Appeals Court Says Genes Are Patentable, Because They're 'Separate' From Your DNA

from the chop-off-a-finger-and-patent-it dept

Well, this is unfortunate. We were quite happy with US district court judge Robert Sweet last year for making it clear that isolated genes are not patentable material in the Myriad Genetics case. This was one of those annoying patent situations where so many people had just assumed that genes were patentable for decades, without a single court testing that theory out. So industries were built up around the idea that genes could be patented. Thankfully, Sweet didn’t let that bother him in pointing out that gene patents “are directed to a law of nature and were therefore improperly granted.”

Of course, as expected, Myriad appealed, and even the Justice Department weighed in, saying genes shouldn’t be patentable. However, the results of the appeal are in… and the Federal Circuit appeals court (CAFC) has reversed the lower court and said that patenting genes is just fine. The reasoning is bordering on ridiculous. The court effectively states that because isolated genes are isolated rather than a part of the full DNA strand, they are not “found in nature.”

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. Native DNA exists in the body as one of forty-six large, contiguous DNA molecules. Each DNA molecule is itself an integral part of a larger structural complex, a chromosome. In each chromosome, the DNA molecule is packaged around histone proteins into a structure called chromatin, which in turn is packaged into the chromosomal structure….

Isolated DNA, in contrast, is a free-standing portion of a native DNA molecule, frequently a single gene. 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.

Later, it reiterates that separating out these genes make them somehow “different” and not a part of nature:

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.

Basically, they seem to be arguing that because a severed finger is not attached to a hand, the finger is not naturally occurring, and, thus, is patentable. Think about that. The dissenting judge in this ruling used a slightly less gruesome analogy, saying that the majority was basically saying that while a tree occurs in nature, snapping a leaf off the tree makes that leaf patentable.

The one good thing about the ruling is that it still rejects parts of Myriad’s patents, but for other reasons, not because they’re unpatentable parts of nature. The dissenting opinion from Judge Bryson (starting on page 88 of the ruling) is well worth reading. It starts out by attacking the problem with common sense, saying that if you were to ask someone if genes should be patented, they would answer, “Of course not. Patents are for inventions. A human gene is not an invention.” But then Bryson goes on to discuss the more specific points raised by Myriad. First, he points out that Myriad didn’t even really “invent” the key parts here:

At the outset, it is important to identify the inventive contribution underlying Myriad?s patents. Myriad was not the first to map a BRCA gene to its chromosomal location. That discovery was made by a team of researchers led by Dr. Mary-Claire King…. And Myriad did not invent a new method of nucleotide sequencing. Instead, it applied known sequencing techniques to identify the nucleotide order of the BRCA genes. Myriad?s discovery of those sequences entailed difficult work, and the identified sequences have had important applications in the fight against breast cancer. But the discovery of the sequences is an unprotectable fact, just like Dr. King?s discovery of the chromosomal location of the BRCA1 gene.

From there, Judge Bryson points out that an isolated gene clearly is a part of nature, and thus unpatentable:

Myriad is claiming the genes themselves, which appear in nature on the chromosomes of living human beings. The only material change made to those genes from their natural state is the change that is necessarily incidental to the extraction of the genes from the environment in which they are found in nature. While the process of extraction is no doubt difficult, and may itself be patentable, the isolated genes are not materially different from the native genes. In this respect, the genes are analogous to the ?new mineral discovered in the earth,? or the ?new plant found in the wild? that the Supreme Court referred to in Chakrabarty. It may be very difficult to extract the newly found mineral or to find, extract, and propagate the newly discovered plant. But that does not make those naturally occurring items the products of invention.

The same is true for human genes.

This case is far from over. It seems likely that CAFC will quickly be asked to rehear the case en banc (with the full slate of judges in the court, rather than just a panel of three), and after that it will likely go to the Supreme Court. Still, it’s unfortunate that CAFC went this way, and hopefully a later ruling rejects this momentary lapse of reason.

