place. Sound far-fetched? Unfortunately, it’s only too real.

Gene patents are now used to halt research, prevent medical testing and keep vital information from you and your doctor. Gene patents slow the pace of medical advance on deadly diseases. And they raise costs exorbitantly: a test for breast cancer that could be done for $1,000 now costs $3,000. 

For critics, though, the decision is infuriating.  Gene Quinn, Patent Attorney and founder of the IPWatchdog blog calls Judge Sweet a "88 year old liberal jurist" and comments:

Our founding fathers seemed to have done quite well with this “American experiment” and one thing is certain, they knew a thing or two about incentivizing people in the face of long odds. They also felt it necessary to mention intellectual property, specifically patents, in the Constitution, which is an almost unbelievably short document that does little more than announce fundamental principles. For those who have trouble keeping up, this means the US patent system was considered of FUNDAMENTAL IMPORTANCE by the likes of Jefferson, Madison, Washington and all the others in the starting a thriving and sustaining democracy Hall of Fame!
...
It isn’t just a passing craze. Hakuna matada, its just a matter of time before the United States Court of Appeals for the Federal Circuit reverses Judge Sweet, because word on the street is Myriad WILL appeal (surprise surprise). 

Like it or not, the claim that a company can "own" a human gene has been dealt a serious body blow by the U.S. federal court system and stands a few more blows away from a knockout.  The U.S. leads the world in biotechnology and genetics research -- so whatever legal precedent is set in the U.S. will likely have a profound affect on the law in Japan, China, India, the EU, and elsewhere.



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RE: SUCK IT
By porkpie on 4/2/2010 10:33:36 AM , Rating: 2
quote:
If the results of their research are spilled all around the industry, before a treatment (be it a drug or technology) is invented by them, then all the research money was wasted on curing people for someone else's profit.
How sad is that?
Its very sad, considering that, without the possibility of return on investment, those investments will not be made. That means new treatments, tess, gene therapies etc will not happen...except on a very limited basis, funded in a highly wasteful and inefficient manner by the government.

Ignorance such as yours is what kept us in the Dark Ages for ten centuries. Without a patent system, there is little incentive for discoveries...and when they're found, they're invariably kept as secret as possible, to prevent others from benefiting from their use.

Do you REALLY want to return to a Medieval style system, where the only way valuable processes and inventions are disclosed, is in a highly secretive process of guilds passing them on to their journeymen members? The patent system is what did away with that nonsense.


RE: SUCK IT
By banthracis on 4/2/2010 1:10:37 PM , Rating: 1
You're making a false conclusion. Gregor Mendel did his work on Genetics before the patent system for free, for no monetary benefit (he was a monk).

Einstein and Newton did the same for their physics discoveries.

Watson and Crick never patented DNA after their discovery.

John Salk discovered the Polio vaccine, yet never patented it. It's discovery saved millions of lives, and statistically may have save yours and mine.

Some of the greatest discoveries, indeed, the ones that truly revolutionize mankind are NOT patented. Why? The patent systems doesn't promote innovation, it stifles it by denying access to discoveries by countless others who can improve on them and turn mere scientific idea's and discoveries into practical and application devices or treatments.


RE: SUCK IT
By porkpie on 4/2/2010 1:36:35 PM , Rating: 3
"Einstein and Newton did the same for their physics discoveries"

Oops! Here's just a few of Eistein's many patents:

http://www.bekkoame.ne.jp/~o-pat/english2.htm

As for your discoveries like Newton's, in the 17th century, the only tools you needed for research were a mind, an ink quill, and possibly a telescope. Today, progress in genetic science requires tens of millions in lab equipment and funding -- even if the people involved are willing to work for free (which most are not).

The patent system is one of the key advances that brought about the Industrial Revolution. Like Capitalism, it made basic human nature (self-interest) a benefit to society, rather than a curse.


RE: SUCK IT
By eldakka on 4/5/2010 10:47:52 PM , Rating: 2
Einstein did not patent his physics discoveries.

There is no patent on the special theory of relativity, or his theories on thermodynamics.

In the site linked above, from the text of two of the patents (emphasis mine):
quote:
This invention relates to a camera with a device for automatically adjusting the light intensity, and an object of the invention is to provide means for automatically adapting the light impinging the photographic plate or film of the camera to the light intensity of the surroundings and particularly of the object to be photographed.

A further object the invention is to provide means for an automatic adjustment of the light intensity without necessitating the use of a power source which may be due to get exhausted after a certain length of time, like an electric battery.


and

quote:

Our invention relates to the art of refrigeration and particularly to an apparatus and method for producing refrigeration wherein the refrigerant evaporates in the presence of an inert gas and more particularly to the type disclosed in Patent No.1,685,764 granted September 25th, 1928, to Von Platen and Munters and our British Patent No.282,428.


The patents are on processes and devices which results from his (and others) theories. They are not for the thermodynamic theories that lead to refrigeration, or of cameras, or of light, or prisms, etc.


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