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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.'"
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Australian Federal Court Rules For Patent Over Breast Cancer Gene

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  • 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?
  • Re:fucking great? (Score:4, Insightful)

    by Anonymous Coward on Friday February 15, 2013 @06:51AM (#42908209)

    instead of the research staying a trade secret

    False dichotomy.

    it's monopolised for 20 years

    20 years of unnecessary deaths so capitalism can have its way.

    and then in the public domain

    Except that it will likely trigger further monopolised research which receives other protections or is kept secret.

    this is devastating for cancer victims?

    Yes. Greed kills people.

    Any society organised on competition instead of cooperation, where a man's ultimate goal is to please himself rather than to lift up the world, will result in a lot of death. An extreme will always be harmful. Only a careful balance of individual vs group demands, as in the social democracy practised in Europe up to the early '80s, produces progress.

  • Re:fucking great? (Score:5, Insightful)

    by gnoshi (314933) on Friday February 15, 2013 @06:53AM (#42908221)

    A couple of points:
    1. The research wasn't completely privately conducted (universities, and other government-funded organisations were involved), so I think there is probably some reasonable expectation that the community will benefit as a result.
    2. I don't think it is acceptable for the manufacturer of the test to be able to set whatever price it chooses, even if that involves mandated licensing. That isn't to say that the business should not be able to make a respectable profit - after all, there was some risk involved on their part. However, because of the implications of the government-granted monopoly I think it is fair to have some constraints on that monopoly even within the 20 years.
    3. The real issue is actually the patenting of the gene itself. Patenting of the test is fine: it is an invention, and so a monopoly can be granted on that. However, the same can't be said of the genes.

  • 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.

  • 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?

  • Re:fucking great? (Score:0, Insightful)

    by Anonymous Coward on Friday February 15, 2013 @07:13AM (#42908325)

    This is what I've never understood with capitalism: thanks to limited liability, businessmen make far lower risks than the average worker, who has no protection from responsibility, yet businessmen seem entitled to far greater rewards.

    When will we abolish the LLC? When will it actually become possible for businessmen to go bankrupt again?

  • by buybuydandavis (644487) on Friday February 15, 2013 @07:19AM (#42908361)

    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 Mitreya (579078) <(mitreya) (at) (gmail.com)> 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 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.
  • Re:fucking great? (Score:0, Insightful)

    by Anonymous Coward on Friday February 15, 2013 @08:56AM (#42908877)

    Don't contribute this crap to capitalism. This is a case of a company influencing the state (to use its force) to get a monopoly because they don't want to compete in the marketplace.

    Greedy no-good companies abusing a broken patent system. At least in EU we don't have software patents nor can you patent a procedure.

    Australia, Japan and the USA is the worse when it comes to IP.

    Cheers,
    Jonas

  • Re:fucking great? (Score:4, Insightful)

    by samkass (174571) on Friday February 15, 2013 @10:13AM (#42909643) Homepage Journal

    Patents are for methods. Fighting cancer by affecting this gene's expression is a method. My understanding is that that's why it's patentable under current law. If you discovered that this gene also coded for lollipops, using it to manufacture lollipops would be separately patentable by my understanding.

    The goals of patents are twofold: 1. Allow one to recoup investment in research, and 2. Give an incentive to fully share information instead of keeping it as trade secrets. One might argue that in this case it did neither (since the research was separately funded and the scientific publication system already incentivized sharing), but any change in the law to exclude this case should still try to protect those two principles, IMHO.

  • Re:fucking great? (Score:5, Insightful)

    by hey! (33014) on Friday February 15, 2013 @10:44AM (#42909967) Homepage Journal

    One way patenting genes differs from patenting some kind of mechanism, is that there's almost always another way to accomplish what that mechanism does. I've heard a number of engineers make statements to the effect that the most important thing about an invention is that what it does is possible. So while a monopoly on a mechanism design is valuable, it does not stop all competition in that field of endeavor.

    A monopoly on a fact about nature isn't like that. If somebody claimed a patent on gravity, there are no alternatives. If someone patents a gene's involvement in a certain disease, there is no substitute for that fact to be discovered.

    Monopolizing genetic treatment and diagnosis of breast cancer by patenting BRCA1 is like monopolizing all flying and lifting machines by patenting gravity.

  • Re:fucking great? (Score:1, Insightful)

    by Gr8Apes (679165) on Friday February 15, 2013 @10:58AM (#42910149)
    You can still go bankrupt, even with an LLC. What won't happen is that some ditz who bought a hot beverage and spilled it in there lap and got burned because they couldn't be bothered to hold it while driving their car and texting can't bankrupt both the business and you personally, taking all your possessions in a lawsuit.
  • by Guest Blogger (2836413) <tom.guestblogger@be> on Friday February 15, 2013 @12:47PM (#42911687)

    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.

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