Appeals Court Says Genes Are Patentable, Because They're 'Separate' From Your DNA

from the chop-off-a-finger-and-patent-it dept

Fri, Jul 29th 2011 7:39pm — Mike Masnick

Well, this is unfortunate. We were quite happy with US district court judge Robert Sweet last year for making it clear that isolated genes are not patentable material in the Myriad Genetics case. This was one of those annoying patent situations where so many people had just assumed that genes were patentable for decades, without a single court testing that theory out. So industries were built up around the idea that genes could be patented. Thankfully, Sweet didn't let that bother him in pointing out that gene patents "are directed to a law of nature and were therefore improperly granted."

Of course, as expected, Myriad appealed, and even the Justice Department weighed in, saying genes shouldn't be patentable. However, the results of the appeal are in... and the Federal Circuit appeals court (CAFC) has reversed the lower court and said that patenting genes is just fine. The reasoning is bordering on ridiculous. The court effectively states that because isolated genes are isolated rather than a part of the full DNA strand, they are not "found in nature."

It is undisputed that Myriad�s claimed isolated DNAs exist in a distinctive chemical form--as distinctive chemical molecules--from DNAs in the human body, i.e., native DNA. Native DNA exists in the body as one of forty-six large, contiguous DNA molecules. Each DNA molecule is itself an integral part of a larger structural complex, a chromosome. In each chromosome, the DNA molecule is packaged around histone proteins into a structure called chromatin, which in turn is packaged into the chromosomal structure....

Isolated DNA, in contrast, is a free-standing portion of a native DNA molecule, frequently a single gene. Isolated DNA has been cleaved (i.e., had covalent bonds in its backbone chemically severed) or synthesized to consist of just a fraction of a naturally occurring DNA molecule.

Later, it reiterates that separating out these genes make them somehow "different" and not a part of nature:

In this case, the claimed isolated DNA molecules do not exist as in nature within a physical mixture to be purified. They have to be chemically cleaved from their chemical combination with other genetic materials. In other words, in nature, isolated DNAs are covalently bonded to such other materials. Thus, when cleaved, an isolated DNA molecule is not a purified form of a natural material, but a distinct chemical entity. In fact, some forms of isolated DNA require no purification at all, because DNAs can be chemically synthesized directly as isolated molecules.

Basically, they seem to be arguing that because a severed finger is not attached to a hand, the finger is not naturally occurring, and, thus, is patentable. Think about that. The dissenting judge in this ruling used a slightly less gruesome analogy, saying that the majority was basically saying that while a tree occurs in nature, snapping a leaf off the tree makes that leaf patentable.

The one good thing about the ruling is that it still rejects parts of Myriad's patents, but for other reasons, not because they're unpatentable parts of nature. The dissenting opinion from Judge Bryson (starting on page 88 of the ruling) is well worth reading. It starts out by attacking the problem with common sense, saying that if you were to ask someone if genes should be patented, they would answer, "Of course not. Patents are for inventions. A human gene is not an invention." But then Bryson goes on to discuss the more specific points raised by Myriad. First, he points out that Myriad didn't even really "invent" the key parts here:

At the outset, it is important to identify the inventive contribution underlying Myriad�s patents. Myriad was not the first to map a BRCA gene to its chromosomal location. That discovery was made by a team of researchers led by Dr. Mary-Claire King.... And Myriad did not invent a new method of nucleotide sequencing. Instead, it applied known sequencing techniques to identify the nucleotide order of the BRCA genes. Myriad�s discovery of those sequences entailed difficult work, and the identified sequences have had important applications in the fight against breast cancer. But the discovery of the sequences is an unprotectable fact, just like Dr. King�s discovery of the chromosomal location of the BRCA1 gene.

From there, Judge Bryson points out that an isolated gene clearly is a part of nature, and thus unpatentable:

Myriad is claiming the genes themselves, which appear in nature on the chromosomes of living human beings. The only material change made to those genes from their natural state is the change that is necessarily incidental to the extraction of the genes from the environment in which they are found in nature. While the process of extraction is no doubt difficult, and may itself be patentable, the isolated genes are not materially different from the native genes. In this respect, the genes are analogous to the �new mineral discovered in the earth,� or the �new plant found in the wild� that the Supreme Court referred to in Chakrabarty. It may be very difficult to extract the newly found mineral or to find, extract, and propagate the newly discovered plant. But that does not make those naturally occurring items the products of invention.

The same is true for human genes.

This case is far from over. It seems likely that CAFC will quickly be asked to rehear the case en banc (with the full slate of judges in the court, rather than just a panel of three), and after that it will likely go to the Supreme Court. Still, it's unfortunate that CAFC went this way, and hopefully a later ruling rejects this momentary lapse of reason.

In the meantime, it'll be important to pay close attention to what happens in the "sister" case to this one, Prometheus Laboratories v. Mayo Collaborative Services, in which there's a question of whether or not diagnostic tests can be patentable. In that case, like this one, CAFC said diagnostic tests are patentable, and that case has now moved on to the Supreme Court, which will likely hear the case in the fall. That may be a precursor to the final result in this case.

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Filed Under: brca1, brca2, cafc, dna, gene patents, patents
Companies: aclu, myriad genetics

107 Comments

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xenomancer (profile), 29 Jul 2011 @ 7:48pm

DNA, with Logic
Let me get this straight:

A gene (or, piece of DNA) is patentable because it isn't the whole DNA strand. Which implies that discrete segments of genetic code that do not constitute the whole of the genome involved are therefore not inherently "found in nature." So, what the fuck happened to the RNA and/or protein that many of these genes code for? Hell, HIV is a RNA retrovirus. Can I patent the DNA mirror image that hijacks lymphocytes? Did ANY of these judges EVER bother to think beyond "that's one of those evy-dency acronyms we like to use a lot [/Shatner], and it can't be natural because we use it, like (a) tool(s)" while reversing the logical lower court ruling?