In the meantime, it’ll be important to pay close attention to what happens in the “sister” case to this one, Prometheus Laboratories v. Mayo Collaborative Services, in which there’s a question of whether or not diagnostic tests can be patentable. In that case, like this one, CAFC said diagnostic tests are patentable, and that case has now moved on to the Supreme Court, which will likely hear the case in the fall. That may be a precursor to the final result in this case.

Filed Under: , , , , ,
Companies: aclu, myriad genetics

Rate this comment as insightful
Rate this comment as funny
You have rated this comment as insightful
You have rated this comment as funny
Flag this comment as abusive/trolling/spam
You have flagged this comment
The first word has already been claimed
The last word has already been claimed
Insightful Lightbulb icon Funny Laughing icon Abusive/trolling/spam Flag icon Insightful badge Lightbulb icon Funny badge Laughing icon Comments icon

Comments on “Appeals Court Says Genes Are Patentable, Because They're 'Separate' From Your DNA”

Subscribe: RSS Leave a comment
107 Comments
xenomancer (profile) says:

DNA, with Logic

Let me get this straight:

A gene (or, piece of DNA) is patentable because it isn’t the whole DNA strand. Which implies that discrete segments of genetic code that do not constitute the whole of the genome involved are therefore not inherently “found in nature.” So, what the fuck happened to the RNA and/or protein that many of these genes code for? Hell, HIV is a RNA retrovirus. Can I patent the DNA mirror image that hijacks lymphocytes? Did ANY of these judges EVER bother to think beyond “that’s one of those evy-dency acronyms we like to use a lot [/Shatner], and it can’t be natural because we use it, like (a) tool(s)” while reversing the logical lower court ruling?

Why is DNA suddenly being considered in a vacuum? I’m pretty sure there’s a bit more to it than “we have DNA, and cells ‘just work'[/sarc].”

chris says:

Re: DNA, with Logic

I think too many judges fall victim to the “appeal to consequences” fallacy. They have in the back of their heads that ruling against a company might hurt the economy, so instead of simplify considering a question of law, they are considering it while having a bias in favor of helping a company make money.

You can see it in many judicial opinions, a judge states that if he were to rule this way, this undesirable thing may happen. But what is desirable is the exclusive prerogative of a legislature.

Zot-Sindi says:

/tinfoilhat

so how long before we start patenting actual DNA and complete the slide down the slippery slope of patent despair? (oh you can’t marry them without permission/license to do so otherwise you’d be infringing on their family DNA patent)

hey it sounds stupid and crazy but so does what they are trying to do now and when you give a mouse a cookie…..

fb39ca4 says:

While they’re at it, they need to set a precedent for what is considered patent infringement. While I do not support genetically modified organisms, they do seem patentable to me and I don’t have a problem with that. (It will just slow down innovation in that area which I see as good, and people will just pirate the seeds. Hmmm, that’s a lot of similarities there, but that’s another story.) However, I do have a problem with biotech companies suing farmers whose crops got inadvertently cross pollinated by the wind with patented GMO crops from neighboring farms for patent infringement. Ideally, if the “infringement” occurred due to nature, then it should be nobody’s fault and the case should just get thrown out of the court. (Or the biotech companies could always try suing Mother Nature, but good luck with that.) And anyways, I thought patents were to stop one company from ripping off another’s idea and selling it. I wonder how the consumer got involved in patent infringent…

eric says:

Re: Re:

Patents are a contract with the government which for the right to prevent somebody using your invention you must fully disclose the technology behind your invention.

The idea that biotech companies are suing farmers for accidental contamination is a lie perpetrated by the anti-GMO crowd. Such lawsuits are not allowed under US law.

Anonymous MadScientist says:

fingers and hand

I really loved that finger-severed-from-the-hand analogy! +1 internets ossum.

