back to article Isolated human genes can be patented, US court rules

Isolating genes from human DNA structures is patentable, the US Court of Appeals has ruled. The Court ruled that the process of isolating genes from human DNA strands left the resultant individual genes with "markedly different chemical structure" from DNA in the human body. US patent law says that material related to laws of …

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  1. adnim

    Oh, that's just great

    So when do I get sued for patent infringement?

  2. Vladimir Plouzhnikov

    This is becoming intolerable

    Someone must please object on the basis of prior art...

    Next thing you know the maternity hospitals will collect royalties for each patented gene in each newborn and parents of anyone born at home will be automatically fined for copyright infringement and piracy.

    1. Ru
      Facepalm

      Wrong.

      Replicating a gene you already posess? No-one is patenting mitosis here. Get a grip.

      Instead, what you'll see is something much more entertaining, like "we could test your newborn for a whole series of easily preventable but very unpleasant genetic diseases and cancers, but it will cost you $$$", swiftly followed by something like "failing to take these tests may impact any health insurance claims you make in the future".

      Please don't assume lawyers and capitalists are stupid. There's a pretty good reason why they're all richer than you.

      1. sabroni Silver badge

        There's a pretty good reason why they're all richer than you.

        Is it because they're morally bankrupt money grabbing cunts?

        1. Phil A.
          Thumb Up

          Post of the century

          Even if it did nearly cost me a keyboard covered in coffee

      2. Anonymous Coward
        Anonymous Coward

        Re: Wrong

        And that reason is they are amoral scum, which doesn't preclude them also being stupid.

    2. Anonymous Coward
      Anonymous Coward

      Sue the DNA industry

      If Myriad "owns" the bit of DNA that causes breast cancer then surely, especially in America, they are legally responsible for its behaviour.

      Anyone unfortunate enough to get breast cancer should now sue the "owners" of the cause.

      I can't imagine the lawyers are going to turn down the extra work!

      1. Nick Galloway

        Beautiful idea

        Again a case of greed being supported by the greater greed of lawyers. Irrespective of whichever way it goes, the lawyers win. So begins the fall of another once great empire...

      2. Anonymous Coward
        Devil

        Brilliant

        This really would paint the wall red. A medical research patents misbehaving gene - thereby assuming ownership AND responsibility. Excellent. If Ford could be sued for exploding Pintos, then Gencorp can be sued for "its" cancer gene. What are they going to say? "But, your honor, we didn't invent it. We only patented it."

      3. jgb

        Let them have the Poisoned Chalice

        Exactly so!

        Let them have their patent (based on the false claim they've invented something or made an 'inventive step') and then sue them for their shirts when their invention 'runs amok' (causing cancer) or, more subtly, their 'ownership' threatens your capability to detect yourb cancer (or whatever) and therefore infringes your human rights. That really does sound like a no-brainer!

        They really should be more careful what they wish for!

    3. Robert E A Harvey

      Surely

      Surely this is the sort of thing we pay politicians to prevent? not permit.

      I really hope this is not viable in Europe, and that any such patents will be treated with the contempt they so richly deserve.

    4. Random Handle
      Meh

      Prior Art

      >Someone must please object on the basis of prior art...

      Where are all the Intelligent Design nuts when you actually need them....?

    5. sT0rNG b4R3 duRiD
      Paris Hilton

      What if....

      I cut the left testicle off the silly judge who decided this and decided to patent it?

  3. Jedit
    Trollface

    I wonder...

    ... will Apple claimed to have designed human DNA, then sue the human race for imitating the look and feel of their product? After all, what use is half an i?

    1. Meerkatjie
      Joke

      Title?

      According to my basic understanding of physics if you look at something then it's no longer the same as before you observed it.

      I've just spent the last 10 minutes playing with a fondle slab, it's no longer the same as when I started, time to patent the fondle slab. Apple, you owe me money for infringing on my patent!

