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Biotech Patents United States Science

Ruling Upholds Gene Patent In Cancer Test 173

Posted by timothy
from the every-pair-of-genes-is-a-hand-me-down dept.
diewlasing writes with a report in the New York Times which begins: "In a closely watched case, a federal appeals court ruled on Friday that genes can be patented, overturning a lower court decision that had shocked the biotechnology industry." Techdirt has some insightful commentary on the ruling.
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Ruling Upholds Gene Patent In Cancer Test

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  • Clearly (Score:4, Insightful)

    by blind biker (1066130) on Saturday July 30, 2011 @08:17AM (#36931924) Journal

    Clearly, patents and copyrights are keeping humanity back from development and prosperity.

  • Re:Clearly (Score:5, Insightful)

    by a_nonamiss (743253) on Saturday July 30, 2011 @08:20AM (#36931938)
    Really? Then what's the motivation to cure cancer if there's no profit in it? I mean, Pasteur, Salk and Fleming all retired multi-billionaires, right?
  • by Anonymous Coward on Saturday July 30, 2011 @08:38AM (#36932032)

    Summary: The appeals court believes that when isolating individual genes, it somehow makes them "unnatural" to the point where they are patentable. Because, at this point, they're no longer "found in nature" (in the form of isolated genes), they're now patentable.

    Mike Masnick seems to have the right idea here and notes the following.

    Basically, they seem to be arguing that because a severed finger is not attached to a hand, the finger is not naturally occurring, and, thus, is patentable. Think about that. The dissenting judge in this ruling used a slightly less gruesome analogy, saying that the majority was basically saying that while a tree occurs in nature, snapping a leaf off the tree makes that leaf patentable.

    And, of course, the opinion of the dissenting judge points this out too and how Myriad hasn't "invented" the gene so this is idiotic.

    Me, I gotta agree with that. The technique for isolating specific genes, as the dissenting judge also notes, is probably really difficult and should be patentable. No problem there. But saying something you've *created* with that technique is patentable is complete and utter nonsense. It would be like saying, by processing gold ore (which is the natural form of gold) into refined gold, you now own a patent on all refined gold. (Note that this was also the judge's example and I"m just trying to translate it to something simpler.)

    Myriad is claiming the genes themselves, which appear in nature on the chromosomes of living human beings. The only material change made to those genes from their natural state is the change that is necessarily incidental to the extraction of the genes from the environment in which they are found in nature. While the process of extraction is no doubt difficult, and may itself be patentable, the isolated genes are not materially different from the native genes. In this respect, the genes are analogous to the “new mineral discovered in the earth,” or the “new plant found in the wild” that the Supreme Court referred to in Chakrabarty. It may be very difficult to extract the newly found mineral or to find, extract, and propagate the newly discovered plant. But that does not make those naturally occurring items the products of invention.

    Now, if they'd done *something* to the gene to make it better, to make it so that it's inherently different from "natural" genes or at least that they altered it without prior knowledge of other similar genes, I'd give them a pass. But isolating a specific part of a gene and patenting it as if it were something they invented? Hideous.

  • Obviousness (Score:5, Insightful)

    by JBMcB (73720) on Saturday July 30, 2011 @08:45AM (#36932066)

    I thought only inventions could be patented, not discoveries? Does the judge need a dictionary?

  • Re:Next up (Score:3, Insightful)

    by Haedrian (1676506) on Saturday July 30, 2011 @08:51AM (#36932098)

    And I'm sure the patent has expired which is why the drug companies are suffering to sell these products.

    Oh wait. Guess you don't need a patent to sell stuff after all.

  • Re:Clearly (Score:5, Insightful)

    by Dr_Barnowl (709838) on Saturday July 30, 2011 @09:15AM (#36932234)

    I'm astounded none of the siblings get the sarcasm here...

    None of these men made fortunes from patent rights on a single notable invention.

    Most notably, Jonas Salk said, when asked who owned his vaccine - "The people, I would say. There is no patent. Could you patent the sun?"

  • Re:Obviousness (Score:5, Insightful)

    by JBMcB (73720) on Saturday July 30, 2011 @09:56AM (#36932430)

    If I develop a new type of super-light but super-strong steel, should I be allowed to patent the chemical formula that makes up compound? Is my new type of steel an invention or a discovery? This compound is a mixture of pre-existing things, carbon, iron, etc., but in a way never before done.

    That's pretty much the definition of an invention. You're putting things that already exist in a novel way. The key here is "novel." IE non-obvious. You can't make cantaloupe-flavored gum and patent it - you're just making a new flavor of something that's already flavored. Now, if you make gum that can be used to reliably patch a flat tire - that's novel, nobody has made gum that can do that.

    The problem with gene patents is that you are patenting the observation of how something already works. It would be like Niels Bohr patenting chemical interactions, so anyone who mixed substances together to create new compounds would have been infringing on his patent, even though he just figured out exactly how it worked.

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