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Australian Patent Lawyers Claim Patenting Genes Is Necessary For Biomedical Research

from the patenting-nature dept

Tue, Nov 17th 2009 2:52pm — Mike Masnick

Here in the US, there's an important legal battle going on over whether or not you can patent genes. Not surprisingly, we're very much against such a system, which gives a total monopoly to certain companies on doing certain types of genetic testing. It also makes no sense at all, as patents are supposed to be about promoting invention -- not finding something in nature that others can also find. Down in Australia, however, there's a similar debate going on, but in the legislative branch, rather than the judicial. Reader sinsi alerts us to the news of a recent panel discussion in Australia where a bunch of patent attorneys predicted the virtual collapse of the biotech industry in Australia if firms weren't able to patent genes.

This is, of course, ridiculous. First of all, much of the research on these things is often done via government and university funding -- and it's often done for reasons other than locking up a monopoly on the technique. Reasons such as helping people live better lives (*gasp* -- what a concept!). Or, more to the point, it's done so that firms can sell an actual product. If they have to compete in the marketplace, that's a good thing, as it pushes them to be more efficient and offer a better overall service, rather than just jacking up prices. And how do they offer a better overall service? Oh yeah, often by continuing to do more research and creating new breakthroughs.

These sorts of claims of industries collapsing are moral panics and folk devils put forth by patent attorneys who are really afraid that it's going to hurt their own business. There's simply no evidence at all that it harms the overall biomedical profession if they can't patent the finding of naturally occurring genes.

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Filed Under: australia, gene patents, patents

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rw (profile), 17 Nov 2009 @ 2:16pm

attorney
Have you noticed that these things ALWAYS come back to (or starts with) the attorneys? They seem to be the only winners in any of these situations.
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Pickle Monger (profile), 17 Nov 2009 @ 2:54pm

I still can't get my mind around how this is even a question. Any given person's genes are a (somewhat) random result of the mix the biological parents created. The genetic materials are all the same - DNA is composed of the same nucleobases regardless of race or creed. The whole thing is a naturally occuring phoenomenon. In fact, there are millions of years of examples of prior art. Any particular makeup is governed by nature or God (take your pick) regardless of the present and future human ability to influence it. Either way, how can this be copyrighted? Can I copyright the colour spectrum and then sue every company in the world for using those colours in the advertising? Or if the big pharma are "only" interested in copyrighting the specific makeups, then here's a great idea: people should copyright their fingeprints and their genetic makeup and, if ever necessary, deny the police the usage license if they ever want to compare them to those found at the scene of the crime or at least prohibit from ever being presented as evidence in court. They can claim it's a public performance or something. How did this ever even pass a laugh test???
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TheStupidOne, 17 Nov 2009 @ 3:33pm

I'm OK with gene patents
If they invented the gene. After all isn't a patent awarded to inventors? So if you have a patent on a gene then I assume you invented it.

Myriad Genetics (Utah Company), according to my previous statements I believe you to have heartlessly and brutally murdered thousands of women with your invention of genes causing breast cancer.
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Anonymous Coward, 17 Nov 2009 @ 3:52pm

Re: I'm OK with gene patents
What if they just splice two genes together? Or more than two? Start remixing genes like a collagist?

What if instead of people doing the due diligence it's a supercomputer?

Why would you treat genes the same way you would a piece of artistic human expression?

"Genes are property! My property! I found them, so you can't use them! Without paying up!"

Good luck in the future! You're going to need it.
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Anonymous Coward, 17 Nov 2009 @ 4:07pm

Plus what if they try to make me pay a licensing fee to visit my grandma? Jerks.
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counter productive, 17 Nov 2009 @ 5:43pm

Why should I donate?
If I were to donate to a charity, maybe one that does cancer research, how do I know that my donation is not used in the creation of an item which is withheld pending the highest bid?
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pr, 17 Nov 2009 @ 7:43pm

Some of each
Some gene patents are for creating something new, like glyphosate resistance implanted in soybeans.

Some are just for sequencing something that was already there, then claiming that they made an invention because they just invented a way to identify what they just found.