Why is DNA suddenly being considered in a vacuum? I'm pretty sure there's a bit more to it than "we have DNA, and cells 'just work'[/sarc]."
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Zot-Sindi, 29 Jul 2011 @ 8:00pm

/tinfoilhat

so how long before we start patenting actual DNA and complete the slide down the slippery slope of patent despair? (oh you can't marry them without permission/license to do so otherwise you'd be infringing on their family DNA patent)

hey it sounds stupid and crazy but so does what they are trying to do now and when you give a mouse a cookie.....
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Michael (profile), 29 Jul 2011 @ 8:03pm

It sounds like a joke disprove by contradiction.
Genes are patentable -> Genes are separate from DNA

therefore,
Genes are NOT separate from DNA -> Genes are NOT patentable.
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Shane C (profile), 29 Jul 2011 @ 8:14pm

Trolling
I'm beginning to honestly think that the US Court system is simply trolling.
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Anonymous Coward, 29 Jul 2011 @ 8:49pm

So...if someone patents my genes, can I be sued?
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Anonymous Coward, 29 Jul 2011 @ 8:58pm

The U.S.A, Plutocratic to the core.
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Anonymous Coward, 29 Jul 2011 @ 9:18pm

Re:
On if you used them in an unlicensed way, such as donation bodily fluids
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fb39ca4, 29 Jul 2011 @ 9:30pm

While they're at it, they need to set a precedent for what is considered patent infringement. While I do not support genetically modified organisms, they do seem patentable to me and I don't have a problem with that. (It will just slow down innovation in that area which I see as good, and people will just pirate the seeds. Hmmm, that's a lot of similarities there, but that's another story.) However, I do have a problem with biotech companies suing farmers whose crops got inadvertently cross pollinated by the wind with patented GMO crops from neighboring farms for patent infringement. Ideally, if the "infringement" occurred due to nature, then it should be nobody's fault and the case should just get thrown out of the court. (Or the biotech companies could always try suing Mother Nature, but good luck with that.) And anyways, I thought patents were to stop one company from ripping off another's idea and selling it. I wonder how the consumer got involved in patent infringent...
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Anonymous MadScientist, 29 Jul 2011 @ 9:51pm

fingers and hand
I really loved that finger-severed-from-the-hand analogy! +1 internets ossum.

I am now attempting to patent human excrement, because it is obviously not found in nature and is separate from the intestinal system producing it. Therefore, in the future, I will be rich, rich, rich from these giant mountains of crap! Ah hahahahahahahaha! *ominous thunder crash*
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aldestrawk (profile), 29 Jul 2011 @ 9:51pm

Describing a gene as not ever existing separately in nature from a much larger DNA molecule ignores four things that I can think of offhand.

1). After transcription to RNA, the translation machinery that is used to make proteins during gene expression chemically isolates a gene. That is not to say all the covalent bonds to the larger DNA molecule are cleaved, but that the chemical behavior of the DNA fragment that is a gene is isolated.

2). the existence in nature of restriction enzymes that do cleave DNA molecules at specific sites.

3). Recombination, both meiotic and mitotic, on the same chromosome. This most commonly involves groups of genes but recombination where a single gene is involved is theoretically possible.

4). Transposons. I don't know enough about genetics to know if a single-gene transposon has been discovered. Regardless, it shows that a DNA molecule is not the unbroken set of genes as characterized in this ruling.
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Anonymous Coward, 29 Jul 2011 @ 9:54pm

Slavery
Some people were considered property in the past, so it is not exactly a new development.
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Old Fool (profile), 29 Jul 2011 @ 11:20pm

Dearest Children,
To you I leave my DNA.
This is my immortality - for none other shall own it than you, your children and their children ad infinitum.

The car, land, house, money and other mere material trappings of which I have been temporary custodian are also your to use as you will.
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Anonymous Coward, 29 Jul 2011 @ 11:37pm

Why stop there? My DNA was created by me so therefore I can now apply for copyright on my specific DNA. Of course that means that anyone taking a DNA sample from me would be making illegal copies of my DNA and therefore committing copyright infringement unless I license it to them. Imagine the field day defense lawyers would have with that for their defendants who were convicted based on DNA evidence where they didn't consent, or license, their DNA to the police forensic team that illegally copied it. Want me to donate blood? Pay me a license fee. Need me to donate a kidney? Well that is going to require a site license. Need 1/3 of my liver? That is going to require a distribution license since you will be making copies of my DNA when the liver cells replicate themselves within your body. That girl you knocked up that one drunken night you didn't double-bag it? She can forget about child support as she will surely owe you more than you owe her because it costs a fortune to obtain a lifetime license! Imagine the possibilities! Thank you American legal system for the intellectual property laws gone mad!
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The eejit (profile), 29 Jul 2011 @ 11:45pm

So, DNA, which is basically living software, is patentable?

What the fuck?
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Nicedoggy, 29 Jul 2011 @ 11:47pm

Re:
According to precedent any infringing product must be destroyed.

See Monsanto.
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G Thompson (profile), 29 Jul 2011 @ 11:49pm

I'd really like to know how the US Pharma Corps are going to deal with this when only the USA considers any parts of human DNA be it a subset of gene[s], or the whole, as absolutely NON Patentable since the obviousness is that they are part of Nature.

What this will mean is that the rest of the world will be able to achieve benefits from innovation in a quick and efficient manner, whereas the USofA, as it is in most technical areas nowadays, will be embroiled in a litigious quagmire of unfathomable depth.

Good luck having Any Gene patents allowed outside of the USA, and most governments around the world wont give 2 craps whether they are breaching so called international patent diplomacies/rules by not applying them. And the USA's normal stick waving threats of economic sanctions are seriously not going to work much if at all anymore.
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G Thompson (profile), 29 Jul 2011 @ 11:52pm

Re:
Crud..

