Breast Cancer Gene Lawsuit Argues Patents Invalid 294
bkuhn writes "The ACLU and the Public Patent Foundation have filed a lawsuit
charging that patents on two human genes associated with breast and
ovarian cancer are unconstitutional and invalid. The
lawsuit (PDF) was filed
on behalf of four scientific organizations representing more than
150,000 geneticists, pathologists, and laboratory professionals, as well
as individual researchers, breast cancer and women's health groups, and
individual women. Individuals with certain mutations along these two
genes, known as BRCA1 and BRCA2, are at a significantly higher risk for
developing hereditary breast and ovarian cancers."
I don't understand it. (Score:5, Insightful)
A sad day (Score:1, Insightful)
Re:I don't understand it. (Score:5, Insightful)
It depends. If it is a gene you yourself designed, then it is a reasonable target for a patent (or, more likely, copyright). However, if it's a gene that occurs in nature, then it makes no more sense to patent that gene than a species of plant or animal, a rock you found walking into work in the morning, an ocean or a star (stellar, not media - actually, maybe both would make sense, thought the latter isn't natural).
Re:I don't understand it. (Score:4, Insightful)
It depends. If it is a gene you yourself designed, then it is a reasonable target for a patent (or, more likely, copyright)
Combine that idea with artificial, hereditary traits (designer kids etc.), and you have people who need permission from their friendly gene provider to reproduce. Bring on the GIAA lawsuits! Can't have people passing on copyrighted genetic material without authorization!
Re:A sad day (Score:4, Insightful)
A sad day ... when parts of the human body can be copyrighted.
They can't. Neither can they be patented (which, by the way, is completely different than copyright).
What can be patented (but not copyrighted) is the process of performing diagnostic tests on a certain gene. To quote the article:
"Myriad's patents give it exclusive right to perform diagnostic tests on the genes -- forcing other researchers to request permission from the company before they can take a look at BRCA1 and BRCA2, the ACLU said. The patents also give the company the rights to future mutations on the BRCA2 gene and the power to exclude others from providing genetic testing."
This is not a good thing, but it does seem to fit within the scope of patents. This is more reason for patent reform.
Re:I don't understand it. (Score:5, Insightful)
I don't remember electing Monsanto. Perhaps we should be asking our elected officials why Monsanto is permitted to continue to exist after their numerous offenses against not just the citizens of the USA, but actually humanity. Even Wikipedia seems to have forgotten the contaminated agent orange thing :P
Re:A sad day (Score:3, Insightful)
Patent limitations (Score:3, Insightful)
You can't patent ice, snow or slush - why? Because these are naturally occuring items. You cannot patent a mathematical function (1+1=2), an obvious extension of a patent (make an iPod entirely chrome plated), naturally occuring item (wood), or something that has been in the public domain.
No one invented the genes in our bodies, so how can anyone own a patent on them? If I patent the gene that turns Breast Cancer 'off' - then can I sue men and women who possess that gene without my permission? If someone has breast cancer, and it goes into remission - can I chose to 'gather my property' by imprisoning that person and extacting the gene that I own rights too?
Crighton's book, "Next" was an excellent novel based on this entire theory. No one should have the 'rights' to any gene.
Why can someone patent something nature created? (Score:4, Insightful)
I don't think you should be able to patent discoveries, only inventions. Can a law scholar speak as to how we got to this point?
Where is Larry Lessig?
Re:I don't understand it. (Score:5, Insightful)
Re:I don't understand it. (Score:5, Insightful)
Because the elected official then turns around, quotes the Bible, and promises to lower your taxes, and you vote for him or her.
Anyone willing to limit corporate power is typically not elected, and not because Monsanto gave them money but because of tax-cut and deregulation fanaticism.
Re:I don't understand it. (Score:5, Insightful)
And this is where someone should point out that this would be an excellent reason to support government funded general scientific research.
It's expensive, offers little return on investment monetarily but could greatly benefit the populace.
Corps aren't shelling out the cash like they used to on research that wasn't going profit the shareholders within a couple of years.