Although the first has lead to the Monsanto near-monopoly on seeds, it at least in principle is consistent with the spirit of the patent laws. The second is a crockery of feces, and currently under review.

To the point, the Australian lawyers might have a point. If other countries allow gene patents of the second kind but
Australia doesn't, it makes Australia a not very good place to put venture capital. Lowest standard of decency always wins.
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Anonymous Coward, 17 Nov 2009 @ 9:31pm

I never realized that a naturally occuring gene, per se, could be patented as many seem to believe.

Any examples of a naturally occuring gene being patented without other limitations recited in the claims?
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Fred McTaker (profile), 17 Nov 2009 @ 9:58pm

Shouldn't genetic sequences fall under Copyright?
Genetics boils down to a sequence of a small set of known molecules, forming a small alphabet (GCAT). Any gene old or "new" (I'm unlikely to agree with you on what constitutes new) is just a sequence of these letters, like a long German word. It's a language, so Copyright should apply, not Patents. But since most genetic sequences are taken directly from nature, any such texts are just relating facts, which aren't even subject to Copyright. So the scientists should tell the lawyers to shove it.
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Anonymous Coward, 17 Nov 2009 @ 10:34pm

"Australian Patent Lawyers"

Here is the key word here, this is the opinion of LAWYERS, not the opinion of SCIENTISTS in relevant fields. I DO NOT CARE WHAT THE LAWYERS THINK HERE, especially when they have a conflict of interest and more patents means more money for them.
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Anonymous Coward, 17 Nov 2009 @ 10:40pm

Re:
You're an idiot.

http://www.cnn.com/2009/HEALTH/05/13/genes.patent.myriad/index.html
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Anonymous Coward, 17 Nov 2009 @ 10:41pm

Re:
Or you're just an outright liar. Either way.
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Anonymous Coward, 17 Nov 2009 @ 10:44pm

Re:
"A striking 20 percent of all human genes have been patented."

(from the above link)
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Anonymous Coward, 17 Nov 2009 @ 10:59pm

Re: Re:
and this is why I have little respect for intellectual property maximists BTW. They have NO regard for the accuracy of their statements, they simply throw anything out there and hope something sticks in their favor. It doesn't have to be true or make sense, as long as they can find something that sticks in their favor they're happy. and they're lazy, they seem to put little to no effort into even doing a simple google search for patents on genes. A simple google search could have easily found that there does exist patents on naturally occurring genes but intellectual property maximists are too lazy to even do that. So why should I believe that intellectual property is about encouraging innovation when clearly intellectual property maximists are too lazy to even do a Google search yet alone innovate. The problem is that intellectual property maximists want to make money without doing any work so that they can make money off of the work of others and that's exactly what they intend intellectual property to enable them to do.
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No Imagination (profile), 18 Nov 2009 @ 4:28am

The product, not the gene
While my thoughts on this matter are usually in contrast to most other TechDirt readers out there, I do believe that following research, the PRODUCTS of genes (Proteins) can be/should be patented.

While we have the genetic code deciphered for humans (and many animals) there is far to little research out there pertaining to what these genes do.

If after 3-4 years of research on a gene or gene cluster, a potent protein that can cure a disease is discovered and proven to be a viable therapeutic, I see no reason why it should not be covered by patent laws for a set period of time.

However, to many people and companies (and Universities) started patenting 1,000's of genes, even though they have NO IDEA what they do. If you or I later start researching one of these genes, and its determined that it produces a valuable protein, well, the original patent holder gets all the credit/return. Most of the time you don't even know that the gene is patented.

The notion that it is 'natural' means nothing however - most (vast majority) of pharmaceuticals are natural or naturally derived.
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Anonymous Coward, 18 Nov 2009 @ 5:24am

Patenting the obvious
Can I Patent: "finding something in that others can also find and patenting it"
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staff3, 18 Nov 2009 @ 6:31am

nonsense
"It also makes no sense at all, as patents are supposed to be about promoting invention -- not finding something in nature that others can also find."

