Supreme Court to decide if human genes can be patented

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The US Supreme Court is about to hear arguments in a case challenging patents on breast and ovarian cancer genes. If the court upholds the company’s right to patent human genes, the course of US medical research could forever be altered.


The case involves the Utah biotech firm Myriad Genetics, which for years has been facing a lawsuit for placing patents on human genes and restricting cancer patients’ treatment options.

The molecular diagnostic company, which is based in Salt Lake City, holds a number of patents on genes related to breast cancer and ovarian cancer, two of which US District Court Judge Robert W. Sweet ruled invalid in 2010, the decision that Myriad appealed. The genes in question, BRCA1 an BRCA2, often appear in cancer patients, sometimes before the cancer has even developed. With methods to diagnose these genes patented by Myriad Genetics, patients are unable to go to any other doctors for a second opinion before seeking treatment.

“Myriad is gate-keeping who can do what research on these genes and they are uniquely aggressive in how they control a patent,” Karuna Jagger, executive director of Breast Cancer Action, told The Guardian. As a result of Myriad’s gene-ownership, other doctors and researchers are unable to develop alternate tests or treatment options, thereby giving cancer patients very few options.

Women with the BRCA1 or BRCA2 genes have no other options aside from taking the Myriad test, which is expensive and not always covered by insurance. Breast cancer survivors are expected to speak before the Supreme Court next week, where they will talk about the costs of the $3,000 tests that their health insurances did not cover.


continue to source article at rt.com

23 COMMENTS

    • In reply to #1 by rovert:

      If we are allowing the patenting of things that occur in nature I shall patient the genes required for respiration, might charge a yearly royalty, say $1000 per implementation.

      Or serve a “cease and desist” order ?

  1. I’m not qualified to comment on this, and will have to think about it, but at the moment it smells a bit off to me, and I have a feeling that it may end up stinking the place out.

    I don’t know where Craig Ventor stands on this, but I could hazard a guess.

    • In reply to #5 by Stafford Gordon:

      I’m not qualified to comment on this, and will have to think about it, but at the moment it smells a bit off to me, and I have a feeling that it may end up stinking the place out.

      I don’t know where Craig Ventor stands on this, but I could hazard a guess.

      Only on RDF would a comment begin like this. Well done, maybe some other sites could link to here to see an example of a proper honest comment.

  2. But my family have been using those genes for generations.

    Discoveries are not inventions. It should be that simple. But the opportunistic greed of nationalised patent offices are ruining the whole concept of patents.

    • In reply to #6 by old-toy-boy:

      But my family have been using those genes for generations.Discoveries are not inventions. It should be that simple. But the opportunistic greed of nationalised patent offices are ruining the whole concept of patents.

      I think perhaps you make a number of valid point.

      S G

    • In reply to #6 by old-toy-boy:

      But my family have been using those genes for generations.

      Discoveries are not inventions. It should be that simple. But the opportunistic greed of nationalised patent offices are ruining the whole concept of patents.

      “Discoveries are not inventions” Well said, I like that.

  3. There are examples of what qualifies as patentable material. The good news is that different jurisdictions have different criteria for making this determination.

    If the Americans decide that genes are patentable, so much the worse for Americans; other countries need not follow them.

    But because the US has many of the world’s leading research institutes and companies, allowing patents for genes there will have a (possibly negative) knock on effect for research generally around the world.

    I can see why companies that spend millions and years on RnD will want to recover some of that and even make a profit. However, many legal systems have historically seen to it that laws of nature and parts of nature, such as genes, do not qualify as inventions and therefore cannot be patented.

    • In reply to #8 by RDfan:

      There are examples of what qualifies as patentable material. The good news is that different jurisdictions have different criteria for making this determination.

      If the Americans decide that genes are patentable, so much the worse for Americans; other countries need not follow them.

      The bad news is that some already have.

      Australia’s Federal Court has ruled the patent on isolation of the BRCA1 gene to be legal.

      • In reply to #12 by QuestioningKat:

        I’m wondering if they are actually patenting the genes or the test to diagnose the issue ?? It seems to me that patenting the genes is problematic because you could patent the DNA for some sort of flu virus…and when does it become in public domain. To patent the process of finding the problem is different. “With methods to diagnose these genes patented by Myriad Genetics,” Is that the real issue — the method?

        Yes, it would seem that is so.

        In Australia’s Federal Court has ruled the patent on isolation of the BRCA1 gene to be legal:

        This was the core of the debate. Myriad Genetics argued that its patent related to isolated DNA and RNA, extracted from cells removed from human body and purged of other biological material with which it is associated in the cell.

      • In reply to #9 by Greyman:

        In reply to #8 by RDfan:

        There are examples of what qualifies as patentable material. The good news is that different jurisdictions have different criteria for making this determination.

        If the Americans decide that genes are patentable, so much the worse for Americans; other countries need not follow them.

        The bad news is that some already have.

        Australia’s Federal Court has ruled the patent on isolation of the BRCA1 gene to be legal.

        It should have only allowed a patent for the very specific method of finding those genes, not the gene itself. I think the Australian ruling amounted to a judicial system that didn’t understand what it was ruling on.

    • In reply to #8 by RDfan:

      There are examples of what qualifies as patentable material. The good news is that different jurisdictions have different criteria for making this determination.

      If the Americans decide that genes are patentable, so much the worse for Americans; other countries need not follow them.

      But because the US has many of the world’s leading research institutes and companies, allowing patents for genes there will have a (possibly negative) knock on effect for research generally around the world.

