Breaking: Supreme Court rules human genes can't be patented.

[jagec]

Not really. They allow Myriad to patent the process of making cDNA (as they should), but do not stop others from isolating the BRCA genes in other ways.

But the process of making cDNA has been known for ages. Myriad didn't invent it, they just applied a currently existing technology to a new gene.

In other words, you can't patent Shakespeare (public domain), and you can't patent a photocopier (already invented), but you can patent the process of making photocopies of sections of Shakespeare to hand out in class? Furthermore, if you patent the process of photocopying King Lear, someone else can hold a different patent on the process of photocopying Macbeth?

This makes no sense.

 

[Eug]

Another more appropriate analogy would be:

Somebody has a book with a lot of cliff notes written on the sides. The cliff notes are not important to the text of the book.

Myriad can't patent the book. (original DNA)
Myriad also can't patent the photocopier, because they just used an off-the-shelf photocopier. (process to copy DNA)
Myriad can't patent a photocopy of the book either, because it's an exact copy of the original. (exact copy of DNA)

What Myriad can do though is use a technique to delete the cliff notes, and the make a photocopy with all the cliff notes removed. (cDNA)

That new version with the cliff notes removed is patentable.

As far as I'm concerned, that's a major fail by the American justice system. cDNAs from natural genes should NOT be patentable.

 

[JEDIYoda]

Levi Starss will be happy............as will Wrangler.....

 

[MaxPayne63]

Another more appropriate analogy would be:

Somebody has a book with a lot of cliff notes written on the sides. The cliff notes are not important to the text of the book.

Myriad can't patent the book. (original DNA)
Myriad also can't patent the photocopier, because they just used an off-the-shelf photocopier. (process to copy DNA)
Myriad can't patent a photocopy of the book either, because it's an exact copy of the original. (exact copy of DNA)

What Myriad can do though is develop a technique to delete the cliff notes, and the make a photocopy with all the cliff notes removed. (cDNA)

That new version with the cliff notes removed is patentable.

As far as I'm concerned, that's a major fail by the American justice system. cDNAs from natural genes should NOT be patentable.

So in layman's terms SCOTUS sided with them, then put on a show for the peasantry?

Looks like I was wrong about the check getting lost.

 

[jagec]

What Myriad can do though is develop a technique to delete the cliff notes, and the make a photocopy with all the cliff notes removed. (cDNA)

They did no such thing. This technique already existed and was in wide use. They just applied it to a specific gene.

 

[Eug]

So in layman's terms SCOTUS sided with them, then put on a show for the peasantry?

In a way yes. However, I wonder if they think they're doing the public a favour, by invalidating the idea that natural genes can be patented. Well they are, but I think they should have gone much, much further.

I don't care if the decisions made by SCOTUS make sense in the context of interpretation of the law. If that's the case, then the legislation fundamentally needs to be changed.

As far as I'm concerned, a cDNA is just a natural gene with the junk removed.

They did no such thing. This technique already existed and was in wide use. They just applied it to a specific gene.

You selectively quoted. To be clear, I didn't suggest they patented the process. (Any lab has to "develop" a technique or refine or whatever to make the process work in-house, but yes, it was a pre-existing technique.) What I did say was the law allows patenting of the end result, which is the final cDNA, and that is true.

However, I will adjust post for clarity. I will remove the word "develop" and put in the word "use".

 

[crashtestdummy]

But the process of making cDNA has been known for ages. Myriad didn't invent it, they just applied a currently existing technology to a new gene.

In other words, you can't patent Shakespeare (public domain), and you can't patent a photocopier (already invented), but you can patent the process of making photocopies of sections of Shakespeare to hand out in class? Furthermore, if you patent the process of photocopying King Lear, someone else can hold a different patent on the process of photocopying Macbeth?

This makes no sense.

To extend the metaphor, what they were saying is that you can't copyright an exact copy of Shakespeare, but you can copyright a special folio with liner notes written by scholars.

 

[SunnyD]

I think even if it applied to all species, Monsanto would still be safe. I think their patents are on modified plants, not just the gene itself.

Monsanto's products are based on viral/bacterial DNA's inserted into plant genomes.

Not really. They allow Myriad to patent the process of making cDNA (as they should), but do not stop others from isolating the BRCA genes in other ways.

The ruling is also not specific to human genes, saying the patents on BRCA1 and BRCA2 were invalid because the genes were a "product of nature."

It is likely, though, that the court will continue to allow patenting of genetic engineering products, suggesting that the genome of the product plant is new. In other words, Monsanto can't patent the BT gene and all its uses, but they can patent their varieties of BT corn.

The process that Myriad has patented is exactly the natural process that occurs in the body when transcribing DNA. Why should IT be patentable.

 

[bignateyk]

I think even if it applied to all species, Monsanto would still be safe. I think their patents are on modified plants, not just the gene itself.

I'm not a fan of Monsanto, but they are MODIFYING genes, not just identifying and patenting genes of the standard plant genome.

