Oh, that's just great
So when do I get sued for patent infringement?
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 …
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.
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!
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."
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!
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!
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.
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
"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".
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.
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!
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. :)
"""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.
"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.
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.
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.
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.
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???
"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.
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?
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.
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?
..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?
"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.
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….
"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.
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?
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?
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...
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.
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.
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.
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.
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
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.
"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.
> 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.
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.... ;-)
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 . . .
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.)
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.
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.
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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