US Says Genes Should Not Be Patentable 127
Geoffrey.landis writes "A friend-of-the-court brief filed by the US Department of Justice says that genes should not be patentable. 'We acknowledge that this conclusion is contrary to the longstanding practice of the Patent and Trademark Office, as well as the practice of the National Institutes of Health and other government agencies that have in the past sought and obtained patents for isolated genomic DNA,' they wrote (PDF). The argument that genes in themselves (as opposed to, say, tests made from genetic information, or drugs that act on proteins made by genes) should be patentable is that 'genes isolated from the body are chemicals that are different from those found in the body' and therefore are eligible for patents. This argument is, of course, completely silly, and apparently the US government may now actually realize that."
Monsanto will most likely get this reversed (Score:4, Informative)
Re:It's not like the DNA was already functioning (Score:5, Informative)
Except in patent law, there is a distinction between discovery and creation, at least in theory.
It is arbitrary where we choose to differentiate, you're right about that. But the line is drawn on the basis of observation versus utilization.
If I observe that objects of differing mass fall at the same velocity if air resistance is taken away from the equation, I cannot patent that. If I use this observation to determine that slowing decent via increasing surface area is possible, and create a parachute, I can patent that. Or I could if those examples weren't hundreds of years old and therefor covered under prior art.
Identifying genes, where they are and what they do, is observation. Tinkering with them is utilization.
Re:Monsanto will most likely get this reversed (Score:5, Informative)
Re:It's not like the DNA was already functioning (Score:3, Informative)
Re:Monsanto will most likely get this reversed (Score:5, Informative)
which is anti-capitalist
"Anti-capitalist" would mean that they oppose in some way private ownership of capital (which clearly they don't have a problem with). "Anti-competitive" is the better term.
Re:Monsanto will most likely get this reversed (Score:4, Informative)
You apparently don't understand case law, then. Case law doesn't arise from a jury's finding of fact, because the jury doesn't make or interpret the law, they only decide the facts of the case. The judge, on the other hand, interprets the law and determines how it applies to the case at hand, and the precedents that judges make on their own court and lower courts is what forms the basis of case law.
If you find a case where evidence was excluded, for example, and point out that in your murder case, evidence should be excluded for the same reasons, you very well could get off, ultimately based on case law. But you can't just say that a jury acquitted Joe Sixpack of murder, so that's case law and you should be set free, because it's not case law.
In this case, the Supreme Court decided that GMOs were patentable (albeit by a 5-4 decision where none of the justices sitting on that case are part of the Court anymore). Since the judicial system is the arbiter of the law, and (generally) the courts respect the precedential decisions of their superior courts (the Supreme Court being the big daddy of them all), the only recourse for changing the law is to either convince the Supreme Court to change their mind or to legislate a change in the statute.
Re:It's not like the DNA was already functioning (Score:3, Informative)
Except in patent law, there is a distinction between discovery and creation, at least in theory.
No there isn't. "The term "invention" means invention or discovery." 35 USC 100(a) [cornell.edu] (emphasis added). "Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title." 35 USC 101 [cornell.edu] (emphasis added).
The line is drawn at the laws of nature, physical phenomena, and abstract ideas. Diamond v. Chakrabarty [findlaw.com], 447 U. S. 303 (1980). Note, however, that those limitations are judge-made, and are not present in the statute.
As in Chakrabarty, the isolated genes claimed here are "a nonnaturally occurring manufacture or composition of matter - a product of human ingenuity having a distinctive name, character use." Isolated, purified genes do not occur in nature, and they have a distinctive character and use separate from the naturally occurring gene (e.g. performing genetic tests, as opposed to being by cells in vivo).