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."
Re:Monsanto will most likely get this reversed (Score:5, Insightful)
A Missed opportunity..... (Score:2, Insightful)
Seriously, It is so welcome to see a wee bit of sanity returning to this madhouse that is the current IPR regime....
RkR
Re:It's not like the DNA was already functioning (Score:5, Insightful)
That's my basic take on it as well.
Genetic modification and tailored organisms should be patentable. For example, if someone were to develop a useful modified single celled organism that processed sewage into biofuel, I could see patenting that as valid. It's engineering after all, just with genes instead of gears.
But discovery has never been patentable in any other field, and that's what's being discussed in TFA. You can't patent if there's prior art, can't patent something you've found rather than made, and can't patent abstract scientific knowledge. You cannot patent the lever or pulley, and in a mechanics to biology comparison, those are the best analogues to genes. Except it's even worse, because those two examples were developed by humans in the first place, so at least somebody long dead could claim ownership, whereas genes are strictly a natural occurrence.
Re:It's not like the DNA was already functioning (Score:5, Insightful)
It may be more complex, but that does not make it an invention.
Show me where I can find a ratchet wrench [wikipedia.org], and I'll call it a discovery.
On the other hand, I can tell you where to find pretty much all the genes that are patented - in organisms that nature derived on its own.
Now - if, on the other hand, some company designs a gene, that does something that has never existed in nature - that'd be an invention. But moving genes from a fish into a plant isn't an invention, any more than adding "on the internet" onto already existing technology makes that worthy of being patented. Very neat, and you should probably be allowed a patent on the technology used for it.
Re:It's not like the DNA was already functioning (Score:3, Insightful)
Except if the genes are already "discovered" by nature, which I read some story about bred pigs from a farm which had a gene from the breeding but Monsato patented the gene. The story is here http://www.globalresearch.ca/index.php?context=va&aid=2480 [globalresearch.ca]
Take patent application WO 2005/017204. This refers to pigs in which a certain gene sequence related to faster growth is detected. This is a variation on a natural occurring sequence -- Monsanto didn't invent it. It was first identified in mice and humans.
Than of course are the patent infringement issues if the neighbor of a farm using Monsanto's patented seeds and some seed are landing on his farm by wind. You can't tell the difference until you send the genome to a laboratory to test, and until then you are selling Monsanto's "intellectual property".
Re:It's not like the DNA was already functioning (Score:3, Insightful)
IANAL and all that, but the /. beloved obviousness test should apply here.
For something to be patentable, it has to be non-obvious to a person working in the relevant field. The relevant field here is genetic biology. They are simply lifting the pattern straight out of the naturally occurring genome, without altering it.
It would seem that this would be an exceedingly obvious application of genetics- anyone with the appropriate (and probably patented) equipment can do it, no skill or ingenuity required.
Customised, altered genetic code is a different matter though.
Re:It's not like the DNA was already functioning (Score:4, Insightful)
moving minerals from a rock into a bar of iron which is forged in to a wrench is just just taking technology that already existed and moving it somewhere else.
That's silly. If you find a fish that glows in the dark, a bacteria that produces less harmful byproducts, and another bacteria that can eat crude oil - and you combine the three traits into a bacteria that glows in the dark, eats crude oil, and has less toxic byproducts...you've created something new. No less so than taking wheat that someone else invented, grinding it up, and combining it with water that someone else invented to make bread.
Re:Monsanto will most likely get this reversed (Score:4, Insightful)
The present case has nothing to do with Monsanto's products or patents. What's more, patenting genetically modified organisms is already settled case law.
http://en.wikipedia.org/wiki/Diamond_v._Chakrabarty [wikipedia.org]
Re:It's not like the DNA was already functioning (Score:2, Insightful)
No less so than taking wheat that someone else invented, grinding it up, and combining it with water that someone else invented to make bread.
And thank God we had patents!
Can you imagine where humanity would be if we hadn't been granted patent protection? Nobody would have had the incentive to invent bread. All that work: inventing agricultural methods, refining plant products, taming fire, finding the right combinations of everything... it just wouldn't have been worth it without the knowledge that the bread inventor would get his patent.
We'd all be sitting around forest fires, unwilling to make our own bread (because what would be the benefit without patents?), waiting for our meals to come to our mouths and starving to death. Humanity would stagnate and disappear.
You see, this is why patents are vital. Without patents, humans wouldn't create new things.
Re:It's not like the DNA was already functioning (Score:3, Insightful)
Re:Monsanto will most likely get this reversed (Score:3, Insightful)
"Read the whole judgement, the farmer found some plants which he knew were herbicide-resistant and selectively bred them to get enough seed to cover a significant portion of is crop."
So? Sorry but I see no reason you should be able to own a plant or genes in the plant that could be bred into subsequent generations.
Monsanto has the only seed you can be certain is resistant and has a patent to guarantee that. Subsequent generations could exhibit the gene only partially or to a lesser extent. That is all the market advantage they need.
Re:Monsanto will most likely get this reversed (Score:3, Insightful)
Read the whole judgement, the farmer found some plants which he knew were herbicide-resistant and selectively bred them to get enough seed to cover a significant portion of is crop.
This isn't an "oops, 'somehow' some seed blew onto my field" situation.
Why isn't that his right with plants found on his land? It's not like he stole from his neighbor's farm or from the company itself. If an advantageous strain of a crop finds its way onto your land through no fault of your own, why should you have to pay someone else for it? It was basically given to him.
Claiming ownership of all descendants of a single plant is simply not how we did agriculture before the invention of GM crops and gene patenting. So why should we change the law to support this?
An example for software patents (Score:3, Insightful)
It's also an example for how we can do our software patents lobbying.
The US govt pleading for a narrowing of patentable subject matter is rare (AFAIK), so this is a juicy example of how they justify a narrowing and how, in legal terms, they argue for a narrow interpretation.
If anyone has info about these angles, please add it to what I've got here:
http://en.swpat.org/wiki/Excluding_gene_patents_in_the_USA [swpat.org]