I am now attempting to patent human excrement, because it is obviously not found in nature and is separate from the intestinal system producing it. Therefore, in the future, I will be rich, rich, rich from these giant mountains of crap! Ah hahahahahahahaha! *ominous thunder crash*

Vic Kley says:

Re: fingers and hand

So you will become the head of the Stank of America, where all deposits are made not earned.

You will give a whole new meaning to the smell of success!

I think you may well end up a spokesman for the Tea Party, for its your kind of thinking taken to an extreme that has these bozos playing with themselves instead of minding the business of the people.

aldestrawk says:

Describing a gene as not ever existing separately in nature from a much larger DNA molecule ignores four things that I can think of offhand.

1). After transcription to RNA, the translation machinery that is used to make proteins during gene expression chemically isolates a gene. That is not to say all the covalent bonds to the larger DNA molecule are cleaved, but that the chemical behavior of the DNA fragment that is a gene is isolated.

2). the existence in nature of restriction enzymes that do cleave DNA molecules at specific sites.

3). Recombination, both meiotic and mitotic, on the same chromosome. This most commonly involves groups of genes but recombination where a single gene is involved is theoretically possible.

4). Transposons. I don’t know enough about genetics to know if a single-gene transposon has been discovered. Regardless, it shows that a DNA molecule is not the unbroken set of genes as characterized in this ruling.

Anonymous Coward says:

Why stop there? My DNA was created by me so therefore I can now apply for copyright on my specific DNA. Of course that means that anyone taking a DNA sample from me would be making illegal copies of my DNA and therefore committing copyright infringement unless I license it to them. Imagine the field day defense lawyers would have with that for their defendants who were convicted based on DNA evidence where they didn’t consent, or license, their DNA to the police forensic team that illegally copied it. Want me to donate blood? Pay me a license fee. Need me to donate a kidney? Well that is going to require a site license. Need 1/3 of my liver? That is going to require a distribution license since you will be making copies of my DNA when the liver cells replicate themselves within your body. That girl you knocked up that one drunken night you didn’t double-bag it? She can forget about child support as she will surely owe you more than you owe her because it costs a fortune to obtain a lifetime license! Imagine the possibilities! Thank you American legal system for the intellectual property laws gone mad!

alternatives() says:

Re: Re:

My DNA was created by me so therefore I can now apply for copyright on my specific DNA. Of course that means that anyone taking a DNA sample from me would be making illegal copies of my DNA and therefore committing copyright infringement unless I license it to them

How about this:

Can one find medical care or health care insurance that does not have a clause which states ‘Hey – you give us the right to do with your DNA as we see fit’.

If all policies have such a clause – can one thusly smackdown mandatory healthcare for stepping on your rights?

Prisoner 201 says:

Re: Re: Re:

Only if you have a valuable, patented gene. For example immunity to some disease or other, or reduced risk of cardiac disease.

Pharma will lose money on medications if you procreate with a partner also carrying these healthy genes, and as such you will have to pay a licencing fee (ransferred to your child when it reaches maturity) as well as a one-time administrative fee in order to legally procreate.

So yeah, licence to fuck.

G Thompson (profile) says:

I’d really like to know how the US Pharma Corps are going to deal with this when only the USA considers any parts of human DNA be it a subset of gene[s], or the whole, as absolutely NON Patentable since the obviousness is that they are part of Nature.

What this will mean is that the rest of the world will be able to achieve benefits from innovation in a quick and efficient manner, whereas the USofA, as it is in most technical areas nowadays, will be embroiled in a litigious quagmire of unfathomable depth.

Good luck having Any Gene patents allowed outside of the USA, and most governments around the world wont give 2 craps whether they are breaching so called international patent diplomacies/rules by not applying them. And the USA’s normal stick waving threats of economic sanctions are seriously not going to work much if at all anymore.

G Thompson (profile) says:

Re: Re:

Crud..

The first paragraph should read
I’d really like to know how the US Pharma Corps are going to deal with this when THE REST OF THE WORLD considers any parts of human DNA, be it a subset of gene[s], or the whole, as absolutely NON Patentable since the obviousness is that they are part of Nature.