  4. Anonymous Coward
    Thumb Down

    So taking something apart allows you to patent the individual parts?

    Great, pass me my Haines manual, I'm going to unbolt my engine and pretend to have invented nuts and bolts!

    This is another example of corporate expropriation/enclosure of the commons. It's utter bullshit. No fucker has invented a thing here, they are all liars and should be jailed for their fraudulent patent claims. Intellectual property is theft, the judge is a moron, burn the USPTO.

    1. Allan George Dyer Silver badge
      Flame

      To follow this case...

      you would:

      i) find a method to remove a specific bolt (e.g., "use a spanner")

      ii) claim you have a method of recognising when an engine contains a matching nut ("try screwing the bolt in")

      iii) patent the bolt on the basis that it doesn't have an engine attached.

      iv) find a queue of lawyers willing to charge large fees to defend your patent outside your front door.

      Yep, burn the USPTO

  5. Anonymous Coward
    Flame

    here is a title

    This is so utterly batshit fucking stupid it's unfuckingbelievable. No private entity should be allowed to patent human genetic matter. Such research should be public domain and for the benefit of the entire human race not some money grubbing bastards.

    1. sT0rNG b4R3 duRiD
      Thumb Up

      A bit too polite, methinks...

      but hits the nail right on the head.

  6. Destroy All Monsters Silver badge
    Facepalm

    The world is black and white. Oh no, wait, it's just lawyers!

    "Those with a vested interest in the commercialisation of human genetics argue that the ability to obtain patent protection encourages investment in DNA research, which serves to further innovation. Those opposed to what is perceived to be the monopolisation of nature fear that the high cost of diagnostic testing, such as Myriad's tests for breast cancer will price many out of the market."

    Then there are those that argue that patent protection discourages investment in DNA research, transforms the industry into a collection of lazy rentiers living off their state monopolies, pumps money to useless lawyers, keeps prices of end products artificially high and alternatives off the market, locks down the building blocks for further research and generally delays any advance in the field.

    "This ruling has divided legal opinion and, if upheld, would be welcomed by America's multi-billion dollar DNA industry," David Bloom, a patent lawyer with Pinsent Masons said.

    In other words, "bad for DNA research".

  7. scrubber
    WTF?

    Prior Art?

    Is there nothing you can't patent in America?

    I want to patent the aerodynamics of flight. Boeing and GulfStream owe me a fortune.

    1. David Cantrell
      FAIL

      Patenting the aerodynamics of flight

      Someone owned the concept of winglets, those little bits that stick up at the end of the wing on modern airliners, which increase efficiency by moving wingtip vortices away from the main wing. They were discovered in 1897, patented, and consequently forgotten about instead of being used. They were patented again in 1930 and consequently forgotten about instead of being used. It wasn't until the 70s that they started to see widespread use.

      1. vagabondo

        "winglets"

        were common on paper aeroplanes at my school in the 50s. I don't remember them having a specific name, but folding the wingtips up was standard practice.

    2. sT0rNG b4R3 duRiD
      Megaphone

      Well...

      You're going to have to pay me first.

      I patented breathing yesterday...

  8. Mattyod
    WTF?

    Erm?

    So am I going to have to start paying for the use of my genes?

    1. Robert E A Harvey

      Become a parent

      You will be paying for the use of your genes for the rest of your natural...

  9. Anonymous Coward
    Unhappy

    Travel to the USA and get hit with a Law Suit

    Just because you happen to have been born with a particular gene.

    Far fetched?

    If the US Legal system is anything to go by, I fear it isn't...

    1. Duster
      Linux

      No, no, no

      See the AC post above about suing the DNA industry. They don't sue you; you sue them for their defective product.

  10. Jolyon
    Paris Hilton

    So how many

    of these things can dance on the head of a pin?

    Paris because I seem to remember her doing something of the sort.

  11. Greasemonkey
    Facepalm

    Wrong!