The first paragraph should read
I'd really like to know how the US Pharma Corps are going to deal with this when THE REST OF THE WORLD considers any parts of human DNA, be it a subset of gene[s], or the whole, as absolutely NON Patentable since the obviousness is that they are part of Nature.

I blame it on being a Saturday here ;)
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G Thompson (profile), 29 Jul 2011 @ 11:58pm

Re:
Actually seeing as it is now patentable in the USA, shouldn't your last sentence be.

I need a license now to Fuck?
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person who is familiar with molecular genetics, 30 Jul 2011 @ 12:16am

This article is misleading
This article is misleading because it does not mention the background leading up to the initial suit by Myriad. As I understand it, Myriad sued scientists at the University of Pennsylvania for using a method that Myriad developed and patented. I would be willing to bet that Myriad spent a considerable amount of money developing the method for detecting mutations in the BRCA1/2 genes that predispose women to breast cancer. Therefore, it is understandable that they would like to profit of their investment. The scientists at the Penn infringed on Myriad's patent's by using a their method and profiting off it without paying Myriad royalties.

With that background in mind, this article misleads further by not explaining that it is really a method that is in dispute, not an "isolated DNA" molecule. I understand that without considerable knowledge in molecular genetics, it may hard to parse through all the terminology in the case. I have never heard anyone refer to any type of DNA as "isolated DNA". I suspect that at some point in the case, a lawyer invented that terminology which is why this is confusing to many people.

I did some quick searching online but could not determine specifically what "isolated DNA" represents. I'm assuming it represents cDNA of the BRCA genes but I'm not entire sure about that. While cDNA itself is naturally occuring, and is commonly used in a many laboratories for various types of genetic analysis, I do not understand why the court would get so hung up on it in this case. Rather, I would have guessed the court would have focused on Myriad's knowledge of the mutations (single nucleotide polymorphisms) that can indicate a higher risk of developing breast cancer. Perhaps Myriad's lawyers thought that by focusing on the cDNA/"isolated DNA" terminology would raise their chances of a victory.

I do not think that Myriad's win in this case is anything to be alarmed at. Their research has had far reaching implications in breast cancer research and they deserve to be rewarded for their work. I believe the main problem with patents and/or cases like this is that the people (patent officers or judges) while highly educated in their respective fields lack knowledge in highly specialized applications like this. A perfect example of a lack of knowledge is when Apple sued Microsoft for copying their windows GUI. At the time of the trial, most people, including the presiding judge, were very unaware of how computers worked. It was easy for MS's lawyer to convince the judge that MS Windows was different enough from Apple OS that it did not infringe. My essential argument here is that we could benefit from specialized courts/patent offices that are aware of what they are actually reviewing.
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Prisoner 201, 30 Jul 2011 @ 12:24am

Re: Re:
Only if you have a valuable, patented gene. For example immunity to some disease or other, or reduced risk of cardiac disease.

Pharma will lose money on medications if you procreate with a partner also carrying these healthy genes, and as such you will have to pay a licencing fee (ransferred to your child when it reaches maturity) as well as a one-time administrative fee in order to legally procreate.

So yeah, licence to fuck.
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Crime, 30 Jul 2011 @ 2:21am

Patents have been obtained for the gene as an isolated DNA molecule, and for methods that rely on the assessment of genetic status to determine medical risk. Genetic testing can be used to identify disease susceptibility, establish diagnostic status, and design personalized therapeutic regimens in medical care. While many gene patents are managed so that wide access is facilitated, access to certain gene portfolios is quite restricted, preventing
the development of a robust genetic testing climate for the relevant clinical conditions; this is most clearly observed for the BRCA1 and BRCA2 genes. This constriction affects patients seeking to make genetically-informed medical decisions, health care providers offering genetic testing options, and scientists performing genetic research. In the absence of explicit facilitated access to critical genes that are under restrictive patent management, the central question of patent eligibility and whether such patents are valid will continue to be litigated. This is a period of renewed attention to the issue of patentable subject
matter in the life sciences.
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Capitalist Lion Tamer (profile), 30 Jul 2011 @ 2:31am

Well, if I'm just going to be walking around with a bodyful of patentable DNA, I'm thinking these companies need to be throwing a bit of endorsement money in my direction. In fact, for the right amount, I'd be willing to quit smoking and work out more often, just to make all of "their" DNA look like it's in top physical condition.
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Liz, 30 Jul 2011 @ 2:31am

Sounds like a perfect Kickstarter project to me. We have what, somewhere around 25,000 genes dedicated to coding specific proteins? Start up a crowd sourced project to patent every one that's been discovered and mark them all as public domain. Plus write the patents broad enough that any related genetic code derived from each sequence of ACTG is covered under each of the base genes.

If corporations can patent and lock up publicly funded (as in tax payer provided for government funds) research and discovery, why not regular folks?
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Nicedoggy, 30 Jul 2011 @ 5:33am

http://patentabsurdity.com/

Maybe people need another movie but about biotech patents.
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person otherwise, 30 Jul 2011 @ 5:44am

Is this symetric?
Is a patented gene then non-infringing when it is incorporated in a complete set of DNA?
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AJ, 30 Jul 2011 @ 5:59am

Two can play that game
Ok so I own some very commercially valuable pigs. You claim to own the patent for one or more genes that occur in my pigs. But you patents cover isolated genes.

I'm sorry but your patents are not infringed by my pigs, as my pigs have no isolated genes. My pig's genes occur only in DNA sequences. Your patents specifically do not cover genes within DNA sequences.

In any game of dirty rules or just plain stupidity, there can always be two players. Hang these fools with their own rope.
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GODROD, 30 Jul 2011 @ 6:18am

The US judicial system is retarded
Ok.

