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Supreme Court Throws Out Human Gene Patents 91

Posted by Soulskill
from the klingon-gene-patents-still-ok dept.
thomst sends this quote from an Associated Press report: "The Supreme Court on Monday threw out a lower court ruling allowing human genes to be patented, a topic of enormous interest to cancer researchers, patients and drug makers. The court overturned patents belonging to Myriad Genetics Inc. of Salt Lake City on two genes linked to increased risk of breast and ovarian cancer. The justices' decision sends the case back down to the federal appeals court in Washington that handles patent cases. The high court said it sent the case back for rehearing because of its decision in another case last week saying that the laws of nature are unpatentable. In that case, the court unanimously threw out patents on a Prometheus Laboratories, Inc., test that could help doctors set drug doses for autoimmune diseases like Crohn's disease."
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Supreme Court Throws Out Human Gene Patents

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  • Re:Finally (Score:2, Interesting)

    by Gaygirlie (1657131) <gaygirlie&hotmail,com> on Monday March 26, 2012 @05:34PM (#39478849) Homepage

    I wonder if one could rule the patents invalid because of abundant previous art?

  • /. car analogy (Score:2, Interesting)

    by vlm (69642) on Monday March 26, 2012 @05:41PM (#39478903)

    Please rate my standard /. car analogy:

    Last week they overturned a patent on painting a car such that it reflects light with a spectral peak at 650 nm, in other words, its painted red, with the justification that red being a certain wavelength is a fairly obvious natural fact rather than a patentable invention. Today they kicked a patent on "a car cooling system that cools by accepting cool air at the radiator intake, heating it, and exhausting the heated air thus cooling the engine" back for further review based on last weeks overturning because the laws of thermodynamics are also mere laws of nature.

  • ABOUT TIME! (Score:5, Interesting)

    by quixote9 (999874) on Monday March 26, 2012 @05:45PM (#39478925) Homepage
    I'm a biologist and I watched the whole evolution of PCR and the mad scramble to patent every bit of human DNA with stunned disbelief. Did the legal beagles not understand that they were allowing the equivalent of patenting somebody else's books in a library?

    Apparently, they didn't.

    But, after a generation or so, and a festering swamp of patents, the truth seems to be dawning on them. I shall watch our future progress with considerable interest.
  • Re:WOW... (Score:5, Interesting)

    by garyebickford (222422) <.moc.liamg. .ta. .cib73rag.> on Monday March 26, 2012 @06:00PM (#39479033)

    Yes. Someone should prosecute Monsanto for criminal trespass. (No joke, it's a valid legal principle - companies and people have been prosecuted criminally and also sued for damages for allowing their critters, fumes, liquids, waste etc. to escape their property and cause damage on others' property. With respect to Monsanto, it's a bit more complicated because Monsanto is essentially allowing, encouraging and forcing their customers to do the trespassing. I suppose that could be considered conspiracy?

  • Re:COOL!!! (Score:4, Interesting)

    by Endo13 (1000782) on Monday March 26, 2012 @06:13PM (#39479139)

    I carry my trusty transmogrifier gun with me. That way, should I happen to accidentally get carried several miles into the air by a balloon I'm still safe!

  • Re:ABOUT TIME! (Score:5, Interesting)

    by rahvin112 (446269) on Monday March 26, 2012 @06:49PM (#39479491)

    Well Myriad's been making a TON of money charging people $3500 for a $200 test all because they patented the gene in question (not the test which is standard DNA profiling).

  • Re:Not exactly... (Score:4, Interesting)

    by Anonymous Coward on Tuesday March 27, 2012 @01:08AM (#39481597)

    But why should the gene be patented? The patent seeker in question didn't invent the gene, nor did he invent the way it expresses into proteins, nor did he invented the proteins synthesized. Someone discovered what role the gene plays in the metabolism, but that's a discovery, not an invention.

    That's not what the patents cover.

    They usually cover:

    1. Adding or removing genes from an organism to give the organism a useful new phenotype (corn that makes bt toxin).

    2. A process for manufacturing a protein that includes taking it out of the original organism and expressing it in a different one so that you get a higher yield.

    3. A diagnostic based on the presence of a particular version of a gene or protein (what this case was about)

    4. A new version of a protein that is more useful than the natural one.

    Some are still pretty obnoxious though.

    Please mod the parent up, these are crucial details here, and as always, the devil is in the details.

    To clarify some more, in the pharmaceutical world, the simplest standard for patent-ability of a novel chemical compound is that it does not exist in nature. So penicillin itself, for example, cannot be patented because it occurs naturally in mold. A process for purifying it from mold, however, is quite patentable. Or, if you chemically modified penicillin slightly by adding a doohickey bit to one end such that it even works on penicillin-resistant bacteria, that would also be patentable since penicillin doesn't exist in nature with the doohickey bit. Sure, that may seem like cheating, slightly, but there is undeniably much value added in figuring out exactly how many ways you can tinker with penicillin and make new antibiotics.

    In the biotech world, this simple and commonsense criteria has been ridiculously abused. The argument, summarized briefly, is that when you isolate a gene you have to snip it out of the rest of the DNA before you can run a test on it, and that isolated snippet doesn't naturally occur in the universe (only the whole honking genome does). Semi-magically, the gene is not patentable inside a genome as it naturally exists, but if you cut it out, it's a "different molecule" that is now patentable.

    What about the whole test aspect, you say?

    There is some language in the patent law that the details of your innovation must be "non-obvious to a person skilled in the art".

    Once you know the sequence of the gene involved, the mechanics of doing a test is pretty much something you could do yourself in a high school biology lab. The principles are taught in intro biology textbooks, you can order all the reagents you need and use a mail order sequencing lab for probably under 50$ a pop. So there's really no value added in providing the details of how to make a test for a gene once you've isolated it. Any idiot could teach themselves how to do it over the weekend, it requires no particular expertise whatsoever once you know the sequence of the gene. So defending the process of designing a test once the gene is known clearly does not pass that test for patentable in and of itself.

    Proponents of gene patents argue that it would be the most equitable mechanism to help recoup the massive expenses involved in figuring out exactly what genes are involved with disease and how to design a treatment plan based on the results of specific, targeted gene tests. Which would be great if there was anything in the patent code that ensured the people who figured out how a gene works and why you would care to test for it end up with the patent for it. But as it stands now, there are no standards on what level of detail must be provided for the "how" and "why" aspects in a gene-test patent application, just the raw sequence itself.

    In the Myriad Genetics case, for example, the company with a monopoly on test for a major breast cancer gene was not the same group of people who first isolated the gene and figured out what it did. Academi

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