    That sounds like the wrong outcome. If I understand correctly, this ruling would mean that nobody else can develop a process to look at the particular chemical sequence that is patented without negotiating a licence with the patent holder. So the holder might have a monopoly on testing for breast cancer via DNA checks.

    A better outcome would be to grant a patent on the *process* used to look at the sequence. Then anybody who develops a better process to look at the same sequence can get a new patent and hey presto, we have competition!

    1. Ross 7

      Right!

      Greasemonkey, not the court.

      They've not actually patented the gene per se - the article isn't very good on that point. They've patented the cDNA version of it (basically the DNA version with the introns excised from it). Their argument is that it doesn't exist in nature. It's a result of a piss poor understanding of molecular biology (amongst other things)

      Moore CJ based his finding on the fact that RNA and DNA are entirely different. It appears he overlooked the effects of this logic.

      It's still possible to work on the genes, it's just not possible to insert the gene into a bacterial plasmid and produce shed loads of the protein it codes for. It's still fine to create the RNA that will be used in translation, you just need to factor in another step to avoid using the exact DNA that was patented. Plenty of restriction enzymes are well understood - easy to bypass this patent and use this judgement to protect yourself when/if you get sued. :)

      1. Nexox Enigma

        It's just a patent...

        """It's still possible to work on the genes, it's just not possible to insert the gene into a bacterial plasmid and produce shed loads of the protein it codes for."""

        My understanding of patents (admittedly I think about them in the scope of mechanisms, not molecules) is that patents only grant you the right to prevent another party from selling the thing you've patented. IE If party A patents a widget, party B can make (and give away, or use them internally) a million of them, and party A can't stop them. This is why, for instance, Microsoft sued TomTom for using patented code within the Linux kernel, instead of suing the kernel devs. Since the kernel devs give the code away for free, patents don't grant MS any ability to sue them.

        In any case, that would indicate to me that you could produce all the protein you wanted, as long as you didn't sell it.

        The entertaining thing to do here would be to immediately patent all possible uses for the DNA which aren't specified in the original patent, just to irritate the patent holder, and for the chance of screwing them in the future. Yes, you can patent a new use for a previously-patented object/substance/etc.

        (IANAL)

      2. scarshapedstar
        WTF?

        Still insane though

        So you can take literally any DNA gene, transcribe it to RNA, then use reverse transcriptase to generate cDNA, and slap a patent on it.

        Time for a fucking gold rush, then. Patent everything!

  12. Anonymous Coward
    Flame

    Is there a gene for retarded judges?

    Maybe we could patent that and put an end to this fucking shambles.

  13. The Mole

    Confused

    "Myriad had argued that it was the method of isolating the gene and not the gene itself that was the subject of its patent. Myriad appealed and in a majority decision the Court ruled that the company could patent isolated genes."

    So which is it?

    Are they patenting the method to extract isolated genes (what it claims the argument was)

    Or the ruling which is to patent the actual isolated gene.

    If it is the former then that is fair enough (if it is non-obvious and inventive how they do it beyond just making the decision this is the gene we want). This would leave the option for other people to invent other methods to isolate the gene.

    Patenting the actual gene as well seems far more dubious and undesirable to society as a whole.

    Thomas

    1. scarshapedstar
      Unhappy

      What's the difference?

      The thing is, they did not invent their own method. Reverse transcription uses enzymes developed (but sadly not patented) by viruses - HIV being the most notorious 'inventor'. Scientists use it to trim the junk out of genes, and it's in this day and age it's such a generic technique that I'd liken this case to someone patenting the image of Plasmodium falciparum under a microscope, even though they didn't discover malaria or microscopy.

      Would that mean that nobody could look at malaria anymore? Would that mean that they owned malaria? Either outcome would be absurd, and so is this patent.

  14. The BigYin

    What?

    Does this mean that a person could be sued in the USA if they have a natural mutation that just happens to be the same as a patented gene?