I blame it on being a Saturday here 😉

person who is familiar with molecular genetics says:

This article is misleading

This article is misleading because it does not mention the background leading up to the initial suit by Myriad. As I understand it, Myriad sued scientists at the University of Pennsylvania for using a method that Myriad developed and patented. I would be willing to bet that Myriad spent a considerable amount of money developing the method for detecting mutations in the BRCA1/2 genes that predispose women to breast cancer. Therefore, it is understandable that they would like to profit of their investment. The scientists at the Penn infringed on Myriad’s patent’s by using a their method and profiting off it without paying Myriad royalties.

With that background in mind, this article misleads further by not explaining that it is really a method that is in dispute, not an “isolated DNA” molecule. I understand that without considerable knowledge in molecular genetics, it may hard to parse through all the terminology in the case. I have never heard anyone refer to any type of DNA as “isolated DNA”. I suspect that at some point in the case, a lawyer invented that terminology which is why this is confusing to many people.

I did some quick searching online but could not determine specifically what “isolated DNA” represents. I’m assuming it represents cDNA of the BRCA genes but I’m not entire sure about that. While cDNA itself is naturally occuring, and is commonly used in a many laboratories for various types of genetic analysis, I do not understand why the court would get so hung up on it in this case. Rather, I would have guessed the court would have focused on Myriad’s knowledge of the mutations (single nucleotide polymorphisms) that can indicate a higher risk of developing breast cancer. Perhaps Myriad’s lawyers thought that by focusing on the cDNA/”isolated DNA” terminology would raise their chances of a victory.

I do not think that Myriad’s win in this case is anything to be alarmed at. Their research has had far reaching implications in breast cancer research and they deserve to be rewarded for their work. I believe the main problem with patents and/or cases like this is that the people (patent officers or judges) while highly educated in their respective fields lack knowledge in highly specialized applications like this. A perfect example of a lack of knowledge is when Apple sued Microsoft for copying their windows GUI. At the time of the trial, most people, including the presiding judge, were very unaware of how computers worked. It was easy for MS’s lawyer to convince the judge that MS Windows was different enough from Apple OS that it did not infringe. My essential argument here is that we could benefit from specialized courts/patent offices that are aware of what they are actually reviewing.

Josiah says:

Re: This article is misleading

> this article misleads further by not explaining
> that it is really a method that is in dispute,
> not an “isolated DNA” molecule.

It’s not just a “method.” It’s also product-by-process claims at issue.

When protection is extended to a widget manufacturing process, often protection is extended to the widgets that come out at the end if the claims in the patent are drafted to do so.

In the United States, patentability of a product-by-process claim extends to the product itself and does not depend on its method of production.

The company was using the threat of their patent to stop others from making breast cancer genetic screening tests and to prevent physicians from using competitors’ tests.

No matter what method was used to isolate the gene at issue they claimed that the tests would infringe because one necessary product — the isolated gene, itself — was protected under their patent under one or more claims.

Josiah says:

Re: This article is misleading

> this article misleads further by not explaining
> that it is really a method that is in dispute,
> not an “isolated DNA” molecule.

It’s not just a “method.” It’s also product-by-process claims at issue.

When protection is extended to a widget manufacturing process, often protection is extended to the widgets that come out at the end if the claims in the patent are drafted to do so.

In the United States, patentability of a product-by-process claim extends to the product itself and does not depend on its method of production.

The company was using the threat of their patent to stop others from making breast cancer genetic screening tests and to prevent physicians from using competitors’ tests.

No matter what method was used to isolate the gene at issue they claimed that the tests would infringe because one necessary product — the isolated gene, itself — was protected under their patent under one or more claims.

Anonymous Coward says:

Re: This article is misleading

Your entire argument boils down to “THEY DID THE WORK THEY DESERVE TO BE GIVEN MONEY FOR THEIR WORK THEY ARE HARD WORKING PEOPLE UNLIKE THE LEECHES AT PENN”.

