Forgot your password?
typodupeerror
Australia Biotech The Courts Science

Australian Federal Court Rules For Patent Over Breast Cancer Gene 160

Posted by samzenpus
from the I-own-you dept.
Bulldust writes "The Federal Court in Australia has ruled in favor of U.S. biotechnology company Myriad Genetics, enabling them to continue to hold the patent over the so-called breast cancer gene BRCA1. The same patent is also being reconsidered by the U.S. Supreme Court in the current session. From the article: 'Federal court Justice John Nicholas has ruled that a private company can continue to hold a patent over the so-called breast cancer gene BRCA1, in a decision that has devastated cancer victims.The decision is the first in Australia to rule on whether isolated genes can be patented, and will set a precedent in favor of commercial ownership of genetic material.'"
This discussion has been archived. No new comments can be posted.

Australian Federal Court Rules For Patent Over Breast Cancer Gene

Comments Filter:
  • So the patent constitutes of the position of the sequence and the information at that position? Another thing why i think the patent system is broken.
    • The patent is about the method of diagnosis of a certain genetic condition using the mentioned gene. Couldn't find the reference yet, only Wikipedia [wikipedia.org].

      • I think the patent is the isolated (from its natural state) gene sequence. This article on the US court case, linked from the one you provided, has more details on the patent and the arguments for/against:

        http://en.wikipedia.org/wiki/Association_for_Molecular_Pathology_v._Myriad_Genetics [wikipedia.org]

        I can't help but wonder what our world would be like if our current patent system was in place when man discovered things like gravity, fire, magnetism and electricity. I'm sure there are some good arguments for gett
  • by Smivs (1197859) <smivs@smivsonline.co.uk> on Friday February 15, 2013 @06:45AM (#42908197) Homepage Journal
    This is another example of where the patenting system (around the World it seems) has just gone completely stupid. A gene is a naturally occuring entity and should not be patentable. Patents are there to give right of ownership of a novel idea, concept or mechanism, not things that already exist in nature. Have I got to patent myself now to stop anybody else from 'owning' me?
    • by Anonymous Coward on Friday February 15, 2013 @07:33AM (#42908421)

      This is another example of where the patenting system (around the World it seems) has just gone completely stupid. A gene is a naturally occuring entity and should not be patentable. Patents are there to give right of ownership of a novel idea, concept or mechanism, not things that already exist in nature. Have I got to patent myself now to stop anybody else from 'owning' me?

      I think that cancer patients should be given the legal right to REFUSE to have these patented genes in their bodies.

      Please make it mandatory to rid patients of such genes in a timely and safely manner, at the patent holders expense.

      I think that's fair.

      • by Gr8Apes (679165)
        Better yet - cancer patients should sue Myriad for "creating" such a flawed gene and attempting to profit off of it.
      • Re: (Score:3, Insightful)

        I think that cancer patients should be given the legal right to REFUSE to have these patented genes in their bodies.

        Please make it mandatory to rid patients of such genes in a timely and safely manner, at the patent holders expense.

        I think that's fair.

        I like where you're going with this... Fine... If they want to own the patent on a gene that causes cancer, they should also be legally liable for the all the damage it does. If they don't want liability they can always surrender the patent. Nice job.

    • by Mitreya (579078) <<moc.liamg> <ta> <ayertim>> on Friday February 15, 2013 @07:34AM (#42908425)

      A gene is a naturally occuring entity and should not be patentable. Patents are there to give right of ownership of a novel idea, concept or mechanism, not things that already exist in nature.

      You know, the explanation here may be simpler than it looks. A bribed or blackmailed judge? From TFA:

      Justice Nicholas also awarded costs against the applicants.

      He awarded costs to a private company that patented the gene against the woman who actually has (had) cancer?

      Have I got to patent myself now to stop anybody else from 'owning' me?

      Don't worry -- no one is going to 'own' you. But they will 'license' you and possibly 'terminate' you by extracting the body parts that have the gene when you can't pay the license fee. Better start saving now...

    • by tsa (15680)

      Have I got to patent myself now to stop anybody else from 'owning' me?