    Genes should be like software (and business processes) unpatentable as genes are nothing more than meat-space programs.

    1. M Gale

      Unfortunately this is in the US

      Where software is very, very patentable. And the corps based there can't wait to export their particular world-view to the rest of the planet.

  15. Anonymous Coward
    Trollface

    So are churches going to challenge this

    on the grounds that it was all invented by God?

  16. Anonymous Coward
    Trollface

    Here's a thought

    Does the Queen have the ability to rescind Independance, thereby reverting all US-owned stuff to England?

    Might only need the one lawsuit to grab everything then we can sort their shit out for them

    AC cos well, you know someone's gonna threaten to Push The Button on our god-damned pinko commie subversive fag backassward third world of a Limey nation within milliseconds and bomb us back into the stoneage or something. They usually do that.

    1. PatientOne

      eltit

      'Does the Queen have the ability to rescind Independance, thereby reverting all US-owned stuff to England?'

      No, and that's probably just as well. Unless you want to see Britain landed with a multi-trillion-dollar debt?

  17. Anonymous Coward
    Anonymous Coward

    What are you lot wittering on about?

    If a company can isolate a particular DNA in a repeatable and identifiable way then they can get a patent on that process.

    By creating such processes, we open new doors to medicine and the understanding of our bodies. This is good.

    If companies can make money by doing this, they will do it. This is good.

    If they can't make money doing, they won't. Not good. Bad! :-(

    Or is this some random anti-capitalism bollocks? In which case get of the interspazz, you bloody hypocrites.

    1. Anonymous Coward
      Anonymous Coward

      Read links before commenting

      It's not the chemical process that most of the posters are objecting to. It's the courts ruling they they also own a patent on that part of DNA that the process that the process finds.

      You could apply that to a biopsy. A cyst wouldn't naturally grow on it's own without a body, but the surgeon that cut it out couldn't prevent others from cutting out a cyst because they owned the patent to the scalpel and the cyst. If someone came along with a laser and cut it out, under the current ruling, the surgeon could sue even though the process was different but the cyst was the same.

      Just because the sliver of DNA doesn't exist naturally, it does exist as part of a whole. So this company can sue if someone else finds the same isolated strip elsewhere as a marker for a different disease???

      1. PatientOne

        @AC 11:27

        "Just because the sliver of DNA doesn't exist naturally, it does exist as part of a whole. "

        Just going to correct this a bit:

        "Just because the sliver of DNA doesn't exist independently in nature, doesn't mean it isn't naturally part of a whole."

        That DNA sliver might be cancerous but it developed as part of a natural process, hence it is natural, if undesirable, as opposed to a DNA sliver that was specifically grown off a natural one. A bit like the difference between a sucker and a graft when you're dealing with rose bushes. The sucker is natural, the graft is artificial.

    2. Anonymous Coward
      Anonymous Coward

      title

      But the article (and someone else in the comments pointed this out too) states Myriad are trying to patent the process but the judge allowed them to patent the isolated DNA itself instead.

      Which is it? If it's the isolated DNA then that is *bad* and quite rightly whinged about - such as the "you need to pay this extortionate charge to identify x genetic illness or your childs future insurance will be void. If it's the process then I'm with you and that is a rare example of good patenting.

      But the quote in the article is muddled, any chance of the el reg keyboard-tippety-tappety officer clarifying this?

    3. Destroy All Monsters Silver badge
      Childcatcher

      Random anti-capitalism bollocks?

      Listen, child: Learn2Capitalism.

      It is not "rent-seeking behaviour" prodded along by members of the bar association.

      http://www.dklevine.com/general/intellectual/againstfinal.htm

  18. Liam Johnson

    biologists may think of molecules in terms of their uses

    But judges know better.

