Surprise: Justice Department Says Isolated Genes Should Not Be Patentable

from the didn't-see-that-coming dept

Mon, Nov 1st 2010 2:58am — Mike Masnick

Well here's a surprise. In the appeal of the ruling from earlier this year that genes are not patentable, the Justice Department has decided to weigh in with an amicus brief, changing the government's longstanding position on gene patents. The government's official position is now that isolated genes should not be patentable, though it does suggest that "manipulated" DNA could be patentable. They basically make the argument that merely isolating a gene isn't an invention, which makes perfect sense. What's interesting is that the Justice Department's position appears to disagree with the USPTO's stated position until now. There must have been a hell of a political fight within the administration to get this through... Anyway, the full filing is after the jump.

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Filed Under: gene patents, justice department, patents

22 Comments

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BearGriz72 (profile), 1 Nov 2010 @ 3:36am

Governmental Common Sense
Isn't that an oxymoron?
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BearGriz72 (profile), 1 Nov 2010 @ 3:38am

BTW am I missing something?
"the full filing is after the jump"

Not that big a deal but I don't see it.
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- Mike Masnick (profile), 1 Nov 2010 @ 3:49am
  
  Re: BTW am I missing something?
  Not that big a deal but I don't see it.
  
  Yeah, just found a bug. Moved it above the jump so that it can be seen...
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- Haywood (profile), 1 Nov 2010 @ 3:53am
  
  Re: BTW am I missing something?
  There was an episode of Boston Legal where; An aids survivor whose body had just overcome the disease, tried to patent his DNA, only to find, his doctor had already done so.
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Johnny, 1 Nov 2010 @ 3:56am

Unbelievable
Unbelievable, if you think about it, that these companies patent stuff that they have merely COPIED.
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Anonymous, 1 Nov 2010 @ 4:31am

"...which makes perfect sense..."
Patents are granted for, e.g., new and nonobvious compounds of matter. Gene patents are for _isolated_ gene sequences. _Isolated_ gene sequences do not exist in nature, therefore they are patentable.

Want to explain why the contrary "makes perfect sense"? It seems to me your anti-patent bias is leading you to shoot from the hip again.

Your friend, Anonymous
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- fogbugzd (profile), 1 Nov 2010 @ 4:53am
  
  Re: "...which makes perfect sense..."
  Ants live in colonies. Isolated ants don't exist in nature. Putting an ant in a jar is not patentable.
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- fogbugzd (profile), 1 Nov 2010 @ 4:53am
  
  Re: "...which makes perfect sense..."
  Ants live in colonies. Isolated ants don't exist in nature. Putting an ant in a jar is not patentable.
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  - fogbugzd (profile), 1 Nov 2010 @ 5:10am
    
    Re: Re: "...which makes perfect sense..."
    Sorry abut the double post. That seems to happen when I post from my phone.
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- RikuoAmero (profile), 1 Nov 2010 @ 6:22am
  
  Re: "...which makes perfect sense..."
  Yeah they do. Viruses are made up of simple strands of DNA or RNA. Granted, there is debate over whether or not viruses are living organisms, and DNA does equal a gene, but you get the idea. What Mike Masnick doesn't like here is the thought that for example, a gene company can isolate a gene for say, red hair, and then be able to legally demand compensation from everyone with red hair. I know, it sounds ridiculous, but should a company claim ownership of the basic building blocks of life itself?
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  - RikuoAmero (profile), 1 Nov 2010 @ 6:24am
    
    Re: Re: "...which makes perfect sense..."
    "DNA does equal a gene"
    Meant to say does NOT equal a gene, sorry.
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- MAC, 1 Nov 2010 @ 7:27am
  
  Re: "...which makes perfect sense..."
  Plutonium does not exist in nature either...
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- Jon Lawrence (profile), 1 Nov 2010 @ 8:33am
  
  Re: "...which makes perfect sense..."
  Can you please explain how isolating a naturally occurring piece of matter is patentable?
  
  Your argument in my mind sounds like, "well, if one takes water, and removes the oxygen from it, the oxygen should be patentable."
  
  A gene sequence, as the name implies, is still made up of naturally occurring genetic material; e.g. NOT material created by the patent filer. (again, to state the obvious, isolating part of substance is NOT equal to creating the substance).
  
  The process of isolation may be patentable, but not the material.
  
  Am I missing something here?
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- Mike Masnick (profile), 1 Nov 2010 @ 11:37am
  
  Re: "...which makes perfect sense..."
  Patents are granted for, e.g., new and nonobvious compounds of matter. Gene patents are for _isolated_ gene sequences. _Isolated_ gene sequences do not exist in nature, therefore they are patentable.
  
  The US gov't appears to disagree with you.
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- Prashanth (profile), 1 Nov 2010 @ 4:32pm
  
  Re: "...which makes perfect sense..."
  Ammonia doesn't naturally occur. Should it be patentable? (For that matter, should the Haber process be patentable?) I think not.
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  - anon, 2 Nov 2010 @ 3:22am
    
    Re: Re: "...which makes perfect sense..."
    uh, ammonia is common, albeit shortlived, in nature-anyone that has toured a barnyard in summer can attest to that. It photodecomposes in sunlight quicky, but it's produced in quantity by urine. Oh, and Plutonium does exist in nature, briefly, a by-product of most fission (google on natural fission reactors, they've happened). It's has such a short half life, that there's pretty much none left on earth but for the artificially transmuted fission products of nuclear reactors.
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Bengie, 1 Nov 2010 @ 5:16am

Hmm
It was my understanding that naturally occurring things were not patentable.

I'm fairly sure DNA occurs naturally.

Now, a specific process to isolate those genes may be patentable.
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anonymous, 1 Nov 2010 @ 5:33am

Patents on life forms goes back to light beer yeasts, backfilled with 'plant breeders rights'
This is marvellous news! In the mid 1970's, Jeremy Rifken (sp?) brought up the issue at the Asilomar conference. As a then plant breeder in training, I found the notion of patenting life forms difficult enough to change careers. Harvard aquired a patent on the entire human immune system simply by splicing it into a mouse. It seemed utterly feasible from there, that one could patent a mouse with the full human genome in it, and with a little tweaking, fabricate clones that were fully human but legally mice, and sell them. We could make the Blade Runner/Android's Dream scenario a reality.
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- Anonymous Coward, 1 Nov 2010 @ 9:52am
  
  Re: Patents on life forms goes back to light beer yeasts, backfilled with 'plant breeders rights'
  Did you not hear? Scientists are already creating mice with fully grown human brains!!!
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Anonymous Coward, 1 Nov 2010 @ 5:44am

Holy crap! Maybe Jon Stewart did restore some sanity and reason to Washington!
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Anonymous Coward, 1 Nov 2010 @ 6:40am

Yea!
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Nina Paley (profile), 1 Nov 2010 @ 7:35am

incentives
But without patents, there will be no incentive for human genes to be created in the first place. Nice job, Justice Department - I hope you all enjoy living in a world WITHOUT HUMAN GENES!

/sarcasm
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