Australian Court Says Genes Are Patentable

from the sweat-of-the-brow? dept

While the US Supreme Court will soon be weighing in on whether or not genes are patentable in the Myriad Genetics case, we’ve also been following a similar case in Australia. There, a bunch of cancer patients took Myriad to court, arguing that the patent on BRCA1 is invalid (this same gene is part of the US case). Unfortunately, the court has decided that genes are, in fact, patentable if they’ve been isolated. This is always the key point of contention with gene patent supporters. They claim that it’s the fact that they can separate the gene that makes their work patentable. In some ways this is an odd sort of “sweat of the brow” argument for patents — and here, the judge is buying the argument completely. He says that patenting genes in the human body would be a problem… but isolating them magically makes it a different story.

There is no doubt that naturally occurring DNA and RNA as they exist inside the cells of the human body cannot be the subject of a valid patent. However, the disputed claims do not cover naturally occurring DNA and RNA as they exist inside such cells. The disputed claims extend only to naturally occurring DNA and RNA which have been extracted from cells obtained from the human body and purged of other biological materials with which they were associated.

This still seems ridiculous to me. If others figure out how to get an isolated gene as well, why should that be subject to a patent? Hopefully this is not a preview of the US Supreme Court’s upcoming ruling.

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Companies: myriad, myriad genetics

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Comments on “Australian Court Says Genes Are Patentable”

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63 Comments
Anonymous Coward says:

Re: Re:

Other good questions:

Does patenting a gene prevent anyone else from sequencing the organism?
Does patenting a gene prevent anyone else from isolating genes from the organism?
Most proteins are coded for with multiple genes; does patenting an individual gene block anyone else from sequencing those proteins?

Anonymous Coward says:

I’ve wondered if they use these rulings to entice research facilites to set up shop in hopes to create a tech hub.
For example, look at East Texas, how many companies have empty offices there just to use it for litigation? By giving corporations what they want they hope to keep them within their borders and providing them prestige/taxes/jobs and whatnot.

Anonymous Coward says:

I wonder how long it will take them to patent the whole body..
It is fucking insulting for them to think they can patent the very materials we’re made up of.

I mean look at it this way you’re a scientist and you decide to isolate some genes but you’re told you will be sued for messing with you own genes.

I would support putting them all in a survival cage and making them duel to the death with wiffle bat.

Divide by Zero (profile) says:

Ok seriously, Australian govt/judges etc, what the fuck is wrong with you. This better get overturned and the judge disqualified from the human race for being a total drop kick. And keep your sticky fingers off my genes, thank you very much. Anyone else getting an icky, slightly violated feeling from these types of shenanigans?

Anonymous Coward says:

Re: Re:

As a cancer patient and a cancer patient’s spouse, the idea that anything holding back or restricting or discouraging anything to do with progress on the research front is criminal.

It’s 2013. Cancer treatment (and potential treatment for other life threatening diseases affected by a ruling like this) should not entail the human wreckage it currently does. It should not be acceptable on any level.

Grotesque and despicable.

G Thompson (profile) says:

Re: Of course genes should be patentable

sigh I agree with you too.

It seems that no one actually has read the actual case and the conclusion and what the whole thing was for and NOT for

[at 136]” There is no doubt that naturally occurring DNA and RNA as they exist inside the cells of the human body cannot be the subject of a valid patent. However, the disputed claims do not cover naturally occurring DNA and RNA as they exist inside such cells. The disputed claims extend only to naturally occurring DNA and RNA which have been extracted from cells obtained from the human body and purged of other biological materials with which they were associated. [emphasis added]”

And as Justice Nichols states “[He] must apply the law as explained in NRDC” [at 135]

This was a strange case since the actual Applicant(s) has ceased to exist now and was basically formed for the sole purpose of taking this case to Court. Personally based on the evidence presented and what the whole case was about there was no other conclusion that could of been reached though this doesn’t mean that Human genes can be patented just that DNA/RNA that was first found in the Human body and then manipulated and transformed into something different can be.

