Australian Court Says Genes Are Patentable
from the sweat-of-the-brow? dept
While the US Supreme Court will soon be weighing in on whether or not genes are patentable in the Myriad Genetics case, we've also been following a similar case in Australia. There, a bunch of cancer patients took Myriad to court, arguing that the patent on BRCA1 is invalid (this same gene is part of the US case). Unfortunately, the court has decided that genes are, in fact, patentable if they've been isolated. This is always the key point of contention with gene patent supporters. They claim that it's the fact that they can separate the gene that makes their work patentable. In some ways this is an odd sort of "sweat of the brow" argument for patents -- and here, the judge is buying the argument completely. He says that patenting genes in the human body would be a problem... but isolating them magically makes it a different story.There is no doubt that naturally occurring DNA and RNA as they exist inside the cells of the human body cannot be the subject of a valid patent. However, the disputed claims do not cover naturally occurring DNA and RNA as they exist inside such cells. The disputed claims extend only to naturally occurring DNA and RNA which have been extracted from cells obtained from the human body and purged of other biological materials with which they were associated.This still seems ridiculous to me. If others figure out how to get an isolated gene as well, why should that be subject to a patent? Hopefully this is not a preview of the US Supreme Court's upcoming ruling.
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: australia, brca1, breast cancer, cancer, genes, patents
Companies: myriad, myriad genetics
Reader Comments
Subscribe: RSS
View by: Time | Thread
[ link to this | view in chronology ]
Re:
Does patenting a gene prevent anyone else from sequencing the organism?
Does patenting a gene prevent anyone else from isolating genes from the organism?
Most proteins are coded for with multiple genes; does patenting an individual gene block anyone else from sequencing those proteins?
[ link to this | view in chronology ]
Re: Re:
The way it is explained, makes for far more questions than it answers and when you are setting standards for future rulings, that is a very low value solution...
[ link to this | view in chronology ]
Oh the Huge Manate!
So I can refine something, extract out the important bits and that warrants some kind of monopoly?
How about you give me a monopoly on GOLD Australia.
[ link to this | view in chronology ]
[ link to this | view in chronology ]
Re:
FTFY.
[ link to this | view in chronology ]
Re: cour decision
[ 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:
[ link to this | view in chronology ]
[ link to this | view in chronology ]
[ link to this | view in chronology ]
Re:
[ link to this | view in chronology ]