  19. Captain Underpants
    Pirate

    Hmm, there are a bunch of questions here

    The first one that comes to mind is "what happens to the public interest aspects of this?" but the most important by a country mile is "Exactly how was this verdict bought from the judge?" because you just *know* there are a shitload of bioprospectors/biopirates cheering on at the notion that they might yet be able to patent stuff that they haven't invented but can exploit for massive wealth.

  20. Mako

    Hmm.

    "This ruling has divided legal opinion and, if upheld, would be welcomed by America's multi-billion dollar DNA industry," David Bloom, a patent lawyer with Pinsent Masons said.

    Billions of dollars involved? That dull thud you just heard was the sound of a rubber stamp.

  21. oddie

    Good / Bad?

    is this a good or a bad thing? most posts on here seem to either be of of the 'lets trust the lawyers, it will be al right' persuasion, or 'the sky is falling, you will get my dna molecules when you pry them from my cold dead hands!' view...

    has anyone analysed this to see what full consequences of the ruling will be (if it stands as it is now, appeals depending, etc)

    will this mean existing procedures or anything that uses those dna structures currently are affected? -if so that's bad (but wouldn't that by default be prior art?).

    will this mean that lots of companies have an incentive to find out what parts of our dna does what, and for that the devils due of economic rights to those parts for a number of years we will now be able to cure diseases up until now uncurable? -more good than bad.

    is this simply going to usher in a new era of dna and cell research? -def good

    Will this imped other research in this area, research that would have been carried out without these patent rights? -bad bad bad

    am I being too practical about this?

  22. heyrick Silver badge
    WTF?

    Idiotic

    Saying the chemical structure is different is enough to call it unique? Using that logic, ripping my CDs to MP3s changes the "structure" of the audio container (and, to a degree, the audio itself) to call it a different "unique" creation.

  23. Anonymous Coward
    Flame

    utterly bollocks ruling

    Don't need to say anymore

  24. Mike Smith
    Meh

    Every bone-headed decision like this...

    ..brings the day a little closer when the rest of the industrialised world will just say, "oh, that's nice dear" to Uncle Sam and get on with running things their way.

    Britain's industrial hegemony went from near-absolute to non-existent in only a few decades. America is well on the way down a similar road. In the next twenty years or so, historians will point to some time between 1972 and 1989 and mark it as the start of the fall of America's global dominance.

    It's been going on for a while now. This sort of stupidity is just another symptom of something that's lost its way and is now rotten to the core.

    Quick test for you - if you had something to market and develop in this much-trumpted global market-economy-paradigm-24-times-seven thingummyjig, would you base your operation in a country where you can be sued for the most trivial reasons, or would you go somewhere with a much lower level of legal parasitism and a halfway-decent patent system?

  25. Anonymous Coward
    Anonymous Coward

    My patent

    The inhalation of oxygen by lawyers - please cease and desist

  26. fLaMePrOoF
    WTF?

    WTF?!

    "Myriad had argued that it was the method of isolating the gene and not the gene itself that was the subject of its patent. Myriad appealed and in a majority decision the Court ruled that the company could patent isolated genes."

    This makes absolutely no sense whatsoever; how do they get from patenting a METHOD for GENE ISOLATION / EXTRACTION, to patenting the ACTUAL GENES being isolated / extracted..?!

    Either the article has made an error here, or else the court decision was a non-sensical farce.

  27. Anonymous Coward
    Anonymous Coward

    Drug companies

    Which are the companies which will end up running all this once they buy out all the start-ups - They are so trustworthy are they not? I mean the amounts they charge for anything is well in proportion yes? So no problem with this at all – Health Capitalism has proved itself to be a fine moral upstanding ideology that should be allowed to do anything they want – I mean they are there to help all those lovely shareholders and screw the people dying….

  28. jake Silver badge

    The law is an ass ...

    "Myriad used chemicals to split the genes from the DNA structures and this creates a "distinct chemical entity", the Court said in its ruling."

    I used mathematics to split the algorithm into simple structures and this creates a series of "distinct mathematical entities", jake said in his satire.

