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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?
      • Re: (Score:2, Interesting)

        by Anonymous Coward
        What a poor world you live in where everything has to be measured in monetary profit.
      • Re:Clearly (Score:5, Interesting)

        by Alex Belits (437) * on Saturday July 30, 2011 @08:38AM (#36932028) Homepage

        There is already no profit in cancer cure, as it would be immoral to refuse it to sick people, and people who develop it can not possibly collect enough money from the sick to cover their expenses. This is why it can be only developed in government-run or government-sponsored programs -- and we should better get accustomed to it.

        • by shentino (1139071)

          You hit the nail on the head.

          In fact there are already cures for cancer. They involve oxygenating or alkalinizing the body, among other things.

          However, cancer treatments are so lucrative that anyone curing cancer would face the wrath of the pharmaceutical cartel.

          • Re: (Score:2, Interesting)

            by slick7 (1703596)

            You hit the nail on the head.

            In fact there are already cures for cancer. They involve oxygenating or alkalinizing the body, among other things.

            However, cancer treatments are so lucrative that anyone curing cancer would face the wrath of the pharmaceutical cartel.

            This is true. Look at Royal R. Rife, Wilhelm Reich, the elements in medicinal marijuana, MMS. Anything not forbidden will be denied.
            Modern allopathic medicine refuses to look at any protocol not endorsed by big pharma. Modern medicine is only good for trauma and breast implants. Traditional Chinese medicine and Ayervedic medicine are better for chronic issues. These two forms of therapy have thousands of years of data and prove to be effective, just look at the size of their populations.

        • There is already no profit in cancer cure, as it would be immoral to refuse it to sick people.

          Treatment is already refused to sick people in the US who either have no health insurance, whose health insurance won't cover a particular procedure, or who can't afford to pay out-of-pocket.

          • by haruchai (17472)

            Which, in my not so humble opinion, puts the lie to America being a Christian nation.

          • by sumdumass (711423)

            Treatment being paid for by some insurance company maybe but it's disingenuous to claim they receive no treatment at all because of it.

            This is a lie created by political entities wanting to push legislation down your throat. If you are sick and cannot afford treatment, the government will step in with medicaid and medicare respectfully.

            • This is a lie created by political entities wanting to push legislation down your throat. If you are sick and cannot afford treatment, the government will step in with medicaid and medicare respectfully.

              So if you're a 45-year-old, have no health insurance, can not pay out-pf-pocket, and need a kidney transplant, you're saying that the government will pay the entire cost?

              • by sumdumass (711423)

                The government and private charities. The draw back is that you need to seel off your assets and become poor. But chances are, if you are 45 years old and need a kidney with no insurance, you have done that long ago.

                Medicaid and medicare do this all the time. Look at what happens when a 50 year old goes senile and needs to be placed into a nursing home but has no insurance.

      • by Alef (605149)

        I mean, Pasteur, Salk and Fleming all retired multi-billionaires, right?

        What is your point? We still have polio vaccine, penicillin and pasteurization.

      • by alen (225700)

        Pasteur was fairly wealthy. Other than vaccines he invented Pasteurization. he was a general consultant in his day being hired by a lot of different businesses to solve a variety of problems. The vaccines came late in his life

      • 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?"

        • by webheaded (997188)
          No kidding. I don't think I've seen someone get modded so high while completely missing the joke either. Do any of you actually know who any of the people he mentioned actually are? :p
      • by syousef (465911)

        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?

        What a narrow mind you must have to imagine that the only way to profit is to restrict others from moving forward. It should be possible to seek to profit. It should not be possible to seek to stop others producing what you refuse to just so you can price gouge.

        If people could demand a cut of the profits when other companies use their invention or discovery but could not prevent them from producing it in the first place, we'd be so much better off!!!

        • by ultranova (717540)

          If people could demand a cut of the profits when other companies use their invention or discovery but could not prevent them from producing it in the first place, we'd be so much better off!!!