If this is true, then it’s a matter between Penn and Myriad. I don’t see why an entire new class of patents needs to be created with far-reaching implications just because two groups of scientists are throwing a hissy fit about which group was being profitable with the genes first. Ideally, if both parties can prove that they discovered the same method independently, then it should be a non-issue. You are right about the terminology of “Isolated Gene”. Most patents actually have no real place in being a patent, they are only made that way by having the language around them twisted about to make something that only seems related to innovation, despite if any real innovation ever took place.

Mike Masnick (profile) says:

Re: This article is misleading

This article is misleading because it does not mention the background leading up to the initial suit by Myriad

No. You claim it’s misleading because it doesn’t bring up issues totally irrelevant to the suit that you wish to bring up.

As I understand it, Myriad sued scientists at the University of Pennsylvania for using a method that Myriad developed and patented.

Yes. But the question is whether or not it should be patentable. If, as argued, it is not patentable, then it doesn’t matter that someone else used it.

I would be willing to bet that Myriad spent a considerable amount of money developing the method for detecting mutations in the BRCA1/2 genes that predispose women to breast cancer.

Meaningless. If it’s not patentable, it doesn’t make an ounce of difference how much time or money was spent developing. It’s misleading to suggest otherwise. Patents are not for how much money were spent developing something. If that was the case, whoever spent more would get the patent. But I see no indication of that in the rules anywhere.

Therefore, it is understandable that they would like to profit of their investment.

Fallacy 1: that they would like to profit from something means they deserve a patent. I mean, seriously, that makes no sense. I’d like to profit from my work, so I automatically deserve a patent? That’s ridiculous. And wrong.

Fallacy 2: The only way to profit from something is to have a patent on it? Also false.

Seriously. For you to argue my article is misleading and then spew this kind of crap…

The scientists at the Penn infringed on Myriad’s patent’s by using a their method and profiting off it without paying Myriad royalties.

Again, the WHOLE POINT of the lawsuit is to determine whether or not the stuff is patentable. If it’s not patentable, your statements are meaningless.

None of what you’re stating matters to the issue at hand: are the genes patentable.

With that background in mind, this article misleads further by not explaining that it is really a method that is in dispute, not an “isolated DNA” molecule. I understand that without considerable knowledge in molecular genetics, it may hard to parse through all the terminology in the case. I have never heard anyone refer to any type of DNA as “isolated DNA”. I suspect that at some point in the case, a lawyer invented that terminology which is why this is confusing to many people.

This is a misleading bit of bullshit by people who wish to support patenting genes. They pretend that the method is separate from the gene. It is not.

I do not think that Myriad’s win in this case is anything to be alarmed at. Their research has had far reaching implications in breast cancer research and they deserve to be rewarded for their work

Again, there are lots of ways to be rewarded that do not involve a patent and patents are not given just because research has implications. Honestly, can you be any more misleading in your own statements? Do you even know how the patent system works?

I believe the main problem with patents and/or cases like this is that the people (patent officers or judges) while highly educated in their respective fields lack knowledge in highly specialized applications like this.

And you appear to know nothing of the patent system. So please do not mock others for not knowing stuff.

A perfect example of a lack of knowledge is when Apple sued Microsoft for copying their windows GUI. At the time of the trial, most people, including the presiding judge, were very unaware of how computers worked. It was easy for MS’s lawyer to convince the judge that MS Windows was different enough from Apple OS that it did not infringe. My essential argument here is that we could benefit from specialized courts/patent offices that are aware of what they are actually reviewing.

Your knowledge of the OS lawsuit is also lacking, but that’s a tangent.

Separately, we have a specialized patent court (the one that made this ruling) and all its shown is that it’s biased towards more patents all the time. It’s been a disaster for innovation.

6 says:

Re: Re: This article is misleading

Mike just FYI the case had a lot of claims at issue in Myriad.