  29. Winkypop Silver badge
    Big Brother

    If they can't tax the air

    It seems they can patent our genes..

  30. G 4
    WTF?

    GPL for Genes?

    If someone take a strand of my DNA, isolates a gene that can then be (now legally, but questionably) patented, I don't see why the whole process can't have been scuppered by me asking them to sign a GPL type license at the point of taking my DNA/blood sample. Wouldn't that be able to cover anything derived from the information therein?

  31. Anonymous Coward
    Anonymous Coward

    Re: Wittering

    11 thumbs down already! Christ, you can tell school's out.

    "It's not the chemical process that most of the posters are objecting to. It's the courts ruling they they also own a patent on that part of DNA that the process that the process finds."

    It's not "DNA" in any sense that makes sense without the process.

    "The claimed isolated DNA molecules are distinct from their natural existence as portions of larger entities, and their informational content is irrelevant to that fact. We recognise that biologists may think of molecules in terms of their uses, but genes are in fact materials having a chemical nature and, as such, are best described in patents by their structures rather than their functions"

    What am I missing?

    1. PatientOne

      @ AC 13:22

      You're missing the bit where the chemical structures are developing naturally.

      Every single case of that DNA existing in nature is prior art. Or do you believe that you can take a chair where one of the legs has developed a twist, cut off that leg then patent it? Crudely put, that is what this judgement is suggesting.

      As I mentioned elsewhere, this is much like growing a rose. If a sucker develops, it's natural and should not be patented. If I graft another stem onto the rose, however, that growth could be patented as it required intervention to create (I'm growing a hybrid, after all, so why shouldn't I get recognition from that work?). This DNA sliver developed naturally, unless someone is claiming they intervened and *caused* that DNA to develop, in which case there will be one hell of a lot of damage claims and law suits being aimed at the patent holder...

  32. Ben M

    Court v Parliament

    This is something Parliament should legislate on. Courts can only look at existing law (common law and statute) when deciding on something novel.

    Whereas Parliament can take into account multiple factors when making new laws. Parliament (whether it's full of idiots or not) is best placed to balance the need to encourage and protect R&D against what is sensible and good for the population as a whole.

    Parliaments everywhere need to act before the court rulings become the default position.

  33. Saul Dobney

    Wrong call

    The judgement is interesting to read - including the dissenting judge. Hopefully this will go to the Supreme Court because it is weird. They say that the isolated DNA for the specific gene does not exist in nature and is therefore a created entity - as such it can be patented.

    But, lets say I apply a process to an extract of human DNA. If in doing so, I get sections of DNA that fall under the patent simply by the process of snipping and extraction, I can't see how the patent has been breached. These samples would be elements discovered and are not creations as such. The ruling is perverse - it's like patenting an animal's fur or skin. The fur does not exist in nature other than as part of the animal which is the test they have applied here. But the process of even though that fur or skin or leather has useful properties, simple removal or extraction does not make it any less natural. Just because DNA is a molecule, doesn't make it any less like fur, skin or flesh.

  34. K. Adams
    Black Helicopters

    Ever read the book "Next," by Michael Crichton?

    In the novel, Michael Crichton describes (with a certain amount of florid fanfare) the implications of just this situation:

    -- Step 1. Make genes patentable, thereby making them "property" subject to Eminent Domain:

    -- -- Eminent Domain in the United States:

    -- -- -- -- http://en.wikipedia.org/wiki/Eminent_domain#United_States

    -- Step 2. Allow State Universities to enact Eminent Domain to harvest genes from individuals of scientific interest (such as "HIV elite controllers" -- individuals which demonstrate a remarkable natural resistance to HIV, and do not develop AIDS after exposure to the virus).

    -- Step 3. License the harvested genes and related University "research" to pharmaceutical companies for Fun and Profit.

  35. Anonymous South African Coward Silver badge
    Coat

    What a load of...

    fresh bull fertilizer.