          Actually, that's... brilliant. It solves almost all of our patent problems in one neat go. But, to improve it even further:

          "If people could demand a cut of the taxes when other companies use their invention or discovery but could not prevent them from producing it in the first place, we'd be so much better off!!!"

          Let

        • If people could demand a cut of the profits when other companies use their invention or discovery but could not prevent them from producing it in the first place, we'd be so much better off!!!

          Share of the profits? Have you heard of Hollywood accounting?

          And who would decide the percentage? Me? You? Your imam?

      • 1) This is the low-hanging fruit. It has been picked already. Most of the things that we could just "stumble upon" or discover/isolate rather easily are long gone, simply because many people have looked very hard for a very long time. It's just diminishing returns and it also explains why we've been making slower progress in many fields: what was easy to discover has been discovered already. There's the hard(er) stuff left and it takes more money and more effort.

        2) Nowadays, Pasteur would get prosecuted. T

        • Clearly you do not understand the FDA and how it works. One can make a pretty blanket statement that the drug/food with the biggest bucks behind it, found to be ineffective or even dangerous, will be approved, and recommended AND pograms against better performing natural substances will be initiated to protect the profits of the big bucks people.

          There are exceptions to any rule, and they will act to take something back off the market when the death count from it achieves both public knowledge, and is becom
        • by sjames (1099)

          Interestingly, it doesn't even have to be as effective OR safe as the older generic medication. It just has to be more effective than a sugar pill. A number of medications are more deadly than the diseases they treat.

      • by pablo_max (626328)

        There is no motivation to cure it, which is why there are only treatments.

      • by westlake (615356)

        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?

        You might want to think about how many decades of work, how much money and manpower it took to get a safe and effective polio vaccine into global distribution.

        Penicillin offers another example:

        The challenge of mass-producing this drug was daunting. On March 14, 1942, the first patient was treated for streptococcal septicemia with U.S.-made penicillin produced by Merck & Co. Half of the total supply produced at the time was used on that one patient. By June 1942, there was just enough U.S. penicillin available to treat ten patients. In July 1943, the War Production Board drew up a plan for the mass distribution of penicillin stocks to Allied troops fighting in Europe. A moldy cantaloupe in a Peoria, Illinois, market in 1943 was found to contain the best and highest-quality penicillin after a worldwide search. The discovery of the cantaloupe, and the results of fermentation research on corn steep liquor at the Northern Regional Research Laboratory at Peoria, Illinois, allowed the United States to produce 2.3 million doses in time for the invasion of Normandy in the spring of 1944. Large-scale production resulted from the development of deep-tank fermentation by chemical engineer Margaret Hutchinson Rousseau. As a direct result of the war and the War Production Board, by June 1945 over 646 billion units per year were being produced.

        Penicillian [wikipedia.org]

      • Pretty simple. I mean unless you're immune to cancer and don't like anyone else on the planet.
      • by LingNoi (1066278)

        I'd rather see it funded through taxation then have parts of my body owned by companies

      • by JAlexoi (1085785)
        And the only goal in life is to become a multi-billionaire? What we, as people of the world, have to do with the people that discover those cures should be a guaranteed a carefree life. BTW: In today's pharma world Pasteur, Salk and Fleming would still not be multi billionaires, but the investors would rip trillions...

        PS: How cynical you you have to be to value all the millions that have been saved by antibiotics in mere billions....
    • Holding America back, the rest of the world doesn't allow this sort of shit to happen (we have our own pointless crap).

      • So if someone wants to emigrate from a country being held back by monopolists, which country do you recommend and how should one qualify for legal immigration?
        • I'd say Antarctica, since that's about it. OTOH, sadly, I'm willing to wager that since it's under UN purview of the US, Russia, Argentina (seriously), France, and a few others, well...

          I'm thinking your only real hope at the point involves a colony on Mars, and even then I'm not so sure that wouldn't get jacked at first opportunity.

    • by Pieroxy (222434)

      The thing is, copyright (and IP in general) gives power. And everyone knows power corrupts. So they lobby for more power. It's all a very natural thing.

