Appeals Court Doubles Down: Genes Still Patentable
from the you-don't-own-your-genes dept
Well this is unfortunate, but not too surprising. After the Supreme Court rejected medical diagnostic patents in the Mayo case, it vacated the ruling by the Federal Circuit appeals court (CAFC) on gene patents in the Myriad Genetics case, where CAFC had said genes are patentable, and asked it to redo the case in light of the Mayo decision. The ruling came out today, and CAFC more or less repeated what it said in the original ruling. The same panel of three judges effectively argued that Mayo had no real impact on what it said last year, and it was sticking by its decision. The Patently-O link above has a bit more detail, or you can read the full 106 pages (pdf and embedded below), which includes all three panelists entering their opinions (one dissenting). If you read last years, you'll find this one pretty similar, with just a few nods to why they were redoing the process.All that really matters at this point is that isolated genes are still considered patentable. Even though people like James Watson, who was as part of the team that discovered DNA's structure, have argued that this kind of ruling is pure lunacy, the court is sticking by its position.
The case is likely far from over and there's a decent chance that it, too, will end up in front of the Supreme Court, where they'll have yet another chance to smack CAFC around for being overly infatuated with letting everything in the world be patentable. First up, though, will likely be an attempt to rehear the case "en banc" (with the full slate of CAFC judges, rather than just the three-judge panel). In other words, this is far from over, but if you're in the camp of folks who think the idea of patenting your genes is insanity, well, we're still living in an insane world.
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.
Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.
While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.
–The Techdirt Team
Filed Under: cafc, dna, gene patents, genes, patents, supreme court
Companies: myriad genetics
Reader Comments
Subscribe: RSS
View by: Time | Thread
How the USPTO works
[ link to this | view in chronology ]
Re: How the USPTO works
[ link to this | view in chronology ]
Re: Re: How the USPTO works
[ link to this | view in chronology ]
Re: How the USPTO works
[ link to this | view in chronology ]
Re: Re: How the USPTO works
Loads of moneyyy!
[ link to this | view in chronology ]
Re: How the USPTO works
[ link to this | view in chronology ]
[ link to this | view in chronology ]
Re:
[ link to this | view in chronology ]
Re:
[ link to this | view in chronology ]
Re: They are not your genes
But seriously, does this mean that if Bain buys a company that holds a patent for the gene that gave me blue eyes, they can sue me and my children for patent infringement?
[ link to this | view in chronology ]
[ link to this | view in chronology ]
Re:
[ link to this | view in chronology ]
[ link to this | view in chronology ]
Re:
Oh, no, then I'll have to pay you a royalty every morning.
[ link to this | view in chronology ]
Re:
[ link to this | view in chronology ]
This is lunacy...
[ link to this | view in chronology ]
Re: This is lunacy...
'' Good meaning optimized for cost and effectiveness
[ link to this | view in chronology ]
I would hope to God that companies wouldn't be stupid enough to do this incase this scenario were to happen, but I've seen over and over again, companies would in fact try to sue someone who just *dared* to be born with a gene that was patented.
[ link to this | view in chronology ]
Re:
[ link to this | view in chronology ]
Re: Re:
If a genetic patent includes all proteins with the same properties: to *beep* with software patents, you should be a genetics-patent troll, since one patent covers such an extreme amount of sequences...
[ link to this | view in chronology ]
Argh!
[ link to this | view in chronology ]
What purpose does the CAFC actually serve?
[ link to this | view in chronology ]
"The dissent indicates that “elemental lithium (like other elements) would not be patentable subject matter, even if it could only be extracted from nature through an isolation process.” But the isolation here is not a simple separation from extraneous materials, but conversion to a different molecular entity."
The court doesn't think extracting lithium from a lithium compound converts it to a "different molecular entity"? They think it's just a matter of a "simple seperation from extraneous materials?" Excuse me, but did they never TAKE chemistry? Do they think they can extract the lithium by just putting it through a flour sifter? At their next session, instead of a bottle of water, perhaps they should be provided with a bottle of hydrogen and a bottle of oxygen. Same thing, right?
"The dissent finally attempts to analogize the creation of the isolated DNAs in this case to the removal of a kidney from the human body, indicating that the latter does not create patent-eligible subject matter, hence the claimed isolated DNAs also do not. Such an analogy is misplaced. Extracting a kidney from a body does not result in a patent-eligible composition, as an isolated gene has been and should be. A kidney is an organ, not a well defined composition of matter"
A kidney is not a well defined composition of matter? I'm confused. Is the court suggesting that a kidney is not well defined, or that a kidney is not a composition of matter? Let's face it, if someone invented a kidney and it didn't exist in nature, it would be patentable.
[ link to this | view in chronology ]
Re:
Let there be Light, and all that.
[ link to this | view in chronology ]
Prior use
[ link to this | view in chronology ]
Does this mean
[ link to this | view in chronology ]
is this a start of in-breeding?
Not to mention millions, if not billions, of petitions to have their genes patented from each and every family who wish to patent their genes all over the world.
Good luck you numbskulls on filling them....
[ link to this | view in chronology ]
Designer Genes
[ link to this | view in chronology ]
more dissembling by Masnick
Nonsense. The Constitution says “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”. Therefore, if an invention is useful and promotes science, it should be patentable. It’s that simple.
Further, now more than ever small entities need strong property rights including the ability to exclude others from using our inventions without permission. Without them we cannot get funded and commercialize. Without strong property rights China and other low wage foreign nations will keep steam rolling us. Considering we create the lions share of new jobs here at home, America cannot afford to undermine us.
Please see http://truereform.piausa.org/default.html for a knowledgeable analysis of patent issues from those who actually know something about them. All Masnick knows about patents is he doesn't have any.
[ link to this | view in chronology ]
The Last Word
“