Procedures (Score:4, Insightful)
It's almost certainly a patent of the procedure for isolating/identifying/testing with the genes.
This is why procedures shouldn't be patentable.
By definition, they're not inventions, but procedures.
Re:I don't understand it. (Score:5, Insightful)
Or your elected official promises to tax the rich and give you free health care, and you vote for him or her... then turns around and behaves in exactly the same corrupt way that you expected "the other team" to behave.
Despite that identical outcome, you'll pat yourself on the back that you elected the team that says the right things with Olberman cheerleading you the whole way - while Sean Hannity and his players are gnashing their teeth and decrying the corruption that was okay when it was their guys.
Montasano gets rich, the Politicians get rich, freedoms and quality of life issues suffer... but at least you get to hate those other guys.
We are so fucked.
Re:I don't understand it. (Score:2, Insightful)
Did "you" vote agaisnt that elected official? Did "you" work to campaign against that person? Did "you" campaign for another candidate? Did "you" do anything other than complain about Monsanto giving money to elected officials? If not, then yes they are "your" elected official.
Re:I don't understand it. (Score:3, Insightful)
You know, I agree that there are probably some "rights" that aren't in the constitution, and that perhaps we don't have the "right" to, but the 9th amendment was put into the constitution for a reason:
"The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."
Just because it's not specifically mentioned in the constitution doesn't mean we can't determine that we do in fact have a given right, and the founders certainly understood this, or they wouldn't have bothered to add that amendment.
Re:I don't understand it. (Score:5, Insightful)
Without some protection of a genetic discovery, it makes no financial sense for a company to actually do the research and discover which genes control an aspect of a plant or animal's composition.
Which is why most such research is done in university labs, not corporate. There has been for decades a perfectly good method of advancing scientific knowledge and turning it into usable technology: academic researchers, paid primarily with public funds, do the basic science, and that fraction of it which turns out to be commercializable gets taken up by corporate engineers. This balance started to fall apart with Bayh-Dole and Diamond v. Chakrabarty, and things have been getting worse ever since.
Re:Procedures (Score:2, Insightful)
I'm not so sure. One of the contested patents, claim 1 is:
An isolated DNA coding for a BRCA1 polypeptide...
No mention of a procedure, a method, a process, or a device used for, which is what many procedure patents have in their language.
good example of why I donate to the ACLU (Score:2, Insightful)
ACLU, PO box 96265, Washington, DC 20090-6265
Re:I don't understand it. (Score:5, Insightful)
Not my elected official, ours. While you are technically correct, attitudes like yours are self-defeating. We make them our official again by holding them accountable. We begin by making people aware of their culpability.
The greatest trick the two-party system ever pulled was convincing voters that voting for "third" parties is a waste.
Re:I don't understand it. (Score:5, Insightful)
Re:I don't understand it. (Score:3, Insightful)
Isn't the cost of the seed that people are upset about. It is the vicious seed company that first of all has the audacity to patent and license life and then has the nerve to punish farmers who dare to produce seed from their own plants. Last but not least they prosecute everyone who ever thought about buying or selling a seed and many who didn't.
There have been thousands of small shops that don't even sell seeds of any kind put out of business because Monsanto suddenly decided they were stealing their seed and threw their legal might against them. It doesn't matter if did it, if the other guy has a few billion to throw at you and you don't have a pot to piss in you lose.
Re:I don't understand it. (Score:2, Insightful)
Oh I absolutely recognize that it's a vote. It's a vote to let others decide things for you.
Re:I don't understand it. (Score:2, Insightful)
Re:I don't understand it. (Score:4, Insightful)
Re:I don't understand it. (Score:4, Insightful)
Lets not confuse this issue, this isn't about someone having a right its about taking one away.
In the case of a gene the key to isolating it is just a sequence of DNA.
It seems to me to be a pretty reasonable barrier that you can patent something you create but not something you discover.