      While I agree that a reasonable copyright/patent system should exist, the current trend is complete and utter garbage. Software patents? ok. 1 or 2 years. Copyrights? ok. 10 years max. And so on...

      Not copyright 753 years after the author's death for god's sake !!!!!!!!!

      * 753 was a typo, but I felt like leaving it there.

    • by lexsird (1208192)

      Obviously the courts are proving to be lackeys of the uber rich as well as politicians. It's about time to put them all against the wall.

    • Clearly patents are not a necessity for pharmaceutical companies to have an incentive to do research,
      because ...*drumrolls*... before this particular patent was granted it was thought that such patents on genes were not admissible (while the research had already been done!)

  • by durrr (1316311) on Saturday July 30, 2011 @08:19AM (#36931930)
    The reasoning being something like this: "If there is money to be made of it then of course it should be patentable".
    After the ruling the judge was seen leaving the scene in a limousine filled with naked ladies leased by Myriad.
  • Someone has patented aspirin and ibuprofen. The 2 most common over the counter pain killers.

    After that hospitals are sued over a patent on health care procedure.

    That's just before all car sales have to be stopped because someone has patented the gas tank lid.

    • by Pieroxy (222434)

      ... because someone has patented the gas tank lid.

      Just a minute... Aaaaaaaand, that's done. Thanks for the tip.

      See ya in 10 years when my patent on the tank lid is granted. I'll start spending right away. Looks like the sensible thing to do right now.

    • Re:Next up (Score:5, Interesting)

      by JBMcB (73720) on Saturday July 30, 2011 @08:39AM (#36932034)

      Good point on aspirin. Aspirin *was* patented a long time ago. The patent has long expired, but companies still seem to make a lot of money off of selling it, even though anyone can buy dirt cheap acetylsalicylic acid from Dow and infuse it into their own tablets for next to nothing.

      • by Rich0 (548339)

        Ok, here's how drugs work in a nutshell:

        1. Figure out if a compound cures a disease without killing people. The answer to this is basically "yes" or "no" and costs about $50M. It is "no" about 99.999% of the time, although 99% of the time you can get the "no" for maybe $25k. Sure, there is a lot of other information you learn, but the bottom line comes down to whether the drug helps more than it hurts, and people will pay for it if it does.

        2. Once you have a compound and a "yes" you can make the pills

        • by Rutulian (171771)

          Yes, that is the argument the pharmaceutical companies make, for sure. But first, the costs they quote are largely bunk. They say they spend $50M bringing a drug to market, but it doesn't cost $50M to do a clinical trial. It costs $50M to do their massive advertising campaign, political bribery, and to pay for their lawyers. Second, a large part of the high failure rate comes from the way we search for new drugs and treatments. Despite large changes in the basic scientific models, there has been almost no c

          • by Rich0 (548339)

            Yes, that is the argument the pharmaceutical companies make, for sure. But first, the costs they quote are largely bunk. They say they spend $50M bringing a drug to market, but it doesn't cost $50M to do a clinical trial. It costs $50M to do their massive advertising campaign, political bribery, and to pay for their lawyers.

            No, the trials still cost $50M. They spend $500M on the other things (and they only spend it on the compounds that actually work out - the problem with the $50M bit is that it has to get spent many times on compounds that don't work out). However, even if you somehow eliminated the advertising/etc, you still have to pay for all the trials, and that won't happen without either public funding or patents. Suppose a single clinical trial has 10k patients. Suppose they each see a doctor 10 times, with lab te

        • by JAlexoi (1085785)

          nobody wants to pay for #1

          Private companies don't want to pay for #1, because they literally have to think about "#1" first. State sponsored researchers spend that money in millions all the time....

          • by Rich0 (548339)

            No, government-funded R&D is focused on #0 - come up with an idea for a way to treat a disease.

            That also costs a fair bit of money, and is very innovative work.