If someone modifies a human gene to do something new like provide super strength I don't think I would have a problem with them patenting it.

 

[jagec]

The process that Myriad has patented is exactly the natural process that occurs in the body when transcribing DNA. Why should IT be patentable.

The reverse transcription part isn't natural, but they didn't invent it either.

 

[Eug]

Yeah, as much as people hate Mosanto, I don't really have a problem with Mosanto's patents as mentioned above. These are serious modifications of the genes and represent unique work. I think the bigger issue with Mosanto are not these patents. It's the use of these products in the real world for crops, etc. It is beneficial in many ways, but it could also theoretically be a recipe for agricultural disaster if not managed properly.

 

[jagec]

To extend the metaphor, what they were saying is that you can't copyright an exact copy of Shakespeare, but you can copyright a special folio with liner notes written by scholars.

They did no such thing. The added NO information to the existing gene, and they didn't even splice it together in a novel way.

It's more like they took a handout of Romeo's lines that theaters already had laying around on notecards and photocopied it onto 8.5x11 paper. Neither the source text, the transcription of subsections of the text, the process of copying text, or the process of changing document format from notecards to 8.5x11 was patentable, and all was done routinely, and yet the Romeo patent was upheld.

 

[Eug]

It should be noted that Myriad's stock is way up.

Up 8.6% for the day in fact.

 

[glenn1]

Another more appropriate analogy would be:

Somebody has a book with a lot of cliff notes written on the sides. The cliff notes are not important to the text of the book.

Myriad can't patent the book. (original DNA)
Myriad also can't patent the photocopier, because they just used an off-the-shelf photocopier. (process to copy DNA)
Myriad can't patent a photocopy of the book either, because it's an exact copy of the original. (exact copy of DNA)

What Myriad can do though is use a technique to delete the cliff notes, and the make a photocopy with all the cliff notes removed. (cDNA)

That new version with the cliff notes removed is patentable.

As far as I'm concerned, that's a major fail by the American justice system. cDNAs from natural genes should NOT be patentable.

The value add isn't in the reproducing the original text but doing the research that provides an application for it. For example, if the book in question were a collection of case law, and you went through 1,000s of pages to find a legal argument that won at trial should you be restricted from being able to claim Intellectual Property rights over the application? In that case, the case law text you "photocopied" is a necessary precursor of the actual IP (using it as a winning legal argument).

While I'm neither scientist or lawyer, that sounds like what happened here. The company spent countless hours analyzing genes to identify one which causes cancer (BRCA1) and a test to identify who has it. Now you're saying that because "DNA exists in nature" that the company shouldn't be able to claim IP rights over the identification of the BRCA1 gene? How the fvck is that fair? And secondly, who would ever spend any time or effort to analyze genes to find which ones have disease-causing impacts if you can't monetize the findings?

The basic premise is the same as telling a miner that although they did all the work and digging to find gold, that they have no ownership rights to it after extraction because it's a "product of nature." Well the gold didn't dig itself up you know.

 

[Gibsons]

While I'm neither scientist or lawyer, that sounds like what happened here. The company spent countless hours analyzing genes to identify one which causes cancer (BRCA1) and a test to identify who has it. Now you're saying that because "DNA exists in nature" that the company shouldn't be able to claim IP rights over the identification of the BRCA1 gene? How the fvck is that fair? And secondly, who would ever spend any time or effort to analyze genes to find which ones have disease-causing impacts if you can't monetize the findings?

The basic premise is the same as telling a miner that although they did all the work and digging to find gold, that they have no ownership rights to it after extraction because it's a "product of nature." Well the gold didn't dig itself up you know.

The company didn't identify the gene by themselves. They benefited from a large amount of previous work, much of it publicly funded.

Second, the test for the gene is very standard methodology.

 

[zinfamous]

The reverse transcription part isn't natural, but they didn't invent it either.

It's like allowing them to patent the wheel. RT has been used daily in labs all over the world for many decades now. Myriad does absolutely nothing unique. ...and RT is natural.

 

[zinfamous]

While I'm neither scientist or lawyer, that sounds like what happened here. The company spent countless hours analyzing genes to identify one which causes cancer (BRCA1) and a test to identify who has it. Now you're saying that because "DNA exists in nature" that the company shouldn't be able to claim IP rights over the identification of the BRCA1 gene? How the fvck is that fair? And secondly, who would ever spend any time or effort to analyze genes to find which ones have disease-causing impacts if you can't monetize the findings?

You realize that this is pretty much what any genomics research lab in academia does?

So, why would they do it? For science, basically.

 

[glenn1]

The company didn't identify the gene by themselves. They benefited from a large amount of previous work, much of it publicly funded.

Second, the test for the gene is very standard methodology.

