Supreme Court to Decide if Human Genes Are Patentable

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The Supreme Court announced Friday it would review a case testing whether human genes may be patented, in a dispute weighing patents associated with human genes known to detect early signs of breast and ovarian cancer. 


A 2009 lawsuit filed by the American Civil Liberties Union claimed among other things the First Amendment is at stake because the patents are so broad they bar scientists from examining and comparing the BRCA1 and BRCA2 genes at the center of the dispute. In short, the patents issued more than a decade ago cover any new scientific methods of looking at these human genes that might be developed by others.

The ACLU, representing dozens of patients and researchers, said the case challenges the legality and constitutionality of granting patents covering the most basic element of every person’s individuality. The civil rights group maintains that, “What is patented is the abstract idea that nature has made the two genes different in a manner that increases that person’s risk of cancer.”

The patents at issue gave Myriad Genetics, the defendant in the case, a virtual monopoly on such predictive testing for breast and ovarian cancer, according to the suit. Women who fear they may be at an increased risk are barred from having anyone look at their BRCA1 and BRCA2 genes or interpret them except for the patent holder, which charges about $3,000 per test or more.

Written By: David Kravets
continue to source article at wired.com

14 COMMENTS

  1. How is this even an issue? The concept of patenting a completely random set of information just because you were the first one to look at it is quite ridiculous in its own right, but these are the building blocks of life itself. Patenting those is riduculous.

  2. Patent law is incompatible with human freedom, justice, or natural law. Any government can establish any law, including changing the laws of physics, at any time. But the real action is the enforcement attempts.

    Patent lawsuits are always driven by attempts to impede a successful competitor, rather than to outperform a competitor. The party with the most expensive lawyers usually wins, regardless of the facts of the situation. Because there’s no principles of justice to be discerned by careful analysis of the facts and the application of legal principles or logic. Outcomes are inevitably arbitrary: luck, irrational biases, erroneous assumptions, and flawed logic, favouring parties with influential status in judicial circles.

    Seeing as patent laws apparently exist anyway, without a rational basis, then any new discovery could be deemed patentable. Including Higgs boson, or water on Mercury. If there’s any precedent (which there is for gene patents). I can’t see how conservative judicial experts would consider doing anything other than reinforcing the status quo. Darwin, Mendel, Crick Watson, Dawkins etc. will be regarded as naïve for failing to patent discoveries of genetic mechanisms in the first place.

    On the other hand lawyers were also naive for failing to patent the cease and desist letter, and the idea of patent law in the first place. They obviously think it’s a tremendously important invention and they’d claim patents are a crucial innovation essential for the progress of mankind. Members of such a valuable and innovative profession deserving rich rewards. Most lawyers would probably accept that contingency fee revenue from wining outrageous settlements in outrageous patent lawsuits is therefore reasonable and justified. So it seems unlikely the senior members of the legal profession would find otherwise.

    Genomes are now wide open for the first Russian mafia ex-KGB oligarch to register patent claims to any bits not deemed pre-existing discoveries. If any unpatented data is on a networked computer anywhere in the world then it should already have been fully ‘backed up’ by the relevant agency, along with the routine acquisition of credit card numbers and passwords.

    Same for music copyright. Anything goes when there are no principles of justice underlying legal processes. A court once ruled a musician violated copyright by including a prolonged rest in his composition. (Lawsuit originated by publishers claiming copyright to John Cage’s 4’33”.) 

    In Australia a musician performing in public must pay fees which are dispersed among music copyright holders in proportion to claimed sales of copyrighted music. The nature of the music is irrelevant. It might be the musician’s own composition, improvisation, or not copyrighted (or not even music). Nevertheless scheduled payments are mandatory in case the musician accidentally played a musical note or phrase that might have been already copyrighted.

    To be fully consistent then patent law could be extended in a similar way to copyright protections. Anyone who possesses a genome, and ‘performs’ it, say via gene expression during intracellular protein assembly, therefore might inadvertently benefit from patented genes. They should be compelled to pay for the privilege of retaining their genome, as a legal precaution just in case they express a patented gene.

    Say a reasonable rate of 1 cent per polymer created (rounding up to the minimum available legal monetary unit.) With the proceeds divvied among registered patent holders in proportion to their claims. Seeing as the law is an ass it makes sense to go the whole way, so everyone knows where they stand.

  3. If only the world was a simple place, where labels like “Republican” (sometimes given to people by others) told you everything about the labelled person!

    I guess I just prefer it when people don’t engage in unsubstantiated ad hominem attacks, when they could probably come up with some interesting evidence to start a real conversation about, say, the role that judicial ideology might play in this decision about gene patents. Oh well :)

  4. Sjoerd Westenborg
    Depending on how they rule, this could open the door to more possibilities. I’ve got dibs on the structure of water molecules!

    This is a very serious issue of corporate monopolies profiteering from restrictive patents.

    The “Malling series” is the name of famous apple rootstocks, developed by the UK East Malling Research Station.  If they had patented them (along with the Malling-Merton Immune series) instead of releasing them into the public domain, they would now have a dominating world monopoly of world apple production!

    Several of the Malling series rootstocks are several hundred years old and were known by other names before the Malling research center created a rootstock collection and renamed the rootstocks as follow :

    M.I (M.1), vigorous, had no name,
    M.II (M.2), vigorous, was “English Paradise”,
    M.III (M.3), semi-dwarf, had no name,
    M.IV (M.4), intermediate, was “Doucin jaune de Holstein”,
    M.V (M.5), vigorous, was “Doucin amélioré” (Improved doucin),
    M.VI (M.6), very vigorous, was “River’s nonsuch paradise”,
    M.VII (M.7), semi-dwarf, was “Doucin Reinette” aka “Doucin vert”, bred around 1688 in France,
    M.VIII (M.8), dwarf, was “french paradise” (Malus pumila) aka “Clarke dwarf”,
    M.IX (M.9) was previously known as “Jaune de Metz” or “Paradis”. Selected as chance seedling in France in 1828.
    M.XVI (M.16), Very vigorous, was “Ketziner Ideal”

    Only two of these original Malling selections, M.9 (Jaune de Metz) and M.7, are now used extensively by commercial orchardists.
    Later, further types were added to the original nine, though most of these were invigorating rootstocks which have since disappeared largely from commerce. – http://en.wikipedia.org/wiki/M

    http://upload.wikimedia.org/wi

  5. That’s like demanding no one look at your Toyota except the patent holder. Who gives a damn what the US Supreme Court says anyway? Evey other country should tell them to take a flying leap. I really think the CEOs and other C level professionals from these companies need to be profiled and denied access to whatever they want via the same argument.

    “I’m sorry Peter Meldrum, CEO of Myriad Genetics, I can’t pour you a coffee, only the patent holder can pour you a coffee.”

    “What’s that James S Evans, CFO of Myriad Genetics?—No, I’m afraid I can’t use the jaws of life to free you from your burning car, only the patent holder can use the jaws of life, I’m just a fireman.”

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