            #1 is about figuring out if a particular molecule works or not. It involves some level of theoretical screening and compound design, killing a LOT of rats, and then paying doctors a not-so-small fortune to convince people to try out a compound and record how it works (usually the answer is not well), and a bunch of clerks and statisticians to fi

  • I want to patent the gene that makes people want to be a lawyer.

  • 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.

    • by hedwards (940851)

      What about in the future when somebody figures out how to invent genes? It's technologically impossible at the present, but I can definitely see folks figuring out how to do that, predicting the outcome would be challenging.

      But, what happens if somebody invents a gene that already exists but is not yet discovered? Would they be able to sue the offending organisms for infringement.

      And yes, this is a slippery slope and not yet inevitable, but I do wonder if this isn't the direction we're headed.

      • by sjames (1099)

        More to the point, a corporation claims to own a gene that causes cancer. Why can't cancer patients sue them for failing to control their gene?

    • by ISoldat53 (977164)
      We don't impeach enough judges.
    • by JAlexoi (1085785)
      Well... By those standards Oxygen should be patentable, since most of it is in oxidised form of something....
  • 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?

    • by kidgenius (704962)
      Fine line though right? 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. Does it exist it nature? Chances are there might be a few molecules existing somewhere out there in the universe, that just haven't been found.

      For what it's worth though, I am completely a

      • 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.

      • by richlv (778496)

        you should be able to patent the process to make that steel, not the material itself. with a reasonable expiry date.

    • by Grond (15515)

      From the Patent Act: "The term 'invention' means invention or discovery." 35 USC 100 [cornell.edu]. Furthermore, "Patentability shall not be negatived by the manner in which the invention was made." 35 USC 103 [cornell.edu]. So a chance discovery is just as patentable as the result of a planned experiment.

      You can argue that there should be a distinction between inventions and discoveries, but the current US patent laws explicitly preclude such a distinction.

      • by hedwards (940851)

        Not really, by that logic somebody could have patented fire rather than the process of making it. If I accidentally held a magnifying glass at the right angle I could accidentally discover how to create fire, but the lens method would be the part that could be patented, not the light and not the result. I could also possibly patent the lens if it hadn't already been patented.

        But, in this case, the lens doesn't exist naturally and as a result could theoretically be patented. A gene is a gene and if you get i

    • by bwcbwc (601780)

      Actually, there is a whole class of patents for biological inventions. In the good old days, these were derived by breeding and hybridization, and Luther Burbank and George Washington Carver got their fame by inventing new plants and animals. So patenting a gene that occurs naturally is related to this type of patent. The thing is, the law doesn't say you can patent isolated genes, it says you can patent new plants and animals. i.e., all of the DNA and genes that distinguish the new breed from others and al

  • I can see a time when a disease is cured thru gene therapy at which time our own ability to donate blood is banned in the same way Monsanto bans the distribution of their genetically modified crops.

    I can no longer sit back and allow Corporate infiltration, Corporate indoctrination, Corporate subversion and the international Corporate conspiracy to sap and impurify all of our precious bodily fluids.

    • I can no longer sit back and allow Corporate infiltration, Corporate indoctrination, Corporate subversion and the international Corporate conspiracy to sap and impurify all of our precious bodily fluids.

      So what is your plan? How are you going to stop them?

  • That I completely agree and that ripping a DVD onto my hard drive constitutes creating that is not the same as the original movie. The actual information contained in the frames of video is completely irrelevant as it is isolated from the optical media at that point. I should be able to patent/copyright DVD rips, then distribute them according to my license,

  • DNA, RNA, and Genes (Score:5, Informative)

    by rockmuelle (575982) on Saturday July 30, 2011 @10:22AM (#36932572)

    The judge's reasoning in the ruling hinges on the fact that the BRCA1/2 genes do not appear in nature as isolated, unmodified DNA and instead only appear in DNA form as part of a (much) larger chromosome. While technically true, it ignores an important fact of genomics: while the BRCA genes do not appear in vivo as isolated _DNA_, the do appear as isolated _RNA_. The RNA counterpart of the DNA sequence is slightly modified - it is the 'reverse-complement' of the DNA with the T's replaced with U's (for example, AACC - (reverse complement) -> GGTT - (sub U for T) -> GGUU.

