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US Court Sides With Gene Patents 255

Posted by timothy
from the much-prefer-gene-siskells-to-gene-patents dept.
ananyo writes "Gene patents have been upheld in a landmark case over two genes associated with hereditary forms of breast and ovarian cancer. The lawsuit against Myriad Genetics, a diagnostic company based in Salt Lake City, Utah, that holds patents on the genes BRCA1 and BRCA2, has bounced from court to court since 2010. In a 2-1 decision today, a federal appeals court reaffirmed their latest decision that genes represent patent-eligible matter. As noted before on Slashdot, the case will have major implications for cancer researchers, patients and drug makers."
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US Court Sides With Gene Patents

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  • Smoking Crack (Score:5, Insightful)

    by OrangeTide (124937) on Thursday August 16, 2012 @05:42PM (#41017753) Homepage Journal

    While Judge Koh suggests Apple is “smoking crack” in another case, I'm going to suggest that judges are smoking crack here.

    What other natural phenomenon can I patent? The shape of a quartz crystal perhaps?

    • I bet you can patent a brain wave. No seriously, I bet you could convince a judge that brain waves are "patentable material", especially if you're using some weird-sounding stimulus to influence them.

      • Re: (Score:3, Insightful)

        by X0563511 (793323)

        I can see it now: emotional patents.

        • Re: (Score:3, Insightful)

          It's sad when cynicism replaces outrage.
          • It's sad when cynicism replaces outrage.

            Sad, indeed, but purely natural and completely inevitable. Rome wasn't built in a day... but it ended in one... September 4, 476.
            Today it seems as if that were only yester-morrow.

    • by houghi (78078) on Thursday August 16, 2012 @06:23PM (#41018177)

      What other natural phenomenon can I patent? The shape of a quartz crystal perhaps?

      If you have quarts with rounded corners, I have some bad news for you.

    • Re:Smoking Crack (Score:5, Insightful)

      by Anonymous Coward on Thursday August 16, 2012 @06:29PM (#41018235)

      It must be the same crack that causes an opposite ruling of the one the Supreme Court ruled on a few months ago.

      But the real problem here is that a judicial system designed to interpret criminal law is not designed to interpret scientific merit or results. The entire premise of the system is faulty. Patents eligibility should not be decided by criminal courts, nor should they be processed as if the only merit for approval is that the legal forms and fees are paid.

    • by DragonTHC (208439)

      I'm going to patent water!

    • Re:Smoking Crack (Score:4, Interesting)

      by AmberBlackCat (829689) on Thursday August 16, 2012 @06:47PM (#41018427)
      And what happens if you reproduce with somebody who has these genes? Will they be able to sue you over your children, the way Monsanto sues people over corn?
      • Will they be able to sue you over your children, the way Monsanto sues people over corn?

        Um, if you find children growing out of you due to accidental scattering of some else's "seed", you've got much bigger problems than a patent lawsuit...

        • by Genda (560240)

          Eating raw squid recently resulted in an Asian woman getting pregnant with baby squid in her mouth... Eeeeeewwwww!!!

        • by Teancum (67324)

          Will they be able to sue you over your children, the way Monsanto sues people over corn?

          Um, if you find children growing out of you due to accidental scattering of some else's "seed", you've got much bigger problems than a patent lawsuit...

          I've known a few people who scatter their seed rather far and wide. You can ask more than a few women about "accidental scattering of seed" that has children growing out of them and how that has impacted their lives.

          Then again, it sounds like you need somebody to talk to you about the birds and the bees with the talk your parents should have given to you. A refresher course in genetics would be advisable too. Then again I think these judges ought to take a refresher course in genetics as well.

      • Re:Smoking Crack (Score:4, Insightful)

        by Vintermann (400722) on Friday August 17, 2012 @03:46AM (#41021425) Homepage

        I think that the people who have these genes should sue the hell out of the "owners" for giving them cancer.

    • "What other natural phenomenon can I patent? The shape of a quartz crystal perhaps?"

      That's what makes this ruling so bizarre -- and likely to be overturned. The Supreme Court has ALREADY ruled that you can't patent "elements of nature".