      I can see why companies that spend millions and years on RnD will want to recover some of that and even make a profit. However, many legal systems have historically seen to it that laws of nature and parts of nature, such as genes, do not qualify as inventions and therefore cannot be patented.

      I’ve never understood that “poor pharma companies just want to make back the money they invested” argument. Most of this basic research is funded by the government and non-profits. Even the industrial R&D labs apply for and get serious grant money from the US.

      Patents definitely have their place to give people credit for and incentive for new inventions but in the last few decades they have been wrongly applied to lots of things they have no business on. I’m talking about software development. Companies have been taking out patents on design patterns and algorithms that are documented in text books and then using them to stifle rather than encourage innovation. I fear the same thing is happening with gene patents.

  4. I’m wondering if they are actually patenting the genes or the test to diagnose the issue ?? It seems to me that patenting the genes is problematic because you could patent the DNA for some sort of flu virus…and when does it become in public domain. To patent the process of finding the problem is different. “With methods to diagnose these genes patented by Myriad Genetics,” Is that the real issue — the method?

    “patients are unable to go to any other doctors for a second opinion before seeking treatment.” Here is the other issue. With technology becoming so advanced how can their be a balance between the welfare of the people and allow free enterprise without creating a monopoly? How then is this or other research companies scrutinized for accuracy of the test? If their procedure is protected by patent and they are the only go to place, can the patient be confident that the test is correct? I had something similar happen to me years ago when I went to some alternative health clinic and they performed a Lyme’s disease test through a lab, Igenex. It came out positive, because they supposedly had some sort of patented test that showed more bands than the usual tests. I had no way to know if they were a scam. I had no way to check their data through another lab. The typical tests showed I did not have Lyme’s and this one showed more positive bands. I took the high doses of antibiotics, but I know now, stepped aside, the doctor was selling quackery.

    So perhaps I rambled on not fully knowing the issue. Please correct me. If the method is patented, then I see the court deciding with the lab. If the lab is patenting the actual genes then this is BS. It would be questionable whether any test method to diagnose problems with the particular gene is even accurate. How would this even be able to be double checked?

  5. I’ve had a little think about this, and reached the conclusion that it falls into the same category as the buying of seeds from poor countries, and then charging said countries a King’s ransom to buy back the resultant patented seeds.

    This is achieved by the purchasing company’s lawyers bamboozling the vendors during initial negotiations.

    If great care isn’t taken, this could all end in tears before bed time.

    On the other hand, as Topol would say, the argument against GM food is fallacious because everything we’ve been eating for about ten thousand years has been genetically modified during the processes of agricultural production, and all organisms are modified by natural selection.

    The worrying element in this case however is greed; what might be termed “The Coriolanus Syndrome”, or hoarding.

    But I’m still not quite sure what to make of it.

  6. The patent does not claim “a thing that occurs in nature”, it claims an isolated gene sequence (amongst other things), which certainly does not occur in nature, and a method for testing for them (I’m paraphrasing the actual patent) . People need to understand that before uttering the tabloid-headline grabbing “How can they patent life! How can they patent a discovery” (or similar).

    Also, even in the US, the patent does not stop non-commercial enterprises from utilising the isolated gene sequeces for pure, non-commercial research. So a govenrment or university research team are not prevented from working on it (except for the fact that they’re likely to be sponsored – so it would be commercial research).

    The real issue is – it’s a broad patent that would be difficult to circumnavigate with another test, the new test would still likely infringe the patent. the secondary issue is – it’s a pretty obvious patent, and should never have been granted in the first place as the claims lack any inventive step, but that’s my opinion.

    One can argue whether this is a good position to be in, when the technology is life-saving, but that’s not the same argument as “oh noes, how can they patent genes!”.

    • In reply to #17 by Roble:

      Hi Roble, Could I please ask that you explain this in more detail:

      The patent does not claim “a thing that occurs in nature”, it claims an isolated gene sequence (amongst other things), which certainly does not occur in nature, and a method for testing for them (I’m paraphrasing the actual patent).

      It seems to me that gene sequencing is the process of determining the precise order of nucleotides within a DNA molecule? If I’ve understood that correctly, then the actual sequence is a description of something pre-existing – i.e. a discovery and not an invention.

      That does not take anything away from a patent on a method for testing for that sequence.

      It is my understanding, from the original story, that Myriad Genetics has been placing patents on human gene sequences (i.e. discoveries)?

      Also, even in the US, the patent does not stop non-commercial enterprises from utilising the isolated gene sequences for pure, non-commercial research.

      That may be true, but it’s beside the point. The original article says that the reason the patent is being challenged is that it is restricting patient treatment – which seems to mean that patients are denied treatment.

      The real issue is – it’s a broad patent that would be difficult to circumnavigate with another test, the new test would still likely infringe the patent.

      Indeed so. In effect an attempt at making a monopoly of a discovery.

      The secondary issue is – it’s a pretty obvious patent, and should never have been granted in the first place as the claims lack any inventive step, but that’s my opinion.

      I haven’t read the patent, so I’ll take your word for it.

      One can argue whether this is a good position to be in, when the technology is life-saving, but that’s not the same argument as “oh noes, how can they patent genes!”.

      Well … how do they?

      Peace.

  7. Intellectual property law has gone far beyond protecting people’s rights for their honest endeavour and innovation. The whole of science, medicine, literature and technology is now bound up in legal webs which grow more complex and restrictive every year. IP law no longer guarantees just deserts to the toiler, but they are instruments for mulcting vast amounts of tribute from the people of the world, in the interests of imperial states and corporations. In many ways, they underpin the world’s economic order and they certainly hamper the development of scholarship

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