Judge Lets Gene Patent Lawsuit Move Forward

from the free-speech dept

Tue, Nov 3rd 2009 5:49am — Mike Masnick

A few months back, we noted that (finally!) someone was challenging the ridiculous and dangerous practice of patenting genes. The company being sued, Myriad Genetics, tried to have the lawsuit dismissed, claiming that the parties (the ACLU and some cancer patients) have no standing, but the judge was not convinced and is allowing the case to move forward, noting that there is a legitimate First Amendment issue to consider here. While just a preliminary step, this is definitely a step in the right direction.

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Filed Under: aclu, cancer, gene patents, patents
Companies: myriad genetics

9 Comments

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Free Capitalist (profile), 3 Nov 2009 @ 6:25am

Sweet for SCotUS
This is most welcome "good news". This is a fascinating use of the the First Amendment, classifying research as expression, and I hope it plays out.

Besides the obvious stagnation created by holding back research on gene sequences, I still have near "conspiracy theory" fears of having allowed information that is naturally carried within our bodies to be patented in the first place.

The defense presented a very familiar, and very hollow, argument I find very similar to some of the weaker rebuttals I've seen in the comments here:

In defense, Myriad argued that, among other things, the lawsuit should be tossed because the plaintiffs have no legal standing to bring the case, even though they were “ready. willing and able to infringe.”

Here is to hoping that Myriad grows no brain cells during the course of the trial.
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Dark Helmet (profile), 3 Nov 2009 @ 6:41am

Re: Sweet for SCotUS
"Besides the obvious stagnation created by holding back research on gene sequences, I still have near "conspiracy theory" fears of having allowed information that is naturally carried within our bodies to be patented in the first place."

The issue with patenting genes that's been raised before, both in fiction and otherwise, is that of ownership. If you can classify research as expression and also patent a specific genetic sequence, say a rare antibody that only appears in .01% of the population, then who owns those naturally occuring sequences IN that population? Wouldn't it have to be the patent holder? And if an outside entity can lay claim to possessing all or part of a person, even if it is just that antibody, wouldn't this be nothing short of a state-sanctioned form of genetic slavery?

As an example, say a person allowed research to be done on his genes at the University of Chicago Medical Center because he appears to be resistent to the Swine Flu. Say they discover in his genetic makeup something that produces an immunoglobulin that nullifies the Swine Flu. That research, under this theory, is covered as creative expression (ostensibly meaning it is copyrighted) and the University can patent the gene that produces the antibody. What normally happens is that the University will either sell the patent to a private industry, or they will license it out to a private industry to gain income from it.

So now you've got, say, Meridian Life Science Inc. licensing the gene with research that is covered as creative expression...meaning no one else can touch this gene...including those that produce it naturally! Those bodies in the population that produce the gene are infringing on the patent on the gene, and their bodies are infringing on the copyright of the creative expression (yes that's a stretch, but it'll be used). What would stop security wings of Meridian Life Sciences Inc. from picking up those people and holding them if they refused to allow further research on the genes and/or extraction of genetic material?
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Free Capitalist (profile), 3 Nov 2009 @ 7:06am

Re: Re: Sweet for SCotUS
What would stop security wings of Meridian Life Sciences Inc. from picking up those people and holding them if they refused to allow further research on the genes and/or extraction of genetic material?

I really need to make time to return to my reading list. I still have not read Crighton's Next.

Another thing, though, since The Human Genome Project was publicly funded, why the hell did they permit any particular sequence, without so much as an application, to be privately patented?

I understand they may have correlated the sequence to a disease, but as far as I can see they had no process or application to patent other than the information itself... which was mapped with taxpayer funds.
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Richard Ahlquist (profile), 3 Nov 2009 @ 7:12am

Its Simply Horrifying if this case dies and here is why
Take for example the recent findings the hairless mole rats are incapable of getting cancer due to a specific gene or sequence of genes. Now lets say MegaBuckethead insurance company has a research staff that discovers this sequence in some humans and patents it just to hide it from use. They then sell/license this information to the highest bidder in the insurance game and that insurance company cleans house of all people without this sequence.

Or take for example the CCR5 gene, delta 32, which is believed to be the reason some survived the Bubonic Plague and has also been indicated in HIV immunity(dunno if that's still holding true). Imagine if after the discovery of the plague resistance this information was patented and banned from research for other scientists?

Information about genetics belongs to the public, and should be shared for the greater good. Period.
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Dark Helmet (profile), 3 Nov 2009 @ 7:30am

Re: Re: Re: Sweet for SCotUS
"I really need to make time to return to my reading list. I still have not read Crighton's Next."

That is precisely where I came up with that scenario, I just altered the names to predict the complicit.

"Another thing, though, since The Human Genome Project was publicly funded, why the hell did they permit any particular sequence, without so much as an application, to be privately patented?"

Well, while I don't like the idea of gene patents, I'm not sure what the HGP would have to do with emerging patents on genetic sequences. It laid the groundwork for modern human genetic research, but only the ground work. The patents coming out stem from brand new research, it's not just parsing up bits of the HGP. The work these universities are doing is truly amazing, but the application of their research is becoming a bit frightening. What could more of an artificial roadblock to create profit for biotech firms than patents on natrually occurring genetic sequences? This idea that just because it took a ton of research, often times publically funded, to figure out what the genes DO doesn't negate the fact that they were produced naturally. If they're allowed to patent genetic sequences simply because they put forth a lot of mental effort to discern their application, then what's to stop someone from patenting the process of photosynthesis and demanding money from...well...EVERYONE. I mean, we all have to BREATHE, don't we? And our respiration is the direct result of photosynthesis, no?

You can see how silly this could all quickly become...
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SteelWolf (profile), 3 Nov 2009 @ 7:38am

Re: Re: Re: Re: Sweet for SCotUS
Photosynthesis? Boy, I wish I could make energy from light...sure would save a lot of time and money. ;)
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Jason, 3 Nov 2009 @ 7:49am

Re: Re: Sweet for SCotUS
"If you can classify research as expression and also patent a specific genetic sequence, say a rare antibody that only appears in .01% of the population, then who owns those naturally occuring sequences IN that population?"

Surely this would be instantly moot, since the discovery of it's existence in the population would demonstrate prior art.
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Dark Helmet (profile), 3 Nov 2009 @ 8:30am

Re: Re: Re: Sweet for SCotUS
"Surely this would be instantly moot, since the discovery of it's existence in the population would demonstrate prior art."

But if that's the case, then ALL naturally ocurring genetic sequences are unpatentable due to prior art...but that isn't what biofirms are pushing for. They actually want to codify the example I gave.
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Gena777 (profile), 12 Nov 2009 @ 8:40am

Gene Patenting
While I'm generally pro-IP, certain gene patenting provisions and practices do appear to call into question whether some gene patenting (and even some "green" patenting) adequately meets constitutional standards. After all, patent law ostensibly exists to serve the public interest.
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