I download a piece of software, I split it in two and save it on two different DVDs/disks. That is not how it naturally appears in "nature"/"society", thus it is unique and patentable... I just created it, it's not piracy! Woot
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trish, 30 Jul 2011 @ 6:30am

are us patents enforceable everywhere?
or just in the us? It seems to me if american companies now think they can own *life* maybe the rest of the world will eventually turn away and hand-signal each other *craaaazyyyy*.
You know, it's a good thing our ancestors from the past 6000-8000 years did not have patent systems. Imagine: Fire, patented. Wheel, patented. Gravity, patented. If each discovery got held back for 20 years, then by my calculations... it would be 1352.
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Kharg (profile), 30 Jul 2011 @ 6:36am

soo ... if the sample of a song, 10 seconds long, which I separated from the rest of the complete song ....

I am confused ...
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Jim D (profile), 30 Jul 2011 @ 8:11am

It's all mine!
Hey folks, I just took a rock out of my garden and isolated it from the ground, so I'm about to register a patent against it. All you fuckers living on earth, touching the ground, get the hell off! It's all mine, bitches, and you're violating it!

Ditto for kids. My kids is currently isolated from the others (only child, currently at home) Patenting him will make all the kids belong to me... and I'm hungry.
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Anonymous Coward, 30 Jul 2011 @ 8:28am

So can I patent the heart since it is only part of the whole?
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Anonymous Coward, 30 Jul 2011 @ 8:34am

For those who may be inclined to look into this issue in greater detail with the benefit of background, technical information that much more comprehensively explains what actually transpires at each step of the way, Patent Docs by Mr. Kevin Noonan is an invaluable resource.

While one is always free to disagreee with Mr. Noonan's views, at least any such disagreement would be based upon a much more comprehensive understanding of what actually transpires when sequences are culled out from their naturally occuring environment.

Perhaps the most useful service rendered thus far by the CAFC is that through the diversity of the judges' opinions, keystone issues are coming into clearer focus devoid of sound-bite rhetoric.
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gorehound (profile), 30 Jul 2011 @ 8:35am

another bullshit ruling by a government that is finally pissing more and more people off.i hope to live long enough to see the demise of both republicans and democrats.this whole system is dysfunctional.
patent on genes !!!! fuck off !!!

i want to start a new political party called THE COFFEE PARTY !!!
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Jerry, 30 Jul 2011 @ 8:38am

Re: Is this symetric?
That would seem to be the courts ruling.

A gene in isolation is patentable. Which would prevent other companies from injecting the isolated gene into their plant/animal/etc..

However if it is present in DNA through natural processes then it is not isolated so the patent doesn't apply.

Which means the gene leakage Monsanto loves to crush farmers on it not covered by their patent and they can go get stuffed.

I wonder if the Judges actually considered the full ramifications of their ruling.
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Anonymous Coward, 30 Jul 2011 @ 8:56am

Good thing no one's thought to patent protons or electrons...
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Anonymous Coward, 30 Jul 2011 @ 8:57am

Re: Re:
Fornication Under Consent of the King. We're now getting back to the original meaning.
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someone (profile), 30 Jul 2011 @ 9:05am

Response to: Anonymous Coward on Jul 29th, 2011 @ 11:37pm
Your DNA was created by your parents, they hold the copyright.

Your parents were able to do so because their work (you) was transformative.
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eric, 30 Jul 2011 @ 9:14am

Re:
Patents are a contract with the government which for the right to prevent somebody using your invention you must fully disclose the technology behind your invention.

The idea that biotech companies are suing farmers for accidental contamination is a lie perpetrated by the anti-GMO crowd. Such lawsuits are not allowed under US law.
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nraddin, 30 Jul 2011 @ 9:17am

does that mean I can patent wood?
I mean I cleaved it from the whole and it doesn't ever exist in nature in plank form so I should be able to patent planks of wood right?
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DannyB (profile), 30 Jul 2011 @ 9:46am

One twin patented his genes
The other twin had to pay royalties for life.
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DannyB (profile), 30 Jul 2011 @ 9:47am

Re: One twin patented his genes
If he refused to pay royalties, then he is a freetard.

Why is he against innovation?

He should be sued by the other twin whose innovative genius is proven by the very fact that he holds a patent.
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Anonymous Coward, 30 Jul 2011 @ 10:07am

Re:
Your whole post is sound-bite rhetoric. Not a single substantive sentence.
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alternatives(), 30 Jul 2011 @ 10:21am

Re:
My DNA was created by me so therefore I can now apply for copyright on my specific DNA. Of course that means that anyone taking a DNA sample from me would be making illegal copies of my DNA and therefore committing copyright infringement unless I license it to them

How about this:

Can one find medical care or health care insurance that does not have a clause which states 'Hey - you give us the right to do with your DNA as we see fit'.

If all policies have such a clause - can one thusly smackdown mandatory healthcare for stepping on your rights?
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alternatives(), 30 Jul 2011 @ 10:36am

Re: Re: Is this symetric?
However if it is present in DNA through natural processes then it is not isolated so the patent doesn't apply.

At the point where the DNA replicates via plant -> seed that becomes a 'natural process' and Monsanto could be SOL.

This whole thing could become lottsa fun.
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DCX2, 30 Jul 2011 @ 10:45am

Re: Re:
David and Dawn Runyon might disagree with you. Unless this CBS is a fraud.

http://www.cbsnews.com/stories/2008/04/26/eveningnews/main4048288.shtml
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Josiah, 30 Jul 2011 @ 11:12am

Re: This article is misleading
> this article misleads further by not explaining
> that it is really a method that is in dispute,
> not an "isolated DNA" molecule.

It's not just a "method." It's also product-by-process claims at issue.

When protection is extended to a widget manufacturing process, often protection is extended to the widgets that come out at the end if the claims in the patent are drafted to do so.