Mathematics (even math that is really complex and so mystifies people like algorithms, software, etc), chemical compounds, genetics. These are all things that were already there waiting for someone to stumble upon them. In other words, no matter how much time and effort you spent hunting for them they are a discovery and not an invention. There is nothing to stop you from utilizing your discovery (or sharing it for that matter but somehow I think companies would quickly find themselves hobbled without being able to read about the discoveries of others) to make inventions but the discovery itself should not be patentable.
'This would bolster the advocates of national health care and create another (unwritten) constitutional right.'
Every right is a natural right. As someone else already pointed out, government doesn't grant rights, it takes rights away. You are freest without any government at all. What is the purpose of society if it isn't to keep the people who form it safe, healthy, and secure? Sounds to me like you are a moderately successful individual who just doesn't want to pay his fair share of taxes and thinks his success entitles him to priority when hes sick.
Re:I don't understand it. (Score:3, Insightful)
Until we deal with campaign finance
It's called not being such a fucking sheep. Do we REALLY have to vote for one of the two candidates that has the most advertising? 50% of voters say they want change but we elect the incumbent about 95% of the time. The majority of those who say they want change are lying. They want things to stay the same.
Re:Nope (Score:2, Insightful)
The supermodel with good attitude gene set?
Now THAT is some research I'd pay extra tax monies to fund!!
Re:I don't understand it. (Score:3, Insightful)
Re:I don't understand it. (Score:3, Insightful)
Farming is like owning a vineyard? Also, teaching is like grading papers.
So do I blame farmers who are trying to make their lives easier with Montasano products? No. I do blame Montasano for their practices, and because of that don't use their products myself.
Let me just go ahead and invoke Godwin here; The Nazis were just doing their jobs, too. The difference is that instead of killing people, Monsanto is "just" destroying their livelihood. Oh, wait... thousands of Vietnam vets have cancer because Monsanto couldn't keep their manufacturing processes clean. Same evil, different market.
Re:I don't understand it. (Score:3, Insightful)
You lost me on that. The right to life is clearly a right. I've never heard anyone argue against that. But the right to something without the right to protect it is useless. The right to life is useless if, say, the government could grab you and throw you in a cell with no food and water until you died. So, apparently, everyone agrees there is a right to life, and some rights that go along with that to protect the right to life. Where the line is drawn is the only thing that's ever in question.
Re:I don't understand it. (Score:4, Insightful)
They're patenting the sequence of amino acids. They say this is patentable because it excludes the introns and is after the post-transcription modifications. Patent law excludes naturally occurring phenomenon. The sequence is a naturally occurring phenomenon after the excision of the introns (don't ask about the language, we know it's goofy) and post-transcription modifications. It all occurs in nature and is thus unpatentable. However, the USPTO has decided that whatever happens after translation is patentable, which makes no sense from either a legal or scientific standpoint (which I happen to have experience in both).
I was finishing my undergrad degree in Genetics and working for a patent agent writing claims and detailed descriptions for biotech patents when I discovered this loophole in patent law. I was livid as I knew first hand how toxic IP law is to scientific fields and had assumed, based on the explicit language of the law, that my chosen field would be only minimally affected.
Basically, the prosecution is going to have to call on some good expert witnesses to explain every stage of how DNA is translated and transcribed into proteins. They'll need to put it in language a judge/jury can understand while also constantly pointing out what the law currently says you cannot patent a natural occurrence, which a gene sequenced from a living organism most certainly is.
As others have mentioned, custom genes that are made in a lab and did not evolve naturally, those are perfectly reasonable to patent. Hell, even mixing and matching parts of different, naturally-occurring genes into a new gene is reasonably patentable. Patenting a naturally occurring sequence that exactly matches the gene as it has evolved to function in the cell is a gross violation of the law.
Re:I don't understand it. (Score:2, Insightful)
Please do not misled the public, the news [cnn.com] (I have read about it on the cnn site) clearly states that the genes itself were patented: Myriad and the research foundation hold patents on the pair of genes - known as BRCA1 and BRCA2. The methods of sequencing the genes are known, and there is nothing about any new revolutionary way they do the research in the article, so considering the above and the definition [wikipedia.org] of patents:
I see a real legal problem for people who by chance have such a gene. Of course nowadays no-one would think about such implications (I hope), but the fact that reading books aloud violates the copyright law is nowadays not only a concept, but an implemented practice.