    • by slick7 (1703596)

      While Judge Koh suggests Apple is “smoking crack” in another case, I'm going to suggest that judges are smoking crack here.

      What other natural phenomenon can I patent? The shape of a quartz crystal perhaps?

      It just goes to show that the separation of corporate and State is needed more now than ever before.

  • Along this course of "logic" - you will someday be paying royalties on genes that comprise your own personal traits.

  • by wermske (1781984) * on Thursday August 16, 2012 @05:44PM (#41017769) Homepage

    US Supreme Court precedent still holds that patents are invalid where they reiterate the 'laws of nature". This lower court ruling simply found, in another hearing of the case, that the two patents held by Myriad fail to meet the reiteration test. The lower court was directed to consider this rule as a guiding principle. They have done so. This does not preclude further appeal; however, given the very narrow nature of the ruling it is unlikely to have "major implications for cancer researchers, patients and drug makers."

    Certainly, it contributes to the body of common law; however, I don't believe there is deep policy significance in this latest ruling. The beauty of law is its ambiguity.

    • by LordLucless (582312) on Thursday August 16, 2012 @05:55PM (#41017881)

      The beauty of law is its ambiguity.

      Certainly, for those who make six figures exploiting such ambiguity it is.
      For people who actually just want to know whether a given action makes the liable or not, the ambiguity of the law is contrary to its fundamental purpose.

      • the ambiguity of the law is contrary to its fundamental purpose.

        The ambiguity is essential as no code base as large as the all the codes of laws can be shown as bug free. This ambiguity gives judges some leverage to correct the bugs...

      • six figures isn't much these days. I'm making six figures replying to you, I mean.... writing code... It's compiling?
    • by cpu6502 (1960974)

      I don't see how they can patent something they didn't invent. Breast cancer's been around longer than this company. Oh well. At least a patent only last 7 years (or at least until some idiot Congressman like Sonny Bono extends it to 105).

      • by Genda (560240)

        They patented something that already existed in the same way that Europeans claimed North America for various European nations when 120,000,000 people already lived here. Europeans apparently haven't got that whole prior art thing down yet.

  • ... in the US (Score:3, Interesting)

    by phorm (591458) on Thursday August 16, 2012 @05:45PM (#41017775) Journal

    Hopefully in the rest of the world, things will be more sane.

  • Hmm... (Score:5, Funny)

    by Antony T Curtis (89990) on Thursday August 16, 2012 @05:46PM (#41017789) Homepage Journal

    With these patents, does that mean that they own certain types of cancer?

    If so, then they should take responsibility of their property and stop being irresponsible and infecting people with their property.

    As remedy, I suggest that they fully pay for the treatment to remove their property from their victims and for the stress caused by their carelessness.

    • by Desler (1608317)

      With these patents, does that mean that they own certain types of cancer?

      No.

    • not sure if they promised a return/refund policy with their product.

    • by Ryanrule (1657199)

      Hell, think about the LIABILITY.

    • by six11 (579)

      Actually, if that reasoning were to apply elsewhere, Monstanto might actually have to take responsibility for infecting neighboring non-GMO fields with its seed. I agree with one of the posters below... the people with cancer would somehow end up owing the company money.

      I think I'll start a kickstarter fund to set up a colony on Mars, away from all this lunacy.

    • Don't you mean the victims must remove the stolen intellectual property from their bodies and compensate the patent holders for all of their losses and legal fees?
  • Wait, what? (Score:5, Insightful)

    by bmo (77928) on Thursday August 16, 2012 @05:47PM (#41017801)

    But according to the latest judges, the patents Myriad holds do not reiterate these laws. In the courtâ(TM)s decision, Judge Alan Lourie writes: âoeEach of the claimed molecules represents a nonnaturally occurring composition of matter."

    Like hell they are. This judge needs to go back to HS biology.