In the United States, patentability of a product-by-process claim extends to the product itself and does not depend on its method of production.

The company was using the threat of their patent to stop others from making breast cancer genetic screening tests and to prevent physicians from using competitors' tests.

No matter what method was used to isolate the gene at issue they claimed that the tests would infringe because one necessary product -- the isolated gene, itself -- was protected under their patent under one or more claims.
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Josiah, 30 Jul 2011 @ 11:12am

Re: This article is misleading
> this article misleads further by not explaining
> that it is really a method that is in dispute,
> not an "isolated DNA" molecule.

It's not just a "method." It's also product-by-process claims at issue.

When protection is extended to a widget manufacturing process, often protection is extended to the widgets that come out at the end if the claims in the patent are drafted to do so.

In the United States, patentability of a product-by-process claim extends to the product itself and does not depend on its method of production.

The company was using the threat of their patent to stop others from making breast cancer genetic screening tests and to prevent physicians from using competitors' tests.

No matter what method was used to isolate the gene at issue they claimed that the tests would infringe because one necessary product -- the isolated gene, itself -- was protected under their patent under one or more claims.
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darryl, 30 Jul 2011 @ 11:33am

Yes, it is as usual misleading.
They are not saying "if you cut off your finger" rubbish Mike, and you should well know that !!! You probably do, but cannot see past your own bias.

The court is exactly correct, think about all the other chemicals that naturally occur in the body, all the hormones, and compounds such as Serotonin, they are naturally occuring, but they have been isolated, identified and synthesised and the technology to isolate, identify and synthesise is what is patented.

Steel is natural as well, so is silicon, are you saying if you can isolate, refine and create from those raw and natural products that you cannot patent it ? because it is natural ???

Next time you type of your keyboard Mike, think about that plastic and what it is made of, its basically carbon !

So how can you patent plastic, or anything made of plastic, because it's made from a common element ? just arrainged in a specific or processes, isolated and INVENTED, and therefore patented.
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Anonymous Coward, 30 Jul 2011 @ 12:27pm

Re: Yes, it is as usual misleading.
"the technology to isolate, identify and synthesise is what is patented."

Did you read the article? Because if you had, you would have discovered that it is in fact the end product (isolated DNA) that is being patented here, not the technology.

"Steel is natural as well"

In what sense? You can't mine it, you have to make it.

As you say, something has to be INVENTED. Not only did Myriad not figure out where in the overall DNA sequence it was, they also did not figure out how to isolate it. So what exactly did they INVENT?
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Anonymous Coward, 30 Jul 2011 @ 12:28pm

Re: This article is misleading
Your entire argument boils down to "THEY DID THE WORK THEY DESERVE TO BE GIVEN MONEY FOR THEIR WORK THEY ARE HARD WORKING PEOPLE UNLIKE THE LEECHES AT PENN".

If this is true, then it's a matter between Penn and Myriad. I don't see why an entire new class of patents needs to be created with far-reaching implications just because two groups of scientists are throwing a hissy fit about which group was being profitable with the genes first. Ideally, if both parties can prove that they discovered the same method independently, then it should be a non-issue. You are right about the terminology of "Isolated Gene". Most patents actually have no real place in being a patent, they are only made that way by having the language around them twisted about to make something that only seems related to innovation, despite if any real innovation ever took place.
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Anonymous Coward, 30 Jul 2011 @ 12:31pm

Re: Yes, it is as usual misleading.
"isolate, identify and synthesise is what is patented."

So by your own words, are you saying that they have patented Chemistry?

Or is it only okay to patent Chemistry when it involves processes that are too complex for the courts to understand?
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abc gum, 30 Jul 2011 @ 2:11pm

Re: Re:
"The idea that biotech companies are suing farmers for accidental contamination is a lie perpetrated by the anti-GMO crowd. Such lawsuits are not allowed under US law."

The link provided by DCX2 says otherwise.
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abc gum, 30 Jul 2011 @ 2:16pm

Re: Re:
Sounds unconscionable to me.
http://legal-dictionary.thefreedictionary.com/unconscionable
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Anonymous Coward, 30 Jul 2011 @ 2:32pm

Re: Re: Yes, it is as usual misleading.
I can download several genomes off the Internet. Now, with this ruling, I can simply select sections of what I download and request patents. That's not innovation.
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Anonymous Coward, 30 Jul 2011 @ 2:34pm

Re: Re: Re: Yes, it is as usual misleading.
and if you don't believe me, just Google the words 'Download Genome' (without the quotes).
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Anonymous Coward, 30 Jul 2011 @ 2:43pm

Re: Re: Yes, it is as usual misleading.
Gene isolation techniques have been around for a while and were perfectly able to emerge without patents. If anything, these are patents on prior art.
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Anonymous Coward, 30 Jul 2011 @ 2:46pm

Re: Re: Re: Yes, it is as usual misleading.
(and many of these techniques were developed without patents).
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Anonymous Coward, 30 Jul 2011 @ 2:52pm

Re: Re:
http://www.centerforfoodsafety.org/pubs/CFSMOnsantovsFarmerReport1.13.05.pdf

http://www.techdirt. com/articles/20091214/0856327337.shtml

http://www.knowthelies.com/?q=node/5529
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Anonymous Coward, 30 Jul 2011 @ 2:59pm

Re: Re:
Also see

http://en.wikipedia.org/wiki/Monsanto
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Anonymous Coward, 30 Jul 2011 @ 3:51pm

There is a very simple solution to this type of nonsense.

Get a sample of the judges DNA.

Determine genes in DNA sample.

Patten a goodly number of these genes.

File suit against the judge for using patented genes with out a license.

Eureka! Profit or overturnment of gene pattens.
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Anonymous Coward, 30 Jul 2011 @ 3:56pm

Re:
Forgot!