The gold miner didn't invent the shovel either, so what's your point? And nobody exists in a vacuum where they never receive benefit from publicly funded works - hell, I'm sure the miner used public survey data (maybe even from the Lewis and Clark Expeditions), does that mean he shouldn't own the gold he extracts? Alexander Fleming didn't "invent" penicillin by this standard and shouldn't have been allowed to patent it, since he only found mold growing (which is a natural product), who cares he actually provided the economic value of using it to treat disease.

 

[Eug]

The value add isn't in the reproducing the original text but doing the research that provides an application for it. For example, if the book in question were a collection of case law, and you went through 1,000s of pages to find a legal argument that won at trial should you be restricted from being able to claim Intellectual Property rights over the application? In that case, the case law text you "photocopied" is a necessary precursor of the actual IP (using it as a winning legal argument).

Except, it's not even that complicated conceptually. As long as you have the mRNA, you essentially have the cDNA as well. And indeed, the mRNA is naturally occuring too. BTW, in terms of conceptual difficulty, this is high school biology.

What they should be able to patent is the method for a new test technique utilizing that cDNA, but they didn't even do that.

But like I said, these moronic gene patents don't apply to us up here in Canada. And I guess the good news for the US is that Myriad's patents are ending soon anyway.

While I'm neither scientist or lawyer, that sounds like what happened here. The company spent countless hours analyzing genes to identify one which causes cancer (BRCA1) and a test to identify who has it. Now you're saying that because "DNA exists in nature" that the company shouldn't be able to claim IP rights over the identification of the BRCA1 gene?

That's exactly what I'm saying. And that's what the Supreme Court ruled in fact.

Except the test part. They didn't develop the technique for the test, and thus they can't have a patent on the test technique. The test is a standard one that had been used for ages.

How the fvck is that fair? And secondly, who would ever spend any time or effort to analyze genes to find which ones have disease-causing impacts if you can't monetize the findings?

Probably the same people who are analyzing genes now. University researchers, and big pharma looking to find new targeted drugs which they can patent.

 

[jagec]

The basic premise is the same as telling a miner that although they did all the work and digging to find gold, that they have no ownership rights to it after extraction because it's a "product of nature." Well the gold didn't dig itself up you know.

This is more like being the first miner to find gold, and then claiming an exclusive ownership on the concept of gold and requiring every other miner who ever finds gold, anywhere else on earth, to pay you licensing fees.

 

[glenn1]

This is more like being the first miner to find gold, and then claiming an exclusive ownership on the concept of gold and requiring every other miner who ever finds gold, anywhere else on earth, to pay you licensing fees.

Seems like the BRCA1 gene is one particular gold mine they dug, not every deposit in the earth's crust.

 

[Gibsons]

And secondly, who would ever spend any time or effort to analyze genes to find which ones have disease-causing impacts if you can't monetize the findings?

<----

 

[glenn1]

Except, it's not even that complicated conceptually. As long as you have the mRNA, you essentially have the cDNA as well. And indeed, the mRNA is naturally occuring too. BTW, in terms of conceptual difficulty, this is high school biology.

What they should be able to patent is the method for a new test technique utilizing that cDNA, but they didn't even do that.

But like I said, these moronic gene patents don't apply to us up here in Canada. And I guess the good news for the US is that Myriad's patents are ending soon anyway.


That's exactly what I'm saying. And that's what the Supreme Court ruled in fact.

Except the test part. They didn't develop the technique for the test, and thus they can't have a patent on the test technique. The test is a standard one that had been used for ages.


Probably the same people who are analyzing genes now. University researchers, and big pharma looking to find new targeted drugs which they can patent.

So I return to my earlier example of penicillin. Your premise is that Alexander Fleming shouldn't have been allowed to claim IP rights over or monetize the discovery of penicillin since Penicillin fungi are a "product of nature," but that a drug company that batch cultures it should be able to patent it as a drug?

 

[Eug]

Seems like the BRCA1 gene is one particular gold mine they dug, not every deposit in the earth's crust.

Another analogy would be this:

People know that due to the findings of the minerals in certain mines, a unique but natural type of gold probably exists, and we will call it BRCAgold.

Using off-the-shelf techniques, Myriad discovers BRCAgold in their own mine, and patents it. They then tell everyone in the world that nobody can test for BRCAgold, because they've patented it.

The only way you can look for BRCAgold in your own mine is if you use their test for BRCAgold, even though the test utilizes off-the-shelf techniques that they didn't develop.

This is why so many scientists think Myriad's patents are completely absurd.

What the Supreme Court has done is to invalidate the most absurd part of this, which is patenting the original natural gene. What the Supreme Court hasn't done is to invalidate the patent on cDNA of a natural gene.

 

[jagec]

Seems like the BRCA1 gene is one particular gold mine they dug, not every deposit in the earth's crust.

It's in people all across the earth. A researcher across the globe using completely different equipment could create cDNA of BRCA1 from a different source, and Myriad would claim ownership of the stuff in their tube.

Herein lies the danger of using physical analogies to discuss intellectual property.