    So, in a very perverse way, the judge is correct. The isolated, unmodified DNA does not appear in nature.

    There is natural mechanism for converting RNA back into DNA called reverse transcription (RT). RT-based methods are how we sequence genes. RNA from genes is isolated and converted back into DNA for sequencing. This is a standard lab method and used for all gene sequencing. (interestingly, if someone were to find RT at work in a cell converting BRCA genes back to DNA, the patent could be invalidated.)

    The gene itself, in RNA form, appears isolated in nature. The RNA sequence cannot be patented. But, sequencing methods all rely on converting RNA back to DNA for sequencing. The sequence is read as DNA. But, that's not really the gene, that's just a modified representation of the gene. The functioning gene is the RNA version, not the DNA copy of it.

    What's frustrating is that Myriad is using a technical aspect of how gene/RNA sequencing works to claim a patent on a gene itself.

    -Chris

    • by Rutulian (171771)

      So, I don't like the idea of gene patents. I think it is totally absurd and is just a means for a company to monopolize an entire area of diagnostic medicine and make a lot of money doing it, but here's the thing...they aren't patenting the gene. They are patenting the method by which mutations and/or SNPs can be identified in a patient with sufficient confidence to be able to say "Yes, you have an increased likelihood of getting breast cancer or no, you do not." It is far from trivial and requires a fairly

  • Only solution left (Score:4, Interesting)

    by jmorris42 (1458) * <jmorris@[ ]u.org ['bea' in gap]> on Saturday July 30, 2011 @10:59AM (#36932752)

    Since the courts are insane beyond recall there is only one option left. Congress needs to pass a law. Throw the creationists a bone to get them on board. Mandate the Patent Office to assume the design of every existing natural creature was patented by God with the issue date in 4000BC. And to stop the next step direct the Library of Congress to assume He filed a copyright on the full genome of every creature on the same date. Then direct them to assume any gene sequence derived from a naturally occurring creature is a derived work so that only the new material is eligible for a new copyright if it is different enough and separate enough from the original work.

    • +1,000,000

      But since it almost makes sense, there will be congressmen retiring as billionaires that voted to defeat it.

      I hope I live long enough to see the next revolution.

      Cheers, Gene
    • Sooo, the answer to fix the product of a crap system of regulations(the patent office), is to pass more crap regulations? That's just fucking sad. Why not redesign the progenitor of the problem?

    • That would only create a precedent where various Religious Organizations would come to collect on "Gods Patent."

      I could only imagine the huge battle of hired mercenaries as the Mormons and Vatican square off to make sure that everyone knows who GOD wanted to collect "His" royalties.

      >> No good can come of using Religion to solve a problem -- unless that problem happens to not already exist, and you need an imaginary problem urgently.

      INSTEAD -- I would urge you to call on the churches to "Pray for our d

  • The other twin had to pay royalties for life.

    If he didn't want to pay, then he is a freetard.

    Why is he against innovation?

    He should be sued by the other twin whose innovative genius is proven by the very fact that he holds a patent.
  • so, the bastardry in america reached such a level that, something that has been inside of me, or my father, or his grand grandfather, or his grand grand grand father, can be 'patented' and therefore 'owned' by a son of whore in america ?

    well. get a load of that.
  • If this goes anything like Monsanto, when the patented genes end up being transferred via procreation the derived works will belong to the patent holder. If you're a huge pharmaceutical corporate behemoth, this is great way to farm organ transplants on the cheap.

  • So, per the decision, because the particular gene was extracted from the DNA strand, it is patentable.

    Isolated DNA, in contrast, is a free-standing portion of a native DNA molecule, frequently a single gene. Isolated DNA has been cleaved (i.e., had covalent bonds in its backbone chemically severed) or synthesized to consist of just a fraction of a naturally occurring DNA molecule.

    I have decided to patent blood. Since obviously, once it is separated from the body it is now something not found in nature.

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