    --
    BMO

    • by zlives (2009072)

      quick some one patent the higgs before LHC claims they own patent cause they discovered it... that will get us in some heavy shit

    • Re:Wait, what? (Score:5, Informative)

      by tragedy (27079) on Thursday August 16, 2012 @06:09PM (#41018031)

      Regarding Judge Lourie from http://www.cafc.uscourts.gov/judges/alan-d-lourie-circuit-judge.html [uscourts.gov]:

      Before being appointed to the court, Judge Lourie had been President of the Philadelphia Patent Law Association, a member of the Board of Directors of the American Intellectual Property Law Association (formerly American Patent Law Association), treasurer of the Association of Corporate Patent Counsel, and a member of the board of directors of the Intellectual Property Owners Association. He was also Vice Chairman of the Industry Functional Advisory Committee on Intellectual Property Rights for Trade Policy Matters (IFAC 3) for the Department of Commerce and the Office of the U.S. Trade Representative. He was a member of the U.S. delegation to the Diplomatic Conference on the Revision of the Paris Convention for the Protection of Industrial Property, held in Geneva in October and November 1982, and in March 1984. He was chairman of the Patent Committee of the Law Section of the Pharmaceutical Manufacturers Association from 1980 to 1985.

      Judge Lourie was awarded the Jefferson Medal of the New Jersey Intellectual Property Law Association for extraordinary contributions to the field of intellectual property law in 1998; was a recipient of the Intellectual Property Owners Education Foundation Distinguished Intellectual Property Professional Award for extraordinary leadership in the intellectual property community and a lifetime commitment to invention and innovation in 2008; was a recipient of the Philadelphia Intellectual Property Law Association’s Award for outstanding IP achievement in 2010; was a recipient of the Boston Patent Law Association’s Distinguished Public Service Award in 2011...

      Good to know that these cases go to truly impartial judges.

      • Re: (Score:2, Flamebait)

        by westlake (615356)
        So you are telling us that a judge who specializes in patent law has over thirty years experience in patent law?

        Not to mention:

        Born in Boston, Massachusetts, on January 13, 1935, Judge Lourie received his Bachelorâ(TM)s degree from Harvard University (1956), his Masterâ(TM)s degree in organic chemistry from the University of Wisconsin (1958), and his Ph.D. in chemistry from the University of Pennsylvania (1965). He received his J.D. degree from Temple University in 1970.

        • Re:Wait, what? (Score:5, Informative)

          by tragedy (27079) on Thursday August 16, 2012 @08:20PM (#41019213)

          The Intellectual Property Owners Association:

          established in 1972, is a trade association for owners of patents, trademarks, copyrights and trade secrets. IPO is the only association in the U.S. that serves all intellectual property owners in all industries and all fields of technology.

          The association advocates effective and affordable IP ownership rights and provides a wide array of services to members. It concentrates on: supporting member interests relating to legislative and international issues; analyzing current IP issues; providing information and educational services; and disseminating information to the general public on the importance of intellectual property rights.

          Lourie is on the board of directors of this organization, which indicates a pretty clear bias on intellectual property issues. Eligibility for Membership on the Intellectual Property Rights IFAC

          He was also ice Chairman of the Industry Functional Advisory Committee on Intellectual Property Rights for Trade Policy Matters (IFAC 3) and:

          Committee members are U.S. citizens representing U.S. manufacturing or service firms, trade internationally, and have a special interest in and knowledge of international trade issues. Representatives of industry associations may also participate.

          So that's hardly a neutral position.

          He was also chairman of the Patent Committee of the Law Section of the Pharmaceutical Manufacturers Association from 1980 to 1985, and clearly the Pharmaceutical Manufacturers Association is not impartial.

          The rest of the stuff in there is recognition from all kinds of pro-ip groups. Based in this resume, this is clearly not a judge whose interests lie in exercising prudence when granting intellectual property rights to claimants. I left out the information on his eduction because it really has nothing to say about any potential bias or neutrality. It clearly does show, however, that he should be educated to clearly understand that "Each of the claimed molecules represents a nonnaturally occurring composition of matter" is a load of steaming genetic material. He clearly understands that the patent-holders in this case figuratively used a pair of pruning shears (which they didn't invent) to cut the (figurative) leaf off (still figurative) tree and then claimed the leaf as their own invention. His conceit is that the act of cutting the leaf off the tree is enough to make the "isolated" leaf an invention. That kind of logic effectively makes everything that can be discovered in nature patentable since the act of discovery "isolates" it from the rest of the natural world in which it originated.