    I'm getting off this planet at the first opportunity.

  36. Spaw

    Copyright

    My wife and I have jointly published 4 complete copies of the human genome, titled Dominic, Nicholas, Jennifer and Ruth

    All rights are reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, electronic, mechanical. photocopying,recording, or otherwise, without the prior written permission of the publisher. This will never be granted in the case of a patent application.

    1. Allan George Dyer Silver badge
      Childcatcher

      You're OK untill...

      those four copies grow up and start producing more copies. Though I suppose it's an extra argument against unsuitable boyfriends... "Marry him and I'll sue for patent infringement!"

      1. Anonymous Coward
        Happy

        ah yes replicative fading

        dont need nowt here

  37. Anonymous Coward
    Coat

    Plan...

    Ok, the filing might be a bit long:

    As claim 1, but with a genetic code of AAAAAAAAAAAAAAAAAAAAAAAA

    As claim 1, but with a genetic code of AAAAAAAAAAAAAAAAAAAAAAAC

    As claim 1, but with a genetic code of AAAAAAAAAAAAAAAAAAAAAAAG

    As claim 1, but with a genetic code of AAAAAAAAAAAAAAAAAAAAAAAT

    As claim 1, but with a genetic code of AAAAAAAAAAAAAAAAAAAAAACA

    etc

  38. lunatik96

    Patentently shill judge rules in favor of DNA Patent

    The judge is patently a shill. They would not have tried this unless they knew the judge was in their patented pocket.

  39. Sir Cosmo Bonsor

    53+ comments and so far nobody

    even read the first two sentences or the article.

    Nobody is patenting genes, DNA, your gonads or your kids' chromosones.

    They're talking about "the process of isolating genes". That's a terrifically hard thing to do. It costs these companies billions to achieve. You don't think their work deserves some kind of protection?

    Well, the alternative is that is simply doesn't get done, and you die younger.

    1. Richard 12 Silver badge
      FAIL

      Wrong. Read the judgement - Try Page 8.

      "On the merits, we reverse the district court’s decision that Myriad’s composition claims to “isolated” DNA molecules cover patent-ineligible products of nature under § 101 since the molecules as claimed do not exist in nature."

      How clear would you like?

      That is a direct and clear judgement that the DNA fragment ITSELF may be patented, supposedly because the specific fragment isn't completely isolated in a living animal.

      And that is the most heinously stupid judgement possible - it is exactly equivalent to saying that one can patent a piece of seal fur that doesn't include the flippers is patentable because all living seals have flippers.

      Nobody is objecting to the idea of being able to patent a specific process whereby such a DNA fragment may be isolated.

    2. Anonymous Coward
      Anonymous Coward

      But we made it as far as the title

      > Nobody is patenting genes

      Article title: "Isolated human genes can be patented"

      As I read it, they've argued that because the process of isolating genes is such a terrifically hard thing to do, what pops out the end is nothing that occurs naturally, so can be patented as a unique thing in itself. Sort of like being given a patent on a brick because taking the house apart was hard. Ish.

  40. Mr Common Sense
    Trollface

    So that's what the UKs DNA database was really for.

    I wonder how long it will be until a briefcase full of samples gets "lost" on a train.

  41. Zippy the Pinhead
    WTF?

    Post your own message

    How can you patent something created by nature?

  42. Anonymous Coward
    Alert

    Crock of steaming....

    ....

    Isolation methods being patented, fine, no problems with that, I can think of at least 6 methods I have used in the past, all proprietary, all get DNA from tissue into solution so you can monkey with it. Ditto RNA.

    Patenting the gene itself, well, where to start? Shockingly bad judgement from the court, I get the impression m'learned friend wouldn't know the correct end of a double helix if it came along and twatted him in the face.

    As to cDNA being patentable as it's not in a living system (a comment somewhere above) - whilst I suppose it is technically correct - that is what spliced mRNA is there for (kinda cuts out the middle man). But, lets not forget about those nasty, potentially patent infringing retroviruses eh?