1. There were claims to isolated DNA as such.

2. There were claims to methods of detecting mutations in certain DNA.

3. There were claims to screening methods.

The court found:

1. is patentable
2. is not patentable and
3. is patentable

6 says:

Re: Re: Re:2 This article is misleading

Idk I didn’t bother to reread your OP today. I just read some comments today.

In any event it’s a patent protectionist court doing what patent protectionist courts do. Literally you will notice that at least one judge was on board in part for keeping genes patentable literally to protect the patents the office has been issuing. So don’t be too let down with the court having ruled this way, be let down that there even is such a court.

Crime (user link) says:

Patents have been obtained for the gene as an isolated DNA molecule, and for methods that rely on the assessment of genetic status to determine medical risk. Genetic testing can be used to identify disease susceptibility, establish diagnostic status, and design personalized therapeutic regimens in medical care. While many gene patents are managed so that wide access is facilitated, access to certain gene portfolios is quite restricted, preventing
the development of a robust genetic testing climate for the relevant clinical conditions; this is most clearly observed for the BRCA1 and BRCA2 genes. This constriction affects patients seeking to make genetically-informed medical decisions, health care providers offering genetic testing options, and scientists performing genetic research. In the absence of explicit facilitated access to critical genes that are under restrictive patent management, the central question of patent eligibility and whether such patents are valid will continue to be litigated. This is a period of renewed attention to the issue of patentable subject
matter in the life sciences.

Liz says:

Sounds like a perfect Kickstarter project to me. We have what, somewhere around 25,000 genes dedicated to coding specific proteins? Start up a crowd sourced project to patent every one that’s been discovered and mark them all as public domain. Plus write the patents broad enough that any related genetic code derived from each sequence of ACTG is covered under each of the base genes.

If corporations can patent and lock up publicly funded (as in tax payer provided for government funds) research and discovery, why not regular folks?

Jerry says:

Re: Is this symetric?

That would seem to be the courts ruling.

A gene in isolation is patentable. Which would prevent other companies from injecting the isolated gene into their plant/animal/etc..

However if it is present in DNA through natural processes then it is not isolated so the patent doesn’t apply.

Which means the gene leakage Monsanto loves to crush farmers on it not covered by their patent and they can go get stuffed.

I wonder if the Judges actually considered the full ramifications of their ruling.

AJ says:

Two can play that game

Ok so I own some very commercially valuable pigs. You claim to own the patent for one or more genes that occur in my pigs. But you patents cover isolated genes.

I’m sorry but your patents are not infringed by my pigs, as my pigs have no isolated genes. My pig’s genes occur only in DNA sequences. Your patents specifically do not cover genes within DNA sequences.

In any game of dirty rules or just plain stupidity, there can always be two players. Hang these fools with their own rope.

trish says:

are us patents enforceable everywhere?

or just in the us? It seems to me if american companies now think they can own *life* maybe the rest of the world will eventually turn away and hand-signal each other *craaaazyyyy*.
You know, it’s a good thing our ancestors from the past 6000-8000 years did not have patent systems. Imagine: Fire, patented. Wheel, patented. Gravity, patented. If each discovery got held back for 20 years, then by my calculations… it would be 1352.

Jim D (profile) says:

It's all mine!

Hey folks, I just took a rock out of my garden and isolated it from the ground, so I’m about to register a patent against it. All you fuckers living on earth, touching the ground, get the hell off! It’s all mine, bitches, and you’re violating it!

Ditto for kids. My kids is currently isolated from the others (only child, currently at home) Patenting him will make all the kids belong to me… and I’m hungry.

Anonymous Coward says:

For those who may be inclined to look into this issue in greater detail with the benefit of background, technical information that much more comprehensively explains what actually transpires at each step of the way, Patent Docs by Mr. Kevin Noonan is an invaluable resource.

While one is always free to disagreee with Mr. Noonan’s views, at least any such disagreement would be based upon a much more comprehensive understanding of what actually transpires when sequences are culled out from their naturally occuring environment.