Do not forget to sue by using a troll firm located in Marshall TX where the paten holder always wins.
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darryl, 30 Jul 2011 @ 6:04pm

Re: Re: Re: Yes, it is as usual misleading.
switching electricity techniques have been around for a while and were perfectly able to emergy without patents.

Therefore, 'if anything' the computer is 'prior art' !!!..

/sarc
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darryl, 30 Jul 2011 @ 6:12pm

Re: Re: Yes, it is as usual misleading.
yes, just like when the person invented the battery, they patented chemestry.

Or when someone developed DDT, or a vaccine, or a chemical, or petrol, or cooking for that matter.

You do not patent 'solid state technology' nor do you patent "chemistry' or 'science' or electronics, you patent A METHOD of doing something.

When you patent a new type of air plane, you do not patent the raw material you use, metal and plastic or whatever.

You patent how you assembled those common components to create something new and innovative and able to be patented.

How simplistic are you people !!!!!

Do you honestly have trouble grasping that simple, fundamental concept ??? REALLY ????

It is very sad to see... I guess that is what you get from being re-programmed by masnick, and not having to ever think for yourself again...
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Anonymous Coward, 30 Jul 2011 @ 7:03pm

Re: Re: Re: Re: Yes, it is as usual misleading.
What?
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Anonymous Coward, 30 Jul 2011 @ 7:04pm

Re: Re: Re: Re: Yes, it is as usual misleading.
Are you saying that computers should be patented?
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Anonymous Coward, 30 Jul 2011 @ 7:06pm

Re: Re: Re:
uhm... it's still getting past moderation, but it's taking too long, so I'll try again.

http://www.centerforfoodsafety.org/pubs/CFSMOnsantovsFarmerReport1.13.05.pdf

http://www .knowthelies.com/?q=node/5529

http://www.techdirt.com/articles/20091214/0856327337.shtml

Hopef ully this goes through.
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Anonymous Coward, 30 Jul 2011 @ 7:09pm

Re: Re: Re: Yes, it is as usual misleading.
The problem is that these are simple patents on fundamental ideas that do not need patents to originate. People can isolate genes without patents and have been able to perfectly fine without them. Patents only get in the way of the process. We don't need patents on methods of isolating genes to be able to isolate genes.
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Anonymous Coward, 30 Jul 2011 @ 7:11pm

Re: Re: Re: Re: Yes, it is as usual misleading.
These trolls are getting patents on gene isolation techniques that were already around before the patents, no thanks to the patent holders.
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whatisdisplayname (profile), 30 Jul 2011 @ 7:17pm

gene "patenting"
A natural gene, whether part of DNA or isolated, occurs in nature as surely as any cell in a persons body. Cells are part of tissues and organs, and can be isolated, too. You can patent only an invention, something you created and didn't occur in nature previously. You can patent the PROCESS of isolating a gene. That is a creation, not previously occurring in nature. The same is true of a diagnostic test. A new man-made gene could be patented. But, you can't patent a discovery. You can't patent natural genes or natural DNA.
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Anonymous Coward, 30 Jul 2011 @ 7:27pm

Design Versus Instance
This is ridiculous. The normal sense of what a patent is, an innovative design, has been completely lost. There is no element of design in play here at all.

In fact, this is the complete opposite of design. It is purely about implementation of process. That is, the fact that something has been isolated is what has been patented.
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Anonymous Coward, 30 Jul 2011 @ 7:39pm

Re: Re: Re: Re: Re: Yes, it is as usual misleading.
(the problem with arguing with Daryl is that it's difficult to understand what he's even trying to say, his textual communication capabilities are so poor that even the trolls on his side get confused).
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Anonymous Coward, 30 Jul 2011 @ 9:26pm

Re: Yes, it is as usual misleading.
No.

"Myriad did not invent a new method of nucleotide sequencing. Instead, it applied known sequencing techniques to identify the nucleotide order of the BRCA genes."

If you want to make an analogy, this is like patenting water because you were the first to determine that its chemical formula is H2O.

Or to use an astronomy analogy, instead of patenting a telescope, these guys are trying to patent Neptune.
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The eejit (profile), 31 Jul 2011 @ 1:16am

Re: Re: Re: Yes, it is as usual misleading.
Here's the thing: YOU, yes, YOU are the prior art here.
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chris, 31 Jul 2011 @ 8:25am

Re: DNA, with Logic
I think too many judges fall victim to the "appeal to consequences" fallacy. They have in the back of their heads that ruling against a company might hurt the economy, so instead of simplify considering a question of law, they are considering it while having a bias in favor of helping a company make money.

You can see it in many judicial opinions, a judge states that if he were to rule this way, this undesirable thing may happen. But what is desirable is the exclusive prerogative of a legislature.
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Vic Kley, 31 Jul 2011 @ 8:28am

Rush to Misjudgment
This decision requires careful review not the masnick rush to misjudgment. Who has the time? Perhaps we should wait for the next review by the Appeals court.
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Vic Kley, 31 Jul 2011 @ 8:37am

Re: fingers and hand
So you will become the head of the Stank of America, where all deposits are made not earned.

You will give a whole new meaning to the smell of success!

I think you may well end up a spokesman for the Tea Party, for its your kind of thinking taken to an extreme that has these bozos playing with themselves instead of minding the business of the people.
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Anonymous Coward, 31 Jul 2011 @ 9:28am

Re: Re: Re: Re: Yes, it is as usual misleading.
darryl is a disgrace to chemical law. How can chemical law produce such incompetence?
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abc gum, 31 Jul 2011 @ 9:37am

Re: Re:
"Your whole post is sound-bite rhetoric. Not a single substantive sentence."

I believe he is insinuating that some or all posts here are from uninformed people and that if they wish to debate the issue then they should educate themselves.