    I can't get my head around the chemical structure bit, if it was so fundamentally different post-isolation you could not use it as a precursor for downstream cloning / manipulation etc (unless there is some link to monoclonal antibodies or some such - key here being DNA structure and possible inhibition). I haven't read the pdfs yet....

    Still a crock, whatever the reason.

    @Sir Cosmo Bonsor : feel free to patent my gonads, you'll have to get them off me to prevent me from infringing those patents.... ;-)

  43. Handle This
    FAIL

    Not having read any of the other comments here . . .

    I will just enter my observation that this twisting and contortion-filled exhibit of faulty logic presented by what used to be American jurisdprudence represents but another step on the road to the total corporatisation of America and Americans - quite literally, in this case. The opinion, read in total, displays a sad misapprehension of biology, the originally declared underpinnings of the patent system, and logic as a whole. How depressing . . .

  44. ~mico

    I wonder...

    If i replace just one atom in this gene with chemically identical but different isotope, can I patent the variant? The trillion variants?

  45. Mectron

    If any one needed a proof

    that the US Patent office is completly CURRUPTED AND OUT OF TOUCH. this is it.

  46. 289347
    Pirate

    Copyright Movie Clips for All!

    So, does this mean that in the US, if you take excerpts from movies, then you can claim copyright over them?

    The situation is perfectly analogous, and all you have to do is rewrite the ruling something like this: -

    "...the copyright eligibility of an isolated movie clip is not negated because it has similar informational properties to a different, more complex movie that embodies it.

    "The claimed isolated movie clip frames are distinct from their released existence as portions of larger entities, and their informational content is irrelevant to that fact. We recognise that film studios may think of movie frames in terms of their use, but movie clips are in fact collections of data and, as such, are best described in copyright law by their structures rather than their functions.

    "In this case, the claimed isolated movie clip frames do not exist as released by the studio as a collection of 'shorts' that can be separately viewed. They have to be technologically cleaved from their sequential combination with other movie sequences. In other words, as released, isolated movie clips are bonded to such other materials. Thus, when cleaved, an isolated movie clip is not a copy of released copyright material, but a distinct creative entity."

    QED (Quite Easily Done - as my old maths teacher used to say.)

  47. 289347
    Black Helicopters

    ALL YOUR BASE PAIR...

    ...ARE BELONG TO US.

  48. Dick Emery
    Joke

    Patent trolls?

    Patent trolls? We can now trace that specific gene for you! At a cost of course.

  49. Arthur Dent

    One of three had it right

    Looks as if just one out of the three appeal judges had a clue. Bryson thought the process claims OK, and the vastly wide DNA claims nonsense. Seems about right to me (although he seemed a bit soft on some of the DNA claims).

    Let's hope that the next court up the chain prefers his position to the nonsense promoted bythe other two judges.

  50. Anonymous Coward
    Anonymous Coward

    Give them the patent

    read on before you downvote immediately!

    Let's say they find a cure for breast cancer using these 2 genes and they create a pill/injection etc for this and then they say "ok it's $10,000 a pop" for this.

    At this point you gently explain to them that their patent ONLY covers the individual sequences on their own and not when combined with a persons other DNA sequences (this is essentially a reverse of their own argument to get the patent in the first place).

    Then start manufacturing the pill/injection for a $1 in whatever country you want.

  51. Anonymous Coward
    Happy

    One of three had it right

    Yes, patenting a novel extraction process is defensible and allowable. Laying claim to a thereby extracted portion of naturally existing DNA/RNA is definitely not. And that, unless I've misread the judgement, is what has been permitted here.

    How many of the three judges had any qualifications in the relevant field? If they did not, what advice did they take, and from whom? In the interests of transparency, we should be told what 'expert advice' they sought, and from what source(s).

    Of course, we will never know that. I just hope that the decision is overturned on appeal.

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