Perhaps the most useful service rendered thus far by the CAFC is that through the diversity of the judges’ opinions, keystone issues are coming into clearer focus devoid of sound-bite rhetoric.

abc gum says:

Re: Re: Re:

“Your whole post is sound-bite rhetoric. Not a single substantive sentence.”

I believe he is insinuating that some or all posts here are from uninformed people and that if they wish to debate the issue then they should educate themselves.

Sounds like an Appeal to Authority fallacy.

Anonymous Coward says:

Re: Re: Re: Re:

No, just a suggestion that becasue this case involves an esoteric technical field, it helps to read the views of persons who are intimately familiar with both the technical field and the law.

I know the law like the back of my hand, but I do not have any meaningful degree of familiarity with the technical field.

darryl says:

Yes, it is as usual misleading.

They are not saying “if you cut off your finger” rubbish Mike, and you should well know that !!! You probably do, but cannot see past your own bias.

The court is exactly correct, think about all the other chemicals that naturally occur in the body, all the hormones, and compounds such as Serotonin, they are naturally occuring, but they have been isolated, identified and synthesised and the technology to isolate, identify and synthesise is what is patented.

Steel is natural as well, so is silicon, are you saying if you can isolate, refine and create from those raw and natural products that you cannot patent it ? because it is natural ???

Next time you type of your keyboard Mike, think about that plastic and what it is made of, its basically carbon !

So how can you patent plastic, or anything made of plastic, because it’s made from a common element ? just arrainged in a specific or processes, isolated and INVENTED, and therefore patented.

Anonymous Coward says:

Re: Yes, it is as usual misleading.

“the technology to isolate, identify and synthesise is what is patented.”

Did you read the article? Because if you had, you would have discovered that it is in fact the end product (isolated DNA) that is being patented here, not the technology.

“Steel is natural as well”

In what sense? You can’t mine it, you have to make it.

As you say, something has to be INVENTED. Not only did Myriad not figure out where in the overall DNA sequence it was, they also did not figure out how to isolate it. So what exactly did they INVENT?

darryl says:

Re: Re: Yes, it is as usual misleading.

yes, just like when the person invented the battery, they patented chemestry.

Or when someone developed DDT, or a vaccine, or a chemical, or petrol, or cooking for that matter.

You do not patent ‘solid state technology’ nor do you patent “chemistry’ or ‘science’ or electronics, you patent A METHOD of doing something.

When you patent a new type of air plane, you do not patent the raw material you use, metal and plastic or whatever.

You patent how you assembled those common components to create something new and innovative and able to be patented.

How simplistic are you people !!!!!

Do you honestly have trouble grasping that simple, fundamental concept ??? REALLY ????

It is very sad to see… I guess that is what you get from being re-programmed by masnick, and not having to ever think for yourself again…

Anonymous Coward says:

Re: Re: Re: Yes, it is as usual misleading.

The problem is that these are simple patents on fundamental ideas that do not need patents to originate. People can isolate genes without patents and have been able to perfectly fine without them. Patents only get in the way of the process. We don’t need patents on methods of isolating genes to be able to isolate genes.

Anonymous Coward says:

Re: Yes, it is as usual misleading.

No.

“Myriad did not invent a new method of nucleotide sequencing. Instead, it applied known sequencing techniques to identify the nucleotide order of the BRCA genes.”

If you want to make an analogy, this is like patenting water because you were the first to determine that its chemical formula is H2O.

Or to use an astronomy analogy, instead of patenting a telescope, these guys are trying to patent Neptune.

Ralphoo (profile) says:

Re: Re: Patenting Neptune

And what a good idea that is! I have personally done the same with Saturn. Act now, and a license to view my patent-protected planet through a home-based telescope will cost you only pennies a day. Professional astronomers, you may be surprised how easy it is to obtain a multi-year, large-telescope license for yourself and your staff.

Ralphoo (profile) says:

Re: Re: Judge's DNA

I do believe you’re onto something.