ie: Creative transformation based on sweat of the brow and therefore absolutely patentable. legally correct, I will leave it up to others if it is ethically correct.

aidian says:

Re: Re: Of course genes should be patentable

So maybe I’m stupid, but after this:

“The disputed claims extend only to naturally occurring DNA and RNA which have been extracted from cells obtained from the human body and purged of other biological materials with which they were associated.”

what you’re left with is DNA and RNA that came from the human body. Isolate, purified even, only the good parts, but how is that not patenting something that exists inside the human body? Is it being transformed into something new? Because otherwise it seems like the genetic equivalent of patenting boneless skinless chicken breasts or something. That can’t really be the state of the law?

shane (profile) says:

Re: Re: Of course genes should be patentable

“…just that DNA/RNA that was first found in the Human body and then manipulated and transformed into something different can be.”

It’s not being transformed into anything else. It is still human DNA from a human body.

Most people here are pretty familiar with the basics of this and similar suits, and have very good reasons for not wanting this sort of IP. You put people who do any sort of gene therapy at risk of lawsuit for no good reason, no matter what method they use, because the gene they are working on is patented.

This is absurd on its face.

Anonymous Coward says:

So what is going to happen once every human gene has been isolated and patented? All research on the human genome and curing genetic diseases will grind to a halt thanks to all the fees corporations will slap on any attempt to study human DNA. Is that really the bleak future these judges want to bring about with these short-sighted rulings?

Mike Maxwell says:

I support everyone else’s right to use my genes for cloning, or anything else for that matter.

Free information for all!!
Privacy for none!!
Make everything public!!

WE have earned it, after all.

In the meantime, I hope you don’t mind if I help myself to your bank account. It’s just information, after all.

In all seriousness: This is an issue that is far from settled. The debate over the patenting of genes is the first darkening cloud on the horizon. Anyone who thinks that the issue of ownership over information has a clear “right” or “wrong” side, is scarcely worthy of consideration.

shane (profile) says:

Re: Hu-Whah?

I can’t decide what you’re talking about.

Knowledge about genes in general is simply knowledge about something naturally occurring. You can’t patent a rock, and you can’t patent a gene. At least, not and remain honest.

Privacy is more like, you can’t steal and look at MY genes, which indeed has an application if we are moving to an insurance based medical system where risk determines whether or not you get treatment.

Michael K. Verble (user link) says:

News of Death of Judith Keep in june 2004, 9th Us District, 4th Ca. District judge

This was my trial judge in case 04-cv 537K(JFS), her preliminary judge forfieted in April 04! The judge of jurisdiction faked her death &, split with my lawsuit money! Her pteliminary judge later tried to have me set up with said money in Kuala Lumpur, Malaysia with, some of Anan Kofie’s gangsters handling illegal offshore US dollars while ripping off muslim community chest operations! Or,its conterfiet! Either way the Embassys Gen. Consel &, Ambassador have done nothing to examine the serial numbers of said bills since 09 when, I went out of my way to hook them up with samples asking for a personel with higher than my Secret Service with TREAS, a CIA prrsonel! They’re just trying to get me killed! Now they’ve stold my pension money again as when I first encountered Kofies gangsters in 09! They stold my pension money from 05-10, kidnapped me ( as I’ve not been back to the states since May of 08)! Got stabbed in back in Hong Kong in 07, pieces of feces stold my pension money then too! A HK police passed the Chiv they stabbed me with! US: Courts stold said lawsuit money in Apellate court case 01-55852,US Suprene,, case 02-5513 &, US 9th District,Ca. 4th District, San Diego, which was so they can”t overturn the case.of the Supreme Court! Now I must sue the Attorney Gen.for failure to prosecute! B.S. runs high since my appointment to the Attorney Gen. office in 07 with my Ca. Bar! Try surviving with just the devils advocate witout millions of let alone billions of dollars in suits!…

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