  • by danbuter (2019760) on Thursday August 16, 2012 @05:50PM (#41017833)
    At least in the US, big pharmaceutical company profits are far more important than something as silly as the health of the general population.
    • by Un pobre guey (593801) on Thursday August 16, 2012 @05:55PM (#41017879) Homepage

      Patenting a gene because you made a detection kit for it is like invading Iraq because Saudis blew up some of your buildings.

      Oops! Sorry...

    • Re: (Score:3, Interesting)

      by west (39918)

      Do you mean that it's far better that everybody go without this discovery forever, than a large number of people (who can afford it, naturally) benefit during the patent period, and then everybody benefit from it afterwards?

      Or would you prefer to believe that in the absence of commercial medical research, government, which by their very nature don't tend to make risky investments that are unlikely to payoff, will miraculously somehow start funding expensive medical research?

      I'm a Canadian, and I like my che

      • by Grave (8234) <awalbert88NO@SPAMhotmail.com> on Thursday August 16, 2012 @06:20PM (#41018153)

        Scientists very rarely do any of the amazingly awesome stuff they do because they want tons of money. The people who fund the scientists only do so because they expect to make tons of money off of them. This is a very important distinction. Just like politics, if we remove money from the equation, a lot of good can happen. Medical and scientific progress shouldn't depend on the ability to turn a profit.

        • by west (39918)

          Medical and scientific progress shouldn't depend on the ability to turn a profit.

          Except it does, and it always will. A government that chooses dozens upon dozens of projects, all of which produce nothing (most medical research fails) is putting itself in the cross-hairs of the opposition, who will go to town with a long list of "wasted" millions on "junk projects".

          As someone who has been on the periphery of government funding of science, it's always amused me that the government wants to know what you'll d

      • by mirix (1649853)

        Yeah, we could never (almost) eradicate polio without some drug company patenting it, could we?

        I seem to think the funding for that research was via a non profit, as well, if not mistaken.

        Plenty of govn't funded research too.

        • by west (39918)

          Plenty of govn't funded research too.

          Indeed, But not near $100 billion dollars worth.

          For better or worse, medical research is now a *massively* expensive, high risk proposition. In other words, poison for any government that wants to remain in power.

  • Hooray! Now I can patent a gene that arose spontaneously in nature because I invented a detection kit based on standard published techniques I learned in grad school! Now if I could only patent an entire friggin' human chromosome... But which one, which one would be best...
  • by Trepidity (597) <delirium-slashdot@@@hackish...org> on Thursday August 16, 2012 @05:57PM (#41017913)

    Here's a fuller explanation from the opinion (not that I agree with it). They appear to be making a distinction between isolated DNA, which is allegedly nonnaturally processed in a way that renders it patent-eligible, and "native DNA" as it exists inside the human body, which is a natural occurring composition of matter.

    It is undisputed that Myriad’s claimed isolated DNAs exist in a distinctive chemical form—as distinctive chemical molecules—from DNAs in the human body, i.e., native DNA. Natural DNA exists in the body as one of forty-six large, contiguous DNA molecules. Each of those DNA molecules is condensed and intertwined with various proteins, including histones, to form a complex tertiary structure known as chromatin that makes up a larger structural complex, a chromosome. See supra, Figure 3. Inside living cells, the chromosomes are further encapsulated within a series of membranes and suspended in a complex intracellular milieu.

    Isolated DNA, in contrast, is a free-standing portion of a larger, natural DNA molecule. 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. For example, the BRCA1 gene in its native state resides on chromosome 17, a DNA molecule of around eighty million nucleotides. Similarly, BRCA2 in its native state is located on chromosome 13, a DNA of approximately 114 million nucleotides. In contrast, isolated BRCA1 and BRCA2, with introns, each consists of just 80,000 or so nucleotides. And without introns, BRCA2 shrinks to approximately 10,200 nucleotides and BRCA1 to just around 5,500 nucleotides. Furthermore, claims 5 and 6 of the ’282 patent cover isolated DNAs, e.g., primers or probes, having as few as fifteen nucleotides of a BRCA sequence. Accordingly, BRCA1 and BRCA2 in their isolated states are different molecules from DNA that exists in the body; isolated DNA results from human intervention to cleave or synthesize a discrete portion of a native chromosomal DNA, imparting on that isolated DNA a distinctive chemical identity as compared to native DNA.