That is always the case with all inventions. The point is that without the promise of patent protection no one or few will make the effort to find new discoveries.
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Jerkface, 18 Nov 2009 @ 6:51am

Yet another iteration of the most basic legal argument...
Lawyers argue this type of crap all the time. "If our client doesn't get precisely what he wants in the form of massive governmental protections at public expense, his industry will collapse, it will stymie innovation, everyone will be unemployed, and it'll be a total disaster."

Go over to Ars Technica and read the following:

http://arstechnica.com/tech-policy/news/2009/11/hollywood-wants-to-own-your-outputs-an d-thats-a-good-idea.ars

It's the same shizzz. If we don't get what we want, we're not gonna do it at all.
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Mike Masnick (profile), 18 Nov 2009 @ 7:17am

Re: nonsense
The point is that without the promise of patent protection no one or few will make the effort to find new discoveries.

I always find this argument amusing, because it's empirically false. We've seen societies without patent protection, and their growth rates and innovation rates exceed other areas. So, yes, they do discover plenty of new things, and they make plenty of money by actually selling things.

The problem occurs when patent lawyers and those, such as "staff3" above, think that the only way to make money is to hold hostage companies who actually innovate.
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Anonymous Coward, 18 Nov 2009 @ 8:39am

Re: The product, not the gene
"While my thoughts on this matter are usually in contrast to most other TechDirt readers out there, I do believe that following research, the PRODUCTS of genes (Proteins) can be/should be patented."

I do not think they should be patented. No one should have a monopoly on it, we should try to innovate without patents and innovation is perfectly OK without patents.

"While we have the genetic code deciphered for humans (and many animals) there is far to little research out there pertaining to what these genes do."

That's because everything was going fine until patents came along and started taking over genes. Now everyone is afraid to figure out what these proteins do because the genetic code that creates them is patented. No, patents only get in the way of this sort of innovation, you want to innovate remove patents.
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Anonymous Coward, 18 Nov 2009 @ 8:41am

Re: Yet another iteration of the most basic legal argument...
Lawyers remind me of terrorist. "If you don't give me everything I want I will destroy this building" but replace that with "if you don't give me everything I want I will destroy the economy." And our stupid government gives in to these terrorists.
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Anonymous Coward, 18 Nov 2009 @ 8:48am

Re: Yet another iteration of the most basic legal argument...
Or they remind me of little kids.

"If you don't raise my allowance I'm not going to do my chores."

And our government makes very bad parents because they will give these children anything they want.
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Anonymous Coward, 18 Nov 2009 @ 9:00am

Re: Re: nonsense
I do not have the cites readily at hand, but I have read at least two studies that concluded "gene patents" (a term much more limited that it seems to suggest) wherein the impact of such patents was discovered to have virtually no meaningful impact on the activities of third parties. Is this really a pressing issue, or is more akin to a tempest in a teapot?
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Anonymous Coward, 18 Nov 2009 @ 12:31pm

Re: Re:
I never realized that CNN was an authoritative source for this new field of technology.

My question still stands since I have never seen a patent issued on a gene, per se.
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Anonymous Coward, 18 Nov 2009 @ 12:33pm

Re: Re:
How asking a question makes one a "liar" eludes me.

Why not try to answer the question before launching off on a silly tangent?
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Mike Masnick (profile), 18 Nov 2009 @ 2:38pm

Re: Re: Re: nonsense
I do not have the cites readily at hand, but I have read at least two studies that concluded "gene patents" (a term much more limited that it seems to suggest) wherein the impact of such patents was discovered to have virtually no meaningful impact on the activities of third parties. Is this really a pressing issue, or is more akin to a tempest in a teapot?

Tell that to the women who can not get a second opinion or a test from anyone other than Myriad Genetics for BRCA1 and BRCA2. I think that the impact is pretty major on them.

Or do you not think that those women's plights are "meaningful"?
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Anonymous Coward, 18 Nov 2009 @ 6:35pm

Re: Patenting the obvious
Sure, I found techdirt so I have a patent on it. If anyone else visits it they must pay me monopoly rents.
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Anonymous Coward, 18 Nov 2009 @ 6:37pm

Re: Re: Re:
I answered the question. The fact that you just ignore the answer makes you dishonest.
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Anonymous Coward, 18 Nov 2009 @ 6:39pm

Re: Re: Re:
Seriously, WHAT THE HECK IS WRONG WITH THESE INTELLECTUAL PROPERTY MAXIMISTS? Are you so used to getting away with blatant lies that you refuse to acknowledge the truth when it's apparently obvious to everyone?
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Anonymous Coward, 18 Nov 2009 @ 7:56pm

Re: Re: Re: Re:
And those "blatant lies" are....?

