By Andrew Nusca
Posting in Cancer
A federal appeals court ruled on Friday that genes can be patented, overturning a previous decision by a lower court and encouraging biotechnology companies.
A federal appeals court ruled on Friday that genes can be patented, overturning a previous decision by a lower court.
The Court of Appeals for the Federal Circuit ruled that Myriad Genetics was entitled to patents on two human genes used to predict if women have a heightened risk of developing breast and ovarian cancer.
Why the change in ruling? The court said that DNA isolated from the body was eligible to be patented because its chemical structure is "markedly different" than that of DNA inside chromosomes.
Because of this distinction, isolated DNA is not a product of nature and can be patented, according to the court's ruling.
Judge Alan D. Lourie writes:
In this case, the claimed isolated DNA molecules do not exist as in nature within a physical mixture to be purified. They have to be chemically cleaved from their chemical combination with other genetic materials. In other words, in nature, isolated DNAs are covalently bonded to such other materials. Thus, when cleaved, an isolated DNA molecule is not a purified form of a natural material, but a distinct chemical entity. In fact, some forms of isolated DNA require no purification at all, because DNAs can be chemically synthesized directly as isolated molecules.
You can read the entire document here (.pdf).
Its finding defies the Obama administration's argument that isolated DNA should not be patented. As you might expect, the U.S. Patent and Trademark Office has not entertained patents of this nature.
Despite the ruling, there's one catch: the process to evaluate whether a patient’s genes had mutations that increased his or her risk of cancer was not patentable.
Nevertheless, the case may eventually reach the Supreme Court. The arguments on each side focus on future innovation: the biotechnology industry argues that patents are necessary to encourage it, while federal prosecutors say innovation is exactly what patents stifle.
Andrew Cohen outlines the next steps at The Atlantic:
Its going to take at least a few more years for the Supreme Court to resolve this case -- and it will take longer still for the courts to resolve the new cases cropping up in this area. The law always lags behind new science. In this case, the lag is costing lives.
To date, thousands of isolated human genes have been patented.
Aug 1, 2011
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In a few years nothing personal is yours anymore. Your whole body is patented and owned by them Your soul is sold to the devil. They promised us Zion , they sold us to Cylon
I am a very long term HIV/AIDS survivor and I've done it without drugs. my wife has mentioned to me (or has asked the question) did these people have the right to patent my DNA. obviously the answer was yes all along. I also cleared Hepatitis C as well as Limes Disease. I imagine some white collar criminals are very rich right about now. Fellow Traveller
It's like saying you can patent a wheel if you take it off the axle so it is no longer part of a complex assembly. It makes no sense.
there is a phrase that I have heard over and over again in life and it is this: 'there is nothing new in this world' Nature or G*d or Earth has been here for over 4-5 billion years. WHY do we think we can think up anything new? Innovative? Novel? this is just a construct for someone to make money or in its simiplest form a living. The opportunity for abuse and greed is enormous. I hope and pray that clearer heads will prevail and make sure that the government does not get involved in human beings DNA.
...then the Law is an Ass. A patent is a temporary monopoly awarded in exchange for publishing your invention. It's main purpose is to promote creative problem solving. But far too many applications are written to obfuscate the actual details. To be awarded a patent, the application should be required to permit replication by any practioner of the art.
What seems to be little understood is the underlying concept of patenting. The patenting process requires that a device or process must be innovative and novel. Or in other words there must not be any "Prior Art". For that reason it should not be possible to obtain a patent on an existing item/process which already occurs in nature or any other field. However if a new process is developed to ascertain or arrive at a result then this process can and should be patentable even if the result may not be patentable. The process of developing a new and innovative process or device can be very time consuming and very costly and a patent is intended to provide a limited time of monopoly like protection. However, a patent is only as good as the money you have to pay for infringement litigation. It is a bit like justice; the more money you have the more justice you can afford. Furthermore, a patent does not inhibit innovation. You are always free to improve on a patent using your innovative ingenuity and go and patent.
This legal logic requires the narrowest set of blinders imaginable to even consider it to be legitimate, let alone conclude that this is patentable. Lets hope that the conservative free enterprise wing of the Supreme Court is still not strong enough to legitimize this kind of reasoning. It cannot stand if we want a semblance of a healthy planet. The patent system is already broken beyond fixable, as is evidenced by the software debacle. Perhaps this will be the impetus to overthrow the entire concept and replace it with something that more closely addresses the complexities of modern technology in ways that honors the inventors without destroying our economic system.
uhm.... please, let me start and just say ..... WHAT!!!!!!!!!!!!!!!!!!!!!!???!! although I don't know what that exactly will mean in terms of consequential manifestations.... hmm... I don't see how that's exactly is going to be used. Nothing against good bio-tec, it's just the Evil-forms that worry me. But one can't patent "illegal" patents, it's just the even though tec would be registered, it would also be probably publicly accessible via patent-search, and that would allow more wide-area of abuse? How is that different than any other tec? Nuclear-knowledge has been here for a long time, so anyone planning on a mass murder or extinction would have had to come out a while ago. Waiting for the right time? Using microbes? The patenting wasn't the problem, they already did create bio-weapons and already used for war, even some claim that HIV isn't a natural mutation, but the product of an ambitious mad American scientist (not people or government plat by definition) that just had to "go there"!!! -_- The patent would just actually put the blame & praise where it belongs. It's just an administrative issue, that should enforce justice. So I don't think that's the problem. I'm just wondering what is allowed to patented exactly? Meaning anyone that want to use the knowledge of the sequences that are discovered, now has to pay royalty for the patent holder, or what? It seems only to apply to unique synthetic DNA, if I'm not glancing over something. So no one would actually own our Gene sequences, but their invented, modified version? I'm too lazy to get into this part of this field at this point, just flowing to trigger someone that might be able to shine a better light with less efforts. Anyone?
So, the distinction is in vivo vs. in vitro? Really? One presumes that if one could successfully, independently regenerate human chromosomes in vitro, and mature a fetus outside the womb, the result would be a patent-able product. "The law is an ass." (Dickens)
Except that for the past couple decades the patent office has issued patents for all sorts of things that were obvious any 'practitioner of the art'. Lot's of the claims in the patents Apple is suing everyone in sight for violating (phone stuff) are things that were known and done years before Apple patented them in the early 90's. Patent law needs to be drastically revised to catch up to reality. Software, wetware, genetics & such are all handled poorly by the system. Plant patent rules date back to before genetics! There are far too many examples of large corporations driving people with legitimate patents into the ground because they have more money to work with.... The purpose of patents is to stimulate, not stagnate invention. The current infatuation with 'innovation' is a step backwards, innovation has, as it's main plus': speed, marketing, cost. But you will never get from a man walking to a bicycle through innovation. But invention is expensive, time-consuming, difficult to bring to marked, fraught with failure...but it is the only route to truly new and practical devices and processes.
The first I had heard of patenting biological material was about a man who had cancer, the cancer was removed and experimented on to create a treatment for that cancer. The argument was whether the researchers could patent the patient's cells and not include him in the royalties. Imagine the crazy patent infringement cases and licensing scams if DNA bits can be patented like software. Entire families could be forced to pay a license fee because their offspring have characteristics that someone wrote as a possiblity and patented. After that, why not patent water and air? The patent system needs to be overhauled to allow inventors to create new things without having to pay someone who postulated broadly ideas without actually creating anything.
The result of owned sequences is still a human-being with human rights, so it would create either a conflict in Law, or the result of the sequence is not owned by the sequence-patent owner, because it's now no longer a product, but a human-being.