      I'm not sure about patenting yourself, but of course you can claim intellectual property ownership on yourself becouse you grew and made the shape you have all by yourself.

      But maybe the patent owner then claims that you copied a gene that they have patent on billions of times and thus you have to pay them trillions of dollars.

      • by Smivs (1197859)

        you grew and made the shape you have all by yourself.

        Oh, crap, you mean that's my fault!

    • by balsy2001 (941953)
      I call dibs on the patent for using expandable tissue in the thorax, driven by a remotely controlled diaphragm, to re-oxygenate blood and sustain life. While I am at it I will patent atmospheric gases within a specific range of concentrations on the surface of rocks orbiting around stars. Complete BS.
    • by Gr8Apes (679165)
      Next up - I'm patenting gravel. No concrete can be made without paying me.
    • This is another example of where the patenting system (around the World it seems) has just gone completely stupid. A gene is a naturally occuring entity and should not be patentable.

      The isolated gene, however, is not naturally occurring. You can't possibly infringe the patent by having the gene in you.

      There are other reasons why this might be a bad idea and other arguments for why genes shouldn't be patentable, but that's not one of them.

    • by Andrio (2580551)
      Just like farmers get sued by Monsanto because their crops are inadvertently cross pollinated due to nearby Monsanto crops, one day people will be sued because they inherited patented genes from their parents and didn't pay their own licensing fee.
  • by DeathToBill (601486) on Friday February 15, 2013 @06:54AM (#42908223) Journal

    Patents give an exclusive monopoly on the patented material. What exactly does a patent on a human genetic sequence give you? Does this mean that anyone with that sequence in their genome has violated the patent?

    Perhaps its my ignorance of genetic medicine, but the only way I can see this 'invention' being useful is in developing a test for predisposition to breast cancer. Does this mean no-one else is allowed to test for that genetic sequence?

    • by rastos1 (601318) on Friday February 15, 2013 @07:35AM (#42908429) Homepage
      I say: the company should be held liable for any damages caused by occurrence of the gene. Anywhere. That should serve them right.
      • by azalin (67640)
        A nice novel approach, but they'll probably reply that you are holding it wrong. That and "where's your license?"
    • You have it right. The gene is naturally occuring, but the patent prevents any other company 'using' the gene in an artificial way. That includes interpreting mutations in BRCA1 as part of a test, or selecting a treatment based upon the results of that test.

      • by Phrogman (80473)

        So they have found a gene that is related to or indicative of Breast Cancer, and then by patenting it (a fucking ridiculous concept) they can then prevent anyone who doesn't pay them from using it to cure cancer?

        These people - the entire fucking company - should be lined up against the wall and shot - or at least put in prison for life without parole, given the number of people who might die from cancer that *might* have been cured while they sat on this patent.

        This is obscene, utterly obscene. No one shoul

      • The gene is naturally occurring, sure. The isolated, amplified gene described in these patents - not so much.

        Lots of things that are claimed in patents are the result of manipulation of naturally occurring materials. In fact anything physical, made by man is basically a manipulation of naturally occurring materials.

    • by LoRdTAW (99712)

      "Does this mean that anyone with that sequence in their genome has violated the patent?"

      Yep. It's a conspiracy to allow Myriad Genetics to sue every breast cancer patient for infringing on their IP. Cancer patients will most likely settle out of court and have to pay Myriad a license fee in order for them to continue to have cancer. Otherwise they will have to have it removed.

      Maybe this will evolve into a new form of cancer treatment, simply sue the cancer out of them!

    • by Jon Abbott (723)

      Does this mean no-one else is allowed to test for that genetic sequence?

      Effectively, yes.

  • He is out of order (Score:5, Insightful)

    by Anonymous Coward on Friday February 15, 2013 @06:54AM (#42908233)

    If you read the ruling this Justice is out of line and is not upholding the law, but creating it.

    In response to an argument that this is a discovery and not an invention he actually states that if society does not provide financial incentive, companies wont be incentivised to perform genome research.

    So basically he has extended the concept of a patent to include discoveries in addition to inventions because he has a personal belief that because it takes lots of money to discover a particular gene, the discoverer should therefore have a monopoly on it.