Sounds like an Appeal to Authority fallacy.
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abc gum, 31 Jul 2011 @ 9:42am

Re: Rush to Misjudgment
"This decision requires careful review not the masnick rush to misjudgment. Who has the time? Perhaps we should wait for the next review by the Appeals court."

Yeah - that's right.
Nothing to see here - move along.
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Ralphoo (profile), 31 Jul 2011 @ 11:42am

Cutting it off for patent purposes
See, when Lorena Bobbit clipped off her husband's dingaling, if she had rushed out and patented the thing (just throw it in a padded envelope for a quick provisional!), they would probably be back together now, living off the proceeds, the hell with sex, now we have moneeeeyyyyy!
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Ralphoo (profile), 31 Jul 2011 @ 11:44am

Re: Re: DNA, with Logic
Right, kind of like jury nullification. Plus the judge gets a new car or something, and how can you say no when there are so many great reasons to say YES!!
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Ralphoo (profile), 31 Jul 2011 @ 1:50pm

Re: Judge's DNA
I do believe you're onto something.

The life of humans is filled with these unfathomable absurdities. Maybe we should let some other primate, or dolphins or whales, take a shot at running the world. (Full disclosure: I own the patent rights to certain dolphin genomes. So far I have not moved to assert my rights over their existence, but someday they will have no choice but to make me their king, or face bankruptcy. Their assets can be seized by the court. A major precedent was set in Ralphoo v Whale, 2007. If that deadbeat cetacean hadn't moved its funds into undersea havens, I would already be living on the proceeds.)
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Ralphoo (profile), 31 Jul 2011 @ 1:56pm

Re: Two can play that game
You ignore one key fact: they have plenty of money for bribes. Logic is not part of this equation. Not at all.
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Ralphoo (profile), 31 Jul 2011 @ 2:08pm

Patenting Neptune
And what a good idea that is! I have personally done the same with Saturn. Act now, and a license to view my patent-protected planet through a home-based telescope will cost you only pennies a day. Professional astronomers, you may be surprised how easy it is to obtain a multi-year, large-telescope license for yourself and your staff.
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Sajjon, 31 Jul 2011 @ 9:05pm

Ludicrious (and not the rapper)
I have DNA Focker, can you patent me?
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Just John (profile), 31 Jul 2011 @ 9:36pm

Re:
I was just thinking the same thing.

I can image a blond in the future being sued because "We have the patent for blond hair, and you used the gene without properly licensing it".....

Guess blond jokes will get a bit more....interesting?
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Anonymous Coward, 31 Jul 2011 @ 9:58pm

Re: Re: Re:
No, just a suggestion that becasue this case involves an esoteric technical field, it helps to read the views of persons who are intimately familiar with both the technical field and the law.

I know the law like the back of my hand, but I do not have any meaningful degree of familiarity with the technical field.
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chris, 31 Jul 2011 @ 11:19pm

Re:
In order for it to be infringement, you need to be selling a product based on the patent or using it in some other commercial way. So while patented genes are bad, it's not as bad as you might think. Maybe if you were a pimp dealing in genetically enhanced...um...
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Mike Masnick (profile), 1 Aug 2011 @ 4:38am

Re: This article is misleading
This article is misleading because it does not mention the background leading up to the initial suit by Myriad

No. You claim it's misleading because it doesn't bring up issues totally irrelevant to the suit that you wish to bring up.

As I understand it, Myriad sued scientists at the University of Pennsylvania for using a method that Myriad developed and patented.

Yes. But the question is whether or not it should be patentable. If, as argued, it is not patentable, then it doesn't matter that someone else used it.

I would be willing to bet that Myriad spent a considerable amount of money developing the method for detecting mutations in the BRCA1/2 genes that predispose women to breast cancer.

Meaningless. If it's not patentable, it doesn't make an ounce of difference how much time or money was spent developing. It's misleading to suggest otherwise. Patents are not for how much money were spent developing something. If that was the case, whoever spent more would get the patent. But I see no indication of that in the rules anywhere.

Therefore, it is understandable that they would like to profit of their investment.

Fallacy 1: that they would like to profit from something means they deserve a patent. I mean, seriously, that makes no sense. I'd like to profit from my work, so I automatically deserve a patent? That's ridiculous. And wrong.

Fallacy 2: The only way to profit from something is to have a patent on it? Also false.

Seriously. For you to argue my article is misleading and then spew this kind of crap...

The scientists at the Penn infringed on Myriad's patent's by using a their method and profiting off it without paying Myriad royalties.

Again, the WHOLE POINT of the lawsuit is to determine whether or not the stuff is patentable. If it's not patentable, your statements are meaningless.

None of what you're stating matters to the issue at hand: are the genes patentable.

With that background in mind, this article misleads further by not explaining that it is really a method that is in dispute, not an "isolated DNA" molecule. I understand that without considerable knowledge in molecular genetics, it may hard to parse through all the terminology in the case. I have never heard anyone refer to any type of DNA as "isolated DNA". I suspect that at some point in the case, a lawyer invented that terminology which is why this is confusing to many people.

This is a misleading bit of bullshit by people who wish to support patenting genes. They pretend that the method is separate from the gene. It is not.

I do not think that Myriad's win in this case is anything to be alarmed at. Their research has had far reaching implications in breast cancer research and they deserve to be rewarded for their work

Again, there are lots of ways to be rewarded that do not involve a patent and patents are not given just because research has implications. Honestly, can you be any more misleading in your own statements? Do you even know how the patent system works?

I believe the main problem with patents and/or cases like this is that the people (patent officers or judges) while highly educated in their respective fields lack knowledge in highly specialized applications like this.

And you appear to know nothing of the patent system. So please do not mock others for not knowing stuff.

