Can Genes Be Patented? Appeals Court Will Weigh In Soon
from the and-we-wait dept
It's been just over a year since a district court judge surprised much of the world by saying that you could not patent genes. This was a huge, and very smart ruling, but it certainly upset those who had been patenting genes (or making money off of those patenting genes) for many years. They insisted that this simply couldn't be true at all, and tried to hide behind claims that they weren't really patenting genes at all, but merely the process to separate out the genes. To hear them talk about it, the judge's initial ruling was so far out of left field that the appeals court couldn't possibly uphold it. Well, we'll soon find out. The case against Myriad Genetics and its patenting of the BRCA1 and BRCA2 genes has finally been heard by the Appeals Court, and we're waiting to see if they recognize the absurdity of patenting genes... or if they figure out some way to twist the law (which only allows patents on things made by humans...) into keeping gene patents around. Of course, whoever wins, this case will be appealed to the Supreme Court, who very well may want to weigh in. What's really sad is that a big part of the argument by those who want the lower court ruling overturned is that it will "upset" an entire industry. The real problem, of course, is that an entire industry was built up around these highly questionable patents in the first place.Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.
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Filed Under: brca1, brca2, gene patents, patents
Companies: aclu, myriad genetics
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Then I'll get my own patent too.
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I would like to think the inverse is true; if it's nature's handiwork, it's not patentable.
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The Supreme Court scares me...
Here's the problem with the Supreme Court.
You have Scalia along with Chief Justice Roberts
These two are the very epitome of backwards "Originalism" or "Contextualism". The problem is, they make opinions that aren't very forward thinking, nor are they grounded in the Constitution. In a few swipes of the pen, they both can force this absurdity to allow businesses to patent genes. Notice that during the business patents fiasco, they both stopped just short of ruling these unconstitutional.
What they will probably do is a very similar ruling. I doubt highly that either of them will truly work to rule this unconstitutional. And this truly scares me that neither of them, being as they're the most influential Justices, actually look for guidance from the Constitution.
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Monsanto?
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Can Genes be patented? Should they be patentable?
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Re: Then I'll get my own patent too.
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Re: Re: Then I'll get my own patent too.
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Re: Monsanto?
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Re: Then I'll get my own patent too.
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The "disrupt an entire industry" argument is, for openers, illegitimate. If you build your business model or industry on a patent on something you didn't really invent, and can't create from "scratch," that's like arguing that you're an American citizen and built your house on the National Mall or within a national park and saying I have to pay you to go there to boot.
By the way, has anyone considered the potential liability if they filed an application under penalty of perjury stating that they had invented and were entitled to a patent on the genes for virulent types of cancer, or on polio or smallpox.
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