The life of humans is filled with these unfathomable absurdities. Maybe we should let some other primate, or dolphins or whales, take a shot at running the world. (Full disclosure: I own the patent rights to certain dolphin genomes. So far I have not moved to assert my rights over their existence, but someday they will have no choice but to make me their king, or face bankruptcy. Their assets can be seized by the court. A major precedent was set in Ralphoo v Whale, 2007. If that deadbeat cetacean hadn’t moved its funds into undersea havens, I would already be living on the proceeds.)

whatisdisplayname says:

gene "patenting"

A natural gene, whether part of DNA or isolated, occurs in nature as surely as any cell in a persons body. Cells are part of tissues and organs, and can be isolated, too. You can patent only an invention, something you created and didn’t occur in nature previously. You can patent the PROCESS of isolating a gene. That is a creation, not previously occurring in nature. The same is true of a diagnostic test. A new man-made gene could be patented. But, you can’t patent a discovery. You can’t patent natural genes or natural DNA.

Anonymous Coward says:

Design Versus Instance

This is ridiculous. The normal sense of what a patent is, an innovative design, has been completely lost. There is no element of design in play here at all.

In fact, this is the complete opposite of design. It is purely about implementation of process. That is, the fact that something has been isolated is what has been patented.

staff (profile) says:

torturing

“To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries”

Does the invention “promote the Progress of Science” and is it “useful”? If so, stop torturing yourself and the rest of us and give us some peace.

patent litigation (user link) says:

ridiculous

I agree that the CAFC’s ruling was ridiculous (though expected). For both legal and policy reasons, I don’t think the Myriad patents should stand. I’m waiting for the Supreme Court to weigh in; hopefully it will issue a rational opinion. I wouldn’t place too much hope in the Prometheus outcome, though; ludicrous though I think those patents are, they’ve received quite a bit of support, and they’ve also been credibly distinguished from those at stake in Myriad.

Sheogorath says:

Sue my Family!

So if I married a woman and we had children together, could we be sued for making unlicensed copies of these genes? Could our sons and daughters be sued for possessing those unlicensed copies? Where will this madness end if companies are allowed to patent the genes of the parotid glands, for example? Can you imagine getting sued for salivating?

Anonymous Coward says:

Re:

The reason this is BS is because people well versed in law and people well versed in the technical process of DNA extraction and isolation tend to argue along the same good sense lines that anyone with folk understanding argues with.

There are some things that folk understanding simply does not work for. This is not one of them.

Both my law lecturer and my biological anthropology lecturer whose own research was entirely in this field believed that patenting genetic material is outrageous for the same good sense reasons you see here on this page.

The big clue here is that there was one hegemonic view and that was that this kind of thing could not and should not be patented. All the movement in the other direction relies on trying to bamboozle people into thinking otherwise by telling them it’s over their head but for people whose head is not over, it’s really only people with something to gain who have broken away from the mainstream and good sense thinking.

This is the hallmark indicator that an issue is not above good sense and that people who are suggesting otherwise are simply employing sophistry and spin.

Anonymous Coward says:

Yes, it is as usual misleading.

Did you realize that without cooking human evolution would have been impossible? Cooking significantly reduces the costs of consuming and absorbing nutrician and calories from our food. Cooking food allows us to have a relatively compact and low cost gut yet still have a huge and costly brain.

Good thing no one patented it way back in the day, although some troll finally got around to patenting the process of toasting bread this century.

Add Your Comment

Your email address will not be published.

Have a Techdirt Account? Sign in now. Want one? Register here

Comment Options:

Make this the or (get credits or sign in to see balance) what's this?

What's this?

Techdirt community members with Techdirt Credits can spotlight a comment as either the "First Word" or "Last Word" on a particular comment thread. Credits can be purchased at the Techdirt Insider Shop »

Follow Techdirt

Techdirt Daily Newsletter

Techdirt Deals
Techdirt Insider Discord
The latest chatter on the Techdirt Insider Discord channel...
Loading...