    It is not his role to extend or create laws, it is his role to enforce the law as written, and no law has been passed stating that we as a nation consider a discovery worthy of a patent.

    • +1 Insightful, Informative

    • Re: (Score:2, Insightful)

      Gotta love them "living constitutions." No? You don't love them. Me neither.

      And the bad news is, we're outnumbered those who do.

      Those in power love them, because it removes a check on their power. And those who wish to be slaves, and want their neighbors to be slaves as well, love them too.

      More of them than us.

    • by Anonymous Coward

      When Bill Clinton and Tony Blair co-presented the revelation that human kind had sequenced the human genome they both stated that we have a moral and ethical obligation to ensure that the material remains open:

      http://www.youtube.com/watch?v=pwo8KxKFDO4 @15:00 is a good starting point on the ethical issues

    • It's called "judicial activism". Look it up. It has been used extensively in the past 40 years - and you're just now discovering this concept? You live in a cave or something?
      • Re: (Score:2, Informative)

        by Anonymous Coward

        I am the OP.

        I think you are confusing judicial activism with ruling from the bench.

        Judicial activism is a loose term which means that the judge applies their own beliefs in a ruling, which may apply here. In reality it means that the person who accuses a judge of activism disagrees with the ruling :)

        Ruling from the bench is where a judge effectively creates law in their ruling, which is the case here. Before, discoveries were not patentable, now, apparently they are. And in no house of parliament has such a

      • by Sique (173459)
        Judicial Activism is as old as courts are. You always had judges who were quite ingenious when it came to interpreting the current law.
    • Are you sure? I don't see the patent online, but it certainly would appear that long before the patent ended up in this courtroom the patent was actually granted in the first place, and while I'm unfamiliar with Australian law, it does appear to be in line with similar patent laws in the EU and US (so I'd assume a high likelihood that Australian law has also been modified to recognize gene patents.)

      Nor is the judge making a comment about financial incentives evidence of anything either. It's not unusual

    • Not to mention that according to other posts on this page, the research was done by PUBLIC UNIVERSITIES, not the "companies" the judge claims to want to protect.

    • If isolated genes actually did occur naturally this would be a discovery.

      Since they don't, the argument is they are an invention.

      It's more than just that though. Patents require that the invention be useful. In this case the gene in isolated form is useful because it can be used as a test for the likelihood of getting cancer.

      So it's not a patent of a gene in vivo just because it's been sequenced.

      It's a patent of an isolated gene that is useful in a lab test.

      Now a lot of people have problems with this for va

      • Yes, it's true that the patent is only on the isolated gene, and not the gene in the form as it exists naturally in the body.

        However, the process for isolating this gene is something that has already been done for years with other genes, so there is nothing patentworthy in isolating this gene.

        • Yes, it's true that the patent is only on the isolated gene, and not the gene in the form as it exists naturally in the body.

          However, the process for isolating this gene is something that has already been done for years with other genes, so there is nothing patentworthy in isolating this gene.

          But it's not a patent on the process, so the fact that the process has been done before is irrelevant. This is a patent covering a new composition of matter.

          It's like a patent on vulcanized rubber. You can't say that vulcanized rubber is not patent worthy, merely because heating things has been done for years.

  • That's it! (Score:4, Funny)

    by alexhs (877055) on Friday February 15, 2013 @06:57AM (#42908245) Homepage Journal

    That's it! I'm patenting oxidane. That's better than Brawndo anyway.

  • by buybuydandavis (644487) on Friday February 15, 2013 @07:12AM (#42908315)

    If the company owns our genes, shouldn't they be held responsible then they go wrong?

    • by alexhs (877055)

      That's not how patents work.
      No, what really happens is that the we will sue improperly licensed people getting breast cancer.
      See, if you intend to get breast cancer some day, you better get a proper licence right now.
      --
      A Myriad Genetics representative

      • We saw Monsanto suing farmers who ended up with their "Monsanto genes" in their crops.

        However, this is UNLIKE copyrights and patents because the huge elephant in the room is that nature has all the "prior art" in the case of Genes. Nobody should get a patent on FINDING a fucking gene -- only if they build one from scratch.