So:
Re:I don't understand it. (Score:3, Insightful)
Re:Bingo! (Score:5, Insightful)
Of course, you are welcome to disagree that this will work because neither regulation nor free markets have a pristine track record, hence the continued debate,
Well, you're falling into a very serious error here by setting up a false dichotomy. "Regulation" and "Free Markets" aren't in any way opposites. Regulation is absolutely 100% necessary to the existence of anything even remotely approximating a free market. "Unregulated markets" and "Regulated markets" are actual opposites. Unregulated markets will never be anything like a free market. A properly regulated market can approximate a free market.
An actual free market doesn't exist, has never existed, and can't possibly ever exist under any conceivable set of circumstances. It's an idealized hypothetical thing like the various frictionless planes, pulleys and such from high school physics.
As long as people keep pretending that the debate is how you framed it, then there will never be reasonable discussion of the issue in the public domain. This is especially true since the people who benefit from un or poorly regulated markets are the ones framing the debate since they're the ones who own all of the media outlets etc.
claiming that the "right" wants to be ruled by powerful corporations because of deregulation is like claiming that the "left" likes to kill babies because they want to allow the choice of abortion.
The right consists primarily of the people who own the powerful corporations and the idiots who have been duped into believing that "the Right" means "Liberalism" (Small government, fiscal responsibility, individual liberty etc) when the right is an inherently elitist philosophy. Heck, the right is called the right because the representatives of the church and aristocrats sat on the right in the French assembly. The right *is* theocracy, feudalism, fascism etc. The representatives of the people sat on the left, hence the term "left", and hence the association of the left with "the people" against the "elites".
Liberalism came later and was a rejection of *both* the left and the right. Left and right are both about using the power of the state to screw people for your benefit. Liberalism is the philosophy that nobody or group should be able to use the power of the state for the purpose of screwing individuals.
It is the philosophy that America was explicitly founded on. People today don't even know that. They think "Liberalism" means "whatever somebody calling themselves a 'Liberal' says" which is obviously a worthless definition. There doesn't exist another word in the English language apart from "Liberalism" to describe America's founding philosophy, so it makes it tough to discuss since the Left have coopted and the Right have demonized the term. This is because both the right and the left *despise* Liberalism and always have.
So, you, by pretending that the right stands for liberalism and the actual right doesn't even exist aren't helping to promote a more honest dialog, you're helping promote a redefinition which removes the terms necessary to accurately describe the political landscape.
The powerful corporations are perfectly happy to have massively oppressive regulation of the people for their benefit. The recent bailout is a right wing initiative. *I*, the individual, was robbed at the behest of said corporations for their benefit.
When "the rich" are robbed for the benefit of "the people", that's the left. When nobody is robbed by anybody by the government, that is a distinctly different position from either of the above.
That very real and very critical distinction is entirely eliminated by the redefinitions you're going with.
That is one of if not the most critical thing standing in the way of honest, non-partisan debate in this country. We don't even have to words to have such debate.
Re:good example of why I DON'T donate to the ACLU (Score:1, Insightful)
LOL WUT?
No, it's not. For employment or housing or some other Govt. related BS, but not for a private organization.
I didn't bother to read the rest of your BS diatribe after reading that sentence.
Re:I don't understand it. (Score:2, Insightful)
Or just have a media not motivated to paint them that way. Look at how they treated Ron Paul last election.
Instead of using his Congregational photo like all the other candidates, they used one that made him look crazy. They never asked him a serious question, it was always something like "Who are you going to vote for when you lose?". They marginalized him because he wasn't their pick.
I think having the media biasing debates and political news like that is a large part of the problem. Fox News, CNN, and MSNBC are all guilty of it. Look at what happened to the commentator on CNBC that was negative towards Obama.