    As the above description indicates, isolated DNA is not just purified DNA. Purification makes pure what was the same material, but was combined, or contaminated, with other materials. Although isolated DNA is removed from its native cellular and chromosomal environment, it has also been manipulated chemically so as to produce a molecule that is markedly different from that which exists in the body. Accordingly, this is not a situation, as in Parke-Davis & Co. v. H.K. Mulford Co., in which purification of adrenaline resulted in the identical molecule, albeit being “for every practical purpose a new thing commercially and therapeutically.” 189 F. 95, 103 (C.C.S.D.N.Y. 1911). Judge Learned Hand’s opinion for the district court in that oft-cited case held the purified “Adrenalin” to be patent-eligible subject matter. Id. The In re Marden cases are similarly inapposite, directed as they are to the patent ineligibility of purified natural elements—ductile uranium, 47 F.2d 957 (CCPA 1931), and vanadium, 47 F.2d 958 (CCPA 1931)—that are inherently ductile in purified form. While purified natural products thus may or may not qualify for patent under 101, the isolated DNAs of the present patents constitute an a fortiori situation, where they are not only purified; they are different from the natural products in “name, character, and use.” Chakrabarty, 447 U.S. at 309-10.11.

    • by Trepidity (597)

      (Reply to self.)

      Dammit, wrong subject. I was going to make a joke about how this decision might lead to a promising future treatment for diseases: now that DNA is patentable, perhaps courts can enjoin viruses from misappropriating it without license.

      Instead I ran across something actually interesting in the opinion and thought better of posting a lame joke rather than something serious, but forgot to change the subject.

    • So does this mean I can patent a branch? I mean, I know a tree occurs in nature, but severing the branch from the tree means that it does not occur in nature.
      • As long as you trim off any excess leaves and whatnot, you can patent a tree branch that occurs in a certain place in all trees. Especially if you have a lucrative diagnostic kit that will support lots of expensive litigation.
    • by dgatwood (11270)

      By that same argument, I hereby declare my intent to patent rocks cut into the shape of an iPhone. They don't exist in nature, and to my knowledge, nobody has ever made them before, so they should be worthy of a patent, right? After all, they're not the whole rock, just the part shaped like an iPhone.

      • But then Apple will sue you for having rounded corners. Better off simply patenting a stone cube.

      • by Trepidity (597)

        Agreed; I don't find it convincing for basically the reason the dissent states. The majority opinion tries to distinguish "purifying" from "isolating" on the basis that "isolating" changes chemical bonds and thus produces a new molecule. But that is basically how one "purifies" a gene to remove it from its surrounding, unwanted context.

    • So they seem to be saying that a purified sequence of nucleotides is fundamentally different than that same sequence found within a chromosome. To me, that seems rather like saying one could patent benzene (or a short polymer) because you can purify it from crude oil and it is fundamentally different than if you had a beaker full of crude oil. More abstractly, it's like saying you can patent a paragraph from a book because it's fundamentally different than the paragraph in the context of a book. Fair use

      • Composition of matter patents, that is producing something in a new form from two or more ingredients is one of the four original types of patents, going all the way back to the Patent Act of 1790.

        Such a composition must posses new properties to be patentable.

        It would take some pretty radical changes to patent law to make what Myriad did non-patentable.

  • by CuteSteveJobs (1343851) on Thursday August 16, 2012 @06:00PM (#41017949)
    Not only is this a stupid decision - that my genes can be patented by a third party - but it's a decision which will allow the patent trolls to monopolise them and will result in many, many deaths worldwide. These judges should be ashamed of themselves on both levels.