        If these a-holes want to patent Cancer -- they need to make it first. Though I don't see the practical use of a new cancer -- well, actually I do; it would be a lot like the "Anti Virus in

        • We aren't rewarding innovation anymore -- we are rewarding ownership of things nobody should have a right to.

          It's a rent seeking society, whether backed by government granted monopoly, licensing, or taxation.

    • by MobyDisk (75490)

      Samkiss explained it well. [slashdot.org] They aren't patenting the gene. They are patenting the test that looks for the gene. You can't patent a gene since that isn't an invention.

      • > Fighting cancer by affecting this gene's expression is a method.

        The method you use to effect the gene expression might be reasonably patentable, but patenting a motivation to effect gene expression shouldn't be.

  • so now cancer sufferers are willfuly producing cancer genes, in violation of patent law.

    stop it! or fines/imprisonment may result.

    • "so now cancer sufferers are willfuly producing cancer genes, in violation of patent law."

      You gotta wonder: if you get caught producing cancer genes and/or cells (= derivative works?) without a license, does that also mean the companies and their 'correctional facilities' will seek to cure your cancer?

    • Good job. You have successfully misunderstood a story that was in itself a misunderstanding.

  • by Anonymous Coward

    Tribe of amazons patents Y chromosome and demands immediate seizure and destruction of all infringing articles worldwide.

  • There is only one person who owns my genes: me.

    • There is only one person who owns my genes: me.

      Hmm... weird... another dualist. Do you own your body? Then, you can sell or give your body away... and let's say you do... what is left? Where are YOU?

      I look at it another way. I am my body, my body is me, thus, my genes are me as well.

    • by Meneth (872868)
      Your physical molecules, perhaps. But the information they encode cannot be "owned" at all. Get your vocabulary right.
  • American judges, at least in Texas, are dirt cheap.

  • cause that's where the interest of BRCA1 lies ...
  • I'll assume these 'judges' are mere idiots. The only other alternative would be bribe-takers. Karma now demands the Breast Cancer Fairy visit their families.
  • financially, morally, &c. for the care of _everyone_ who has the gene. Not just health care, feeding, housing, clothing, educating --- _everything_.

    If they're not willing to step up to the plate and be financially responsible for their property, it's abandoned and no longer theirs.

    William

  • Um... I'm new here, so that's it for now.
  • Umm, isn't the cancer itself prior art? Anyone who developed the BRCA1 mutation could claim to have created it previously.
  • This flies in the face of everything I understood about patents previously. Can someone in the know explain what's going on here?

  • A company has spent a fortune isolating a gene and identifying what the implications of mutations in that gene are.
    That is a good and useful thing, right? We would like to encourage that.
    Now then, how do we reward the company for their work?

    • by erroneus (253617)

      Buy any medicines they create.

      Are you seriously putting human life below profits? This lack of humanity needs to end.

  • In case no one else recognizes what is wrong with this:

    1. Profiting from the misery of others. (Obvious and immoral)
    2. Patenting doom.

    I guess #2 needs more explanation. Suppose someone creates a genetic mutation which is somehow not only inheritable, but communicable. (Say, through some sort of virus or something) Now, they can be the first to discover it and patent it as well. Then, if a cure is found by anyone, the creators can then seek to profit from it.

    Less bad scenario: Another genetic anomaly wh

  • CEO Your appointment to FEMA should be finalized within the week. I've already discussed the matter with the Senator.

    MANAGER I take it he was agreeable?

    CEO He didn't really have a choice.

    MANAGER Has he been infected?

    CEO Oh yes, most certainly. When I mentioned that we could put him on the priority list for the vaccine, he was so willing it was almost pathetic.

    MANAGER This cancer -- the rioting is intensifying to the point where we may not be able to contain it.

    CEO Why contain it? Let it spill over into the

  • Funny story.. kept on reading assuming I would eventually run into the fine print...ye know that little jem which says this is really about some clever method to detect a complex of genetic code not the code itself... such text never materialized.

    Was it ommitted or have things actually devolved to the point where we are seriously now yabbin about direct attempts at patenting gods handiwork just cause someone discovered what it does?

1: No code table for op: ++post

Working...