A perfect example of a lack of knowledge is when Apple sued Microsoft for copying their windows GUI. At the time of the trial, most people, including the presiding judge, were very unaware of how computers worked. It was easy for MS's lawyer to convince the judge that MS Windows was different enough from Apple OS that it did not infringe. My essential argument here is that we could benefit from specialized courts/patent offices that are aware of what they are actually reviewing.

Your knowledge of the OS lawsuit is also lacking, but that's a tangent.

Separately, we have a specialized patent court (the one that made this ruling) and all its shown is that it's biased towards more patents all the time. It's been a disaster for innovation.
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Pickle Monger (profile), 1 Aug 2011 @ 6:59am

Separate?
The genes are separate from DNA only in he same sense as this ruling is separate from the law.
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MondoGordo, 1 Aug 2011 @ 7:38am

Does this ruling mean I can patent a steak ?
Since it's not the whole cow .... and it does not exist in nature (separate from the cow) and no one has a patent on it already? Just imagine the financial windfall from the patent infringement lawsuits ...!!
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staff, 1 Aug 2011 @ 7:47am

torturing
"To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries"

Does the invention "promote the Progress of Science" and is it "useful"? If so, stop torturing yourself and the rest of us and give us some peace.
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Anonymous Coward, 1 Aug 2011 @ 8:04am

Aw crap, now I can be sued because I infringe on their blue eyes patent.
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6, 1 Aug 2011 @ 11:08am

Re: Re: This article is misleading
Mike just FYI the case had a lot of claims at issue in Myriad.

1. There were claims to isolated DNA as such.

2. There were claims to methods of detecting mutations in certain DNA.

3. There were claims to screening methods.

The court found:

1. is patentable
2. is not patentable and
3. is patentable
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Mike Masnick (profile), 1 Aug 2011 @ 11:34am

Re: Re: Re: This article is misleading
Mike just FYI the case had a lot of claims at issue in Myriad.

Fully aware of that. I read the entire decision, which I also posted above. I focused only on (1) because that's the part I found to be key.

Did I imply otherwise?
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6, 1 Aug 2011 @ 1:06pm

Re: Re: Re: Re: This article is misleading
Idk I didn't bother to reread your OP today. I just read some comments today.

In any event it's a patent protectionist court doing what patent protectionist courts do. Literally you will notice that at least one judge was on board in part for keeping genes patentable literally to protect the patents the office has been issuing. So don't be too let down with the court having ruled this way, be let down that there even is such a court.
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Anonymous Coward, 1 Aug 2011 @ 1:36pm

Re: torturing
You skipped over the most important question: "is it an invention?"

No.

Now please crawl back to your sites (no spamming this time?) and update them so that they don't look like they're from 1990.
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patent litigation, 1 Aug 2011 @ 7:58pm

ridiculous
I agree that the CAFC's ruling was ridiculous (though expected). For both legal and policy reasons, I don't think the Myriad patents should stand. I'm waiting for the Supreme Court to weigh in; hopefully it will issue a rational opinion. I wouldn't place too much hope in the Prometheus outcome, though; ludicrous though I think those patents are, they've received quite a bit of support, and they've also been credibly distinguished from those at stake in Myriad.
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fetish movies, 4 Nov 2011 @ 3:06am

Still doesn't answer the question. You can patent only an invention, something you created and didn't occur in nature previously. You can patent the PROCESS of isolating a gene.
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Sheogorath, 12 Apr 2012 @ 1:53pm

Sue my Family!
So if I married a woman and we had children together, could we be sued for making unlicensed copies of these genes? Could our sons and daughters be sued for possessing those unlicensed copies? Where will this madness end if companies are allowed to patent the genes of the parotid glands, for example? Can you imagine getting sued for salivating?
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Anonymous Coward, 22 Jun 2012 @ 7:24pm

Re: Re:
So it's legal to distribute Hollywood movies under copyright so long as no one pays me?

I never knew that...
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Anonymous Coward, 22 Jun 2012 @ 7:54pm

Re: are us patents enforceable everywhere?
Language patented. The human race would never have gotten started.

Our major innovation is culture which relies entirely on being shared.
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Anonymous Coward, 22 Jun 2012 @ 8:00pm

Re: Re: Re: Re:
The reason this is BS is because people well versed in law and people well versed in the technical process of DNA extraction and isolation tend to argue along the same good sense lines that anyone with folk understanding argues with.

There are some things that folk understanding simply does not work for. This is not one of them.

Both my law lecturer and my biological anthropology lecturer whose own research was entirely in this field believed that patenting genetic material is outrageous for the same good sense reasons you see here on this page.

The big clue here is that there was one hegemonic view and that was that this kind of thing could not and should not be patented. All the movement in the other direction relies on trying to bamboozle people into thinking otherwise by telling them it's over their head but for people whose head is not over, it's really only people with something to gain who have broken away from the mainstream and good sense thinking.

This is the hallmark indicator that an issue is not above good sense and that people who are suggesting otherwise are simply employing sophistry and spin.
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Anonymous Coward, 22 Jun 2012 @ 8:03pm

Re: Yes, it is as usual misleading.
Ok, so we cannot patent our finger unless we also patent the means by which we identified and extracted it from the whole.

I think we can do that.
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Anonymous Coward, 22 Jun 2012 @ 8:08pm

Re: Re: Re: Yes, it is as usual misleading.
Did you realize that without cooking human evolution would have been impossible? Cooking significantly reduces the costs of consuming and absorbing nutrician and calories from our food. Cooking food allows us to have a relatively compact and low cost gut yet still have a huge and costly brain.

Good thing no one patented it way back in the day, although some troll finally got around to patenting the process of toasting bread this century.
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Justin, 30 Nov 2012 @ 1:55am

Nothing else left
SO guys is there anything left that cannot be patented.

Hey this is my DNA u cannot have it this is my property..lol
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Anonymous Coward, 19 Nov 2014 @ 11:51pm

Okay, now I'm confused
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