Appeals Court Doubles Down: Genes Still Patentable

from the you-don't-own-your-genes dept

Well this is unfortunate, but not too surprising. After the Supreme Court rejected medical diagnostic patents in the Mayo case, it vacated the ruling by the Federal Circuit appeals court (CAFC) on gene patents in the Myriad Genetics case, where CAFC had said genes are patentable, and asked it to redo the case in light of the Mayo decision. The ruling came out today, and CAFC more or less repeated what it said in the original ruling. The same panel of three judges effectively argued that Mayo had no real impact on what it said last year, and it was sticking by its decision. The Patently-O link above has a bit more detail, or you can read the full 106 pages (pdf and embedded below), which includes all three panelists entering their opinions (one dissenting). If you read last years, you’ll find this one pretty similar, with just a few nods to why they were redoing the process.

All that really matters at this point is that isolated genes are still considered patentable. Even though people like James Watson, who was as part of the team that discovered DNA’s structure, have argued that this kind of ruling is pure lunacy, the court is sticking by its position.

The case is likely far from over and there’s a decent chance that it, too, will end up in front of the Supreme Court, where they’ll have yet another chance to smack CAFC around for being overly infatuated with letting everything in the world be patentable. First up, though, will likely be an attempt to rehear the case “en banc” (with the full slate of CAFC judges, rather than just the three-judge panel). In other words, this is far from over, but if you’re in the camp of folks who think the idea of patenting your genes is insanity, well, we’re still living in an insane world.

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Companies: myriad genetics

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Comments on “Appeals Court Doubles Down: Genes Still Patentable”

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tracker1 (profile) says:

This is lunacy...

An event in nature should not be patentable… A specific method of influencing said events could be. In this instance the gene itself, or it’s effects in various states should not be patentable… that is simply observation. A specific, proven technique for changing said gene in a living being should probably be.

Anonymous Coward says:

Re: This is lunacy...

I am not an expert in the field, but I would argue that there are only so many ‘good’ ways of adjusting the position of a hex-headed screw. That is to say, to someone skilled in that art there would only be so many approaches to consider for working with a gene within a set of living cells; some of which might be closer to your existing tools and thus the ones you would select.

” Good meaning optimized for cost and effectiveness

SilverBlade says:

So what would happen if someone was born with genes that are patented already? Does that person then become property of the company that holds the patent? Does the company have the legal right to ‘sue’ that person for being born with those genes?

I would hope to God that companies wouldn’t be stupid enough to do this incase this scenario were to happen, but I’ve seen over and over again, companies would in fact try to sue someone who just *dared* to be born with a gene that was patented.

Anonymous Coward says:

Re: Re: Re:

I am really starting to question the sanity of patenting genes. If I remember correctly from my classes in microbiology, there are conservative substitutions on genes which code for the same amino-acid, meaning: If you want to patent, say a gene coding for a small specific protein of say 1 kb, you will end up with billions of specific genetic sequences to protect your protein. And that doesn’t even start to cover that most proteins have specific sites of action and as long as the 3d-structure remains relatively alike you can get a similar response from receptors, enzymes and what-have-you. In other words: You can relatively easily make a small tweak to the genetic code without the output protein changing its actions, but still being unique from the sequences coding for the specific protein.
If a genetic patent includes all proteins with the same properties: to *beep* with software patents, you should be a genetics-patent troll, since one patent covers such an extreme amount of sequences…

Anonymous Coward says:

If you’re creating a new gene that’s one thing. But trying to patent ANY existing gene should be thrown out on the basis of obviousness. Everyone skilled in the craft knows how to sequence genes.

“The dissent indicates that ?elemental lithium (like other elements) would not be patentable subject matter, even if it could only be extracted from nature through an isolation process.? But the isolation here is not a simple separation from extraneous materials, but conversion to a different molecular entity.”

The court doesn’t think extracting lithium from a lithium compound converts it to a “different molecular entity”? They think it’s just a matter of a “simple seperation from extraneous materials?” Excuse me, but did they never TAKE chemistry? Do they think they can extract the lithium by just putting it through a flour sifter? At their next session, instead of a bottle of water, perhaps they should be provided with a bottle of hydrogen and a bottle of oxygen. Same thing, right?

“The dissent finally attempts to analogize the creation of the isolated DNAs in this case to the removal of a kidney from the human body, indicating that the latter does not create patent-eligible subject matter, hence the claimed isolated DNAs also do not. Such an analogy is misplaced. Extracting a kidney from a body does not result in a patent-eligible composition, as an isolated gene has been and should be. A kidney is an organ, not a well defined composition of matter”

A kidney is not a well defined composition of matter? I’m confused. Is the court suggesting that a kidney is not well defined, or that a kidney is not a composition of matter? Let’s face it, if someone invented a kidney and it didn’t exist in nature, it would be patentable.

staff says:

more dissembling by Masnick

“smack CAFC around for being overly infatuated with letting everything in the world be patentable”

Nonsense. The Constitution says ?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?. Therefore, if an invention is useful and promotes science, it should be patentable. It?s that simple.

Further, now more than ever small entities need strong property rights including the ability to exclude others from using our inventions without permission. Without them we cannot get funded and commercialize. Without strong property rights China and other low wage foreign nations will keep steam rolling us. Considering we create the lions share of new jobs here at home, America cannot afford to undermine us.

Please see for a knowledgeable analysis of patent issues from those who actually know something about them. All Masnick knows about patents is he doesn’t have any.

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