Or are you just venting?
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Anonymous Coward, 18 Nov 2009 @ 8:06pm

Re: Re: Re: Re: nonsense
I normally think about second opinions in the context of a medical diagnosis. I normally do not think about second opinions in the context of a test for a genetic marker.
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Anonymous Coward, 18 Nov 2009 @ 8:44pm

Re: Re: Re: Re: Re:
Implying and insisting that patents don't exist on naturally occurring genes when 20 percent of the human genome is patented.
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Anonymous Coward, 18 Nov 2009 @ 8:47pm

Re: Re: Re:
Your question does not stand, you have failed. You just simply refuse to accept the truth.

Here is an example.

http://www.techdirt.com/articles/20091102/2114366770.shtml

But of course you insist on being ignorant, deceiving, and dishonest.
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Anonymous Coward, 18 Nov 2009 @ 8:50pm

Re: Re: Re:
and in case you still insist on spreading blatant lies, go and read the URL's from that URL.

http://www.techdirt.com/articles/20090513/0051434857.shtml
http://www.wired.com/threatlevel /2009/11/genes/

20 percent of the human genome is patented and you still deny it because you're a blatant liar.
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Anonymous Coward, 18 Nov 2009 @ 8:53pm

Re: Re: Re: Re:
and here is a study that shows that 20 percent of the human genome are patented.

http://news.nationalgeographic.com/news/2005/10/1013_051013_gene_patent.html

But you're such deluded liar that you've even deluded yourself. You insist that despite the fact that STUDIES SHOW 20 percent of the genome is patented, ZERO GENES ARE PATENTED. SERIOUSLY, WHAT THE HECK IS WRONG WITH YOU. The blatant insistent dishonesty from intellectual property maximists is amazing. How the heck do you think that ANYONE here or ANYWHERE actually believes your lies? Honestly, are you so used to being able to get away with lies on mainstream media that you insist on continuing to try despite the fact that it's clearly not working? The mark of insanity is trying the same thing over expecting different results. YOUR LIES AREN'T WORKING, TRY SOMETHING ELSE.
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Anonymous Coward, 18 Nov 2009 @ 9:55pm

Re: Re: Re: Re: Re:
Perhaps if you read publications from organizations other than groups like this site, CNN, Wired, Nat'l Geo, you would come to realize that they are using "buzzwords" that inaccurately discuss what in fact is actually happening concerning what they insist on calling "gene patents".

Of course, it also helps to read decisions issued by the CAFC and the Supreme Court, in which case you would likely and quickly realize that what you have been reading to date bears virtually no resemblance to reality.

Until you do this your rants that one is "lying" will continue to fall on deaf ears. Say something substantive and accurate for a change, and an actual and informed discussion might actually take place.
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Mike Masnick (profile), 18 Nov 2009 @ 10:51pm

Re: Re: Re: Re: Re: nonsense
I normally think about second opinions in the context of a medical diagnosis. I normally do not think about second opinions in the context of a test for a genetic marker.

So you ignore the fact that you are wrong because it just doesn't seem important to you that people may be dying?

You are a sick, sick individual.
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hozelda (profile), 19 Nov 2009 @ 5:26am

Re: nonsense
[staff3]>> The point is that without the promise of patent protection no one or few will make the effort to find new discoveries.

That's obviously absolutely false with respect to mathematics, literature, software, and many other things were there is a huge human desire to participate in trying to be the first to create something or something the best. Success in all of these (and even failure) additionally can result in the bills getting paid.

With respect to drugs and other products or services related to gene research, I think there is absolutely no shortage of people willing to do the research. I also think there is no shortage of companies willing to manufacture and sell the drugs (just look at the generics industry as well as related natural health industries). There is a huge demand for the products and services. Humans need their periodic oil changes.

In terms of getting money to those that want to do the research, academic institutions, government grants, and numerous private sector sources have always been available for this. Those already participating have an incentive to invest some of their profits in research or look for partnerships.

Increased affordable computing power and do-it-yourself kits are allowing many people to participate (distribute costs and risks.. and rewards).

In any case, there are alternatives to a full monopoly grant for 20 years that would do less harm. Consider 5 years or instead of a monopoly, a guaranteed X% marketshare.

Without patents there will be some losses, of course. These will include the huge industry of overpriced goods and services that exists because of the patents. Some people would have to take a pay cut. Additionally, multi-billion dollar profits per quarter left and right will also have to be diminished.

On the plus side, discoveries should be faster since blocking off development in a field to a single player is never efficient as long as you have a healthy number willing and able to carry out the same work.

There are many organizations that would fund this research. You just wouldn't have a small few spending huge dollars trying to grab all the patents for themselves. Instead, you'd have more sharing and distributed costs and risks.

Patents lead to a great many inefficiencies all over the place. That is what happens when you give away monopolies. Just look at how vague are most patent claims. People are laying claim to things they hardly understand.
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Anonymous Coward, 19 Nov 2009 @ 8:19am

Re: Re: Re: Re: Re: Re:
"Perhaps if you read publications from organizations other than groups like this site, CNN, Wired, Nat'l Geo, you would come to realize that they are using "buzzwords" that inaccurately discuss what in fact is actually happening concerning what they insist on calling "gene patents"."

No, they are providing studies on gene patents and you are ignoring those studies because you're dishonest.

"Of course, it also helps to read decisions issued by the CAFC and the Supreme Court"

The point is that patents were issued on these genes, even if the courts overturned them. The mere threat of a lawsuit is enough to hinder innovation and the use of genes because lawsuits are expensive. And the patent office issuing patents on genes gives an excuse to file a lawsuit.

"Of course, it also helps to read decisions issued by the CAFC and the Supreme Court, in which case you would likely and quickly realize that what you have been reading to date bears virtually no resemblance to reality."

Please provide some evidence. SOME evidence. SOMETHING. You haven't provided any. Instead you make things up and say that your own word is evidence. I provide evidence, studies, examples, etc... and you provide absolutely nothing but your own lies.

"Until you do this your rants that one is "lying" will continue to fall on deaf ears."

Except you still haven't substantiated anything you said. Substantiate.

"Say something substantive and accurate for a change, and an actual and informed discussion might actually take place."

Substantiate your assertions with evidence instead of mere assertions and stop ignoring the evidence and maybe people would take you seriously.
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Anonymous Coward, 19 Nov 2009 @ 8:28am

Re: Re: Re: Re: Re: Re:
Here is a link.

http://www.ornl.gov/sci/techresources/Human_Genome/elsi/patents.shtml#2

It's very clear, this is even a gov website, that (naturally occurring) genetic sequences are in fact patentable and have in fact been patented. But you insist on defending your lies.

Also see

http://www.stn-international.com/usgene.html
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Anonymous Coward, 19 Nov 2009 @ 8:54am

Re: Re: Re: Re: Re: Re:
"inaccurately discuss what in fact is actually happening"

Naturally occurring genetic sequences are being patented. The use of those gene sequences anywhere is being patented. Naturally occurring genes are being patented. Same thing.
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Anonymous Coward, 19 Nov 2009 @ 8:57am

Re: Re: Re: Re: Re: Re:
and of course you're just an intellectual property maximist, why should you be honest? You just want your monopoly rents, that's the only thing you value. You don't value honesty and truth.
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Anonymous Coward, 19 Nov 2009 @ 9:04am

Re: Re: Re: Re: Re: Re: nonsense
The original question I asked was whether or not anyone had a citation to an issued patent that claims a naturally occuring gene without any other claim limitation.

The question remains unanswered, despite the efforts of those who may feel that references to non-technical media conclusively demonstrate their position.

I am not aware of any such patent, but then again I have never had occasion to work within the field of biotech.

For those concerned with BRCA1 and BRCA2 testing, the following may help answer many questions:

http://www.cancer.gov/cancertopics/factsheet/Risk/BRCA

Importantly, the test is not a diagnostic tool. It is a quasi-predictive tool that may assist in identifying if an individual has a higher risk for certain cancers than the general population in which BRCA1 and/or BRCA2 mutations are not present. Moreover, it is my understanding (though I am open to correction if I am mistaken) that the Myriad laboratory in Utah practices a specific method, but that other labs are available to practice other methods relating to detection of the mutations.
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Anonymous Coward, 19 Nov 2009 @ 9:20am

Re: Re: Re: Re: Re: Re: Re:
You are getting warmer in your quest as you are citing some material that at least bears a tangential relationship to the scientific community. However, I read these quite some time ago and they do not answer the question I posed.

It is easy to talk in generalities, but mine is a very simple and specific question asking merely for one data point.
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Anonymous Coward, 19 Nov 2009 @ 10:16am

Re: Re: Re: Re: Re: Re: Re: Re:
and you got multiple data points, the fact that 20 percent of the genome is patented. You simply ignore the facts.
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Anonymous Coward, 19 Nov 2009 @ 10:23am

Re: Re: Re: Re: Re: Re: Re: Re:
"The U.S. Patent and Trademark Office has granted thousands of patents on human genetic sequences."

http://www.aclu.org/technology-and-liberty/gene-patents

though I'm sure that won't convince you but it's for everyone who isn't as dishonest as you. and these are NATURALLY OCCURRING genetic sequences, they're human genetic sequences, that is, genetic sequences that have been found naturally occurring in the human genome.

But feel free to ignore the facts and provide zero evidence supporting your side. I provide lots of evidence, you insist on defending your lies and provide nothing.
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Anonymous Coward, 19 Nov 2009 @ 10:28am

"The lawsuit was filed on behalf of four scientific organizations representing more than 150,000 geneticists, pathologists, and laboratory professionals, as well as individual researchers, breast cancer and women's health groups, genetic counselors and individual women."

http://www.boingboing.net/2009/05/14/aclu-fights-gene-pat.html

It is interesting how scientists seem to be against patents but it's the LAWYERS that seem to be for them. Those who invent (scientists) are against them but those who profit from the inventions of others (lawyers) are for them. And then our broken government almost unanimously listens to those who don't invent but instead they listen to those who profit from the inventions of others (ie: intellectual property rights last WAY too long and look at how many patents are out there).
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Anonymous Coward, 19 Nov 2009 @ 10:33am

Re: Re: Re: Re: Re: Re: Re: Re:
and here again.

http://www.nature.com/nrg/journal/v1/n3/box/nrg1200_227a_BX1.html

Even Nature admits that NATURALLY OCCURRING genetic sequences are patentable and have been patented, that is any use of these genetic sequences by scientists would be infringement. These aren't engineered sequences that aren't occurring in nature, they're merely ISOLATED (read) from EXISTING NATURALLY OCCURRING sequences. That is they are naturally occurring sequences.
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Anonymous Coward, 19 Nov 2009 @ 10:36am

Re: Re: Re: Re: Re: Re: Re: Re: Re:
and to say that it's patented within its use is useless. A gene that produces sugar and is patented for that use is basically a patented gene, it's not like we can use that gene to build cars with. The body uses it to build sugar so patenting it for the purpose of building sugar is essentially patenting the gene.
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Anonymous Coward, 19 Nov 2009 @ 10:38am

Re: Re: Re: Re: Re: Re: Re: Re: Re:
"Claims can be drafted to the isolated genetic material itself. For example, a person could claim a patent right over isolated genetic sequences (for example, United States patent no. 6,083,688 — Platelet glycoprotein V gene and uses) or isolated genetic sequences, such as SNPs or ESTs (for example, United States patent no. 6,083,721 — Isolated nucleic acid molecules encoding PARG, a GTPase activating protein which interacts with PTPL1), or for a cDNA (United States patent no. 6,083,719 — Cytidine deaminase cDNA as a positive selectable marker for gene transfer, gene therapy and protein synthesis). "
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