Myriad Appeals, Says Gene Patents Should Be Allowed

from the but-of-course dept

Wed, Oct 27th 2010 10:02pm — Mike Masnick

This will come as no surprise to anyone, but Myriad Genetics has officially appealed the ruling that invalidated gene patents. As you may recall, earlier this year, a court noted that genes are unpatentable, noting that they "are directed to a law of nature and were therefore improperly granted."

Myriad is appealing on two points. First, it's claiming that the people who sued have no standing, because there's no controversy since the company hadn't taken any action against the plaintiffs. That seems like a pretty weak argument, given that Myriad had made it clear that it would enforce its patents against anyone else who tried to do research or genetic testing on the specific BRCA1/2 genes. Second, Myriad is claiming that the patents are valid, because it connected not just the gene (which is unpatentable), but the isolated gene combined with the information that this mutation predicts breat and ovarian cancer (also, unpatentable by itself). Basically, Myriad is suggesting that tying two unpatentable things together make this patentable. That makes little sense, and hopefully the appeals court sees through it as quickly as the district court did.

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Filed Under: brca1, brca2, gene patents, patents, standing
Companies: myriad genetics

24 Comments

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Jaws4theRevenge (profile), 28 Oct 2010 @ 12:18am

To be honest, I'm waiting for this victory for common sense to be overturned by an ignorant judge.
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Rinald J Roley, 28 Oct 2010 @ 12:50am

Absolutely It Should Be Patentable
Individually the two things may seem obvious. But it�s the putting the two together that makes up 99% of the invention. That�s where all their R&D investment went�into putting one of those two things next to the other thing. That�s what R&D labs all across this great nation of ours do every day. That�s what R&D basically is�putting obvious things next to other obvious things to come up with non-obvious, patentable things.

Put it this way: think of each thing as a dried pea. Look at each one, and it looks like nothing more and nothing less than a dried pea�it�s �obvious� that�s what they are. But put two of those dried peas next to each other, and from some angles one pea obscures the other, and so it�s no longer �obvious� that you can see the other pea. That�s where the invention comes in�in choosing the right angle from which to view the peas.

And all we�re saying the courts should do, is to give these Myriad�s peas a chance.
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Anonymous Coward, 28 Oct 2010 @ 12:55am

Re: Absolutely It Should Be Patentable
You're doing it wrong! You need to have a massive signature that consists of a bunch of useless self promotion, and it needs to be longer than the actual content of your comment.
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Anonymous Coward, 28 Oct 2010 @ 3:04am

Nina Paley
i should read those strips more often.
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alternatives(), 28 Oct 2010 @ 3:06am

If genes are no longer able to have patent protection
Where is Monsanto's dog in this fight?
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R. Miles (profile), 28 Oct 2010 @ 3:28am

Take the Monsanto approach!
Take nature, break it, force gene to fail, and pay for new genes with each use.

If Monsanto can do it with seeds, I'm sure Myriad can do it with genes.
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abc gum, 28 Oct 2010 @ 5:24am

It's not nice to patent mother nature.
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Steve R. (profile), 28 Oct 2010 @ 5:24am

Where Will the Liability End?
The cartoon reminded me of the Monsanto Round-up controversy. Thandian News wrote: "Lawsuits were filed demanding that these crops be placed on hold until more research can be done. Farmers and environmentalists are concerned that the seeds from these plants will effect other crops, and could create weeds which are impossible to kill."

So if a company like Myraid and Monsanto insist that they have a property right to genes for the purpose of extorting revenue, they should also be liable for the damages caused by the "escape" of their so-called property.
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Anonymous Coward, 28 Oct 2010 @ 6:19am

Re: Where Will the Liability End?
Unfortunately, that's not how it works. Instead they will try to minimize the damage done and pretend that there was no damage (ie: Gulf oil spill) and even the damage they can't deny they will claim it's not Monsanto's fault, largely because they contribute tons of money towards various campaign contributions.
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Anonymous Coward, 28 Oct 2010 @ 7:31am

Once again the people who OK these patents are idiots. What the hell does a clerk in the USPTO know about genetics and if a method is even valid in that field. Blind leading the Blind. What a joke patents have become!
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Anonymous Coward, 28 Oct 2010 @ 7:32am

Screw the USPTO! I got my shotgun.
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Paul Hobbs (profile), 28 Oct 2010 @ 7:45am

Re: Absolutely It Should Be Patentable
I was wondering where you were going with this, but I totally agree with you: we should all give peas a chance.
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Steve R. (profile), 28 Oct 2010 @ 8:14am

Re: Re: Where Will the Liability End?
These companies may still sue for infringement. After all - it is always the "consumer" who is responsible for using the product in the "correct" manner. So if a patented seed gets onto your property, it is your responsibility to eradicate it. But then in eradicating the seeds you would then end-up being open to being sued for property destruction.

I then don't suppose Monsanto would accept the cost of having their seeds or grown plants returned to them!
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jjmsan (profile), 28 Oct 2010 @ 8:18am

change
Unless you're having problems with filters breat should probably be breast.
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Hephaestus (profile), 28 Oct 2010 @ 8:22am

Re: Absolutely It Should Be Patentable
You do know that this patent has caused people to die? And that the monopoly rents that pharma and bio testing patents are responsible for in excess of 50 million deaths. WHO and the catholic church have both done studies on this.

So giving "Myriad's peas a chance" is not an option.
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Nastybutler77 (profile), 28 Oct 2010 @ 9:59am

Re: Re: Absolutely It Should Be Patentable
Haphaestus, your sarcasm meter seems to be on the fritz...
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Nastybutler77 (profile), 28 Oct 2010 @ 10:02am

Re: change
I don't know what "breat cancer" is, but I don't want it.
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Hephaestus (profile), 28 Oct 2010 @ 10:31am

Re: Re: Re: Absolutely It Should Be Patentable
I figured that out after I posted the comment ... Oops
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nasch (profile), 28 Oct 2010 @ 11:27am

Re: If genes are no longer able to have patent protection
They are still working on a genetically engineered superdog that will rip the competition to shreds with its razor sharp patents. Teeth. Wait, is this a metaphor or real?
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SLK8ne, 28 Oct 2010 @ 11:59am

Breat cancer?????
"this mutation predicts breat and ovarian cancer"
I know you got a lot on your plate Mike, so this is a gentle reminder to use the spell check.

Interesting article otherwise
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Jose_X, 28 Oct 2010 @ 5:31pm

Re: Nina Paley
Great cartoon.. whoever made it. I was reading comments to see if someone had said so already.
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Nina Paley (profile), 28 Oct 2010 @ 7:54pm

Re: Re: Nina Paley
Thanks! That would be me.
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Taki, 29 Oct 2010 @ 12:44am

Sadly the majority of funded companies will not do genetic research unless they can make a profit off of the results of the research.

However I do believe virtually all for profit business should be forced to adopt a sliding scale pricing model that would allow everyone to access the technology.

Don't bother flaming me and saying thats socialism.......I call your bullshit right now. What it is, is a fair and reasonable solution that allows companies to continue to make some form of profit from their work while insuring those who find themselves economically disadvantaged have access to everything their society can offer them.
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Anonymously Brave, 3 Nov 2010 @ 10:37am

If they can patent genes, then the heirs of Sir Isaac Newton should be able to patent gravity. Then anyone who isn't willing to pay the exhorbitant gravity licensing fees will be ejected into space.
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