    Judge Alan Lourie writes: “Each of the claimed molecules represents a nonnaturally occurring composition of matter.. Oh bullshit. I've noticed when lawyers try and make decisions regarding science and technology - be it copyright or biosciences - more often than not they balls it up and the public is left to bear the cost of their arrogance. In this case research will be curtailed by other scientists not wanting to go anywhere near what may be patented technology, and members of the public will die. Talk about judicial arrogance.

    It was Judges Lourie and Moore who fucked this up. Bryson dissented. With such a narrow decision I hope the victims can appeal.
    http://www.aclu.org/files/assets/10-1406_0.pdf [aclu.org]
    • Re: (Score:2, Interesting)

      by Anonymous Coward

      Not only is this a stupid decision - that my genes can be patented by a third party - but it's a decision which will allow the patent trolls to monopolise them and will result in many, many deaths worldwide. These judges should be ashamed of themselves on both levels.

      Judge Alan Lourie writes: “Each of the claimed molecules represents a nonnaturally occurring composition of matter.. Oh bullshit. I've noticed when lawyers try and make decisions regarding science and technology - be it copyright or biosciences - more often than not they balls it up and the public is left to bear the cost of their arrogance. In this case research will be curtailed by other scientists not wanting to go anywhere near what may be patented technology, and members of the public will die. Talk about judicial arrogance.

      It was Judges Lourie and Moore who fucked this up. Bryson dissented. With such a narrow decision I hope the victims can appeal.

      http://www.aclu.org/files/assets/10-1406_0.pdf [aclu.org]

      Although it is easy to blame mass ignorance when pointing to those appointed to sit behind a bench (which could easily be the case here), did you ever stop and consider that the decision was made with full knowledge and understanding?

      I'm not trying to purport wrongdoing in this case, but when you consider the hundreds of billions of dollars that Big Pharma (or other patent holders) stand to make with a decision like this, one cannot remove the possibility of wrongful influence. The benefit is far too one-s

  • by fastbiker (1534261) on Thursday August 16, 2012 @06:19PM (#41018135)

    I used to work at Myriad Genetics on their lab software and believe me they don't give a single shit about anybody's health. They care about charging exorbitant amounts for testing and counseling. Remember, these tests do not definitely tell anybody they will get cancer. They are simply and statistical indicator.

    What Myriad patented are not the genes themselves (EVERYBODY has them). What they patented are the pattern of specific mutations of the BRCA1 and BRCA2 genes. It is these specific mutations (nucleotide patterns) within the genes that MAY indicate the POSSIBILITY of cancer. You have to also consider the medical and family history of a specific patient and then make a guess as to what the probability of cancer will be in the future. It's never a yes or no answer.

    To add insult to injury, the original research for finding the mutations of the BRCA1 and BRCA2 genes was done by the founders of Myriad at the University of Utah which is a state school. The public paid for the original research.

    • by west (39918)

      Isn't motivation irrelevant? After all, it doesn't affect what's offered.

      In the end, I think what's important is whether we would have these (and other) set of valuable tests if Myriad had not invested the considerable amount of money necessary to take the research from basic research to viable medical test.

      If that's the case, then the end result is that for now, a fair number of people who can afford it get the benefits now and the rest of us get it when the patent runs out, as opposed to nobody *ever* ge

  • Sadly there was a time when I was surprised by these type things.. the last 5-10 years or so.. not so much.
  • Just take the test elsewhere outside the US, make the cell collection in the US, send for analysis outside.

  • Obviously the Higgs Boson is a non-naturally occuring subsection of a molecule which can only be detected with special equipment provided by CERN.

    Pay CERN royalties for using their patented Higgs Boson or be subject to having them forcefully removed from your use.

  • Seriously, it's like saying we're slaves and the property of corporations.

    Which still aren't people.

    Canada and the EU plus ANZA ftw.

  • ...that I will get my genome sequenced in its entirety. Then patent each specific gene and gene combination.
    Anyone testing to have even a fragment matching me, excepting relatives forward and backwards 2 degrees, will be henceforth subject to a cease and desist, then possible civil and criminal action for violating my IP.
  • just add that anyone that tries to enforce their patent automatically invalidates said patent.

    problem solved!

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