Ruling Upholds Gene Patent In Cancer Test 173
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.
Re:Next up (Score:4, Informative)
Surely you're kidding about aspirin and ibuprofen. Both were developed by drug companies; they're not apples that fell from the trees into the drugstore.
One of those fell from a willow tree and has been used for more than 25 centuries... (Salicylic acid [wikipedia.org]) the trademark Aspirin was developed by a drug company, around the same time as Heroin.
Re:Obviousness (Score:1, Informative)
You can't patent the new steel, but you can patent the process for creating it. If someone figures out a separate process that also creates the same result, they can use that without paying you royalties, and even patent it themselves.
More simply, the steel is a discovery, the process for creating it is an invention.
DNA, RNA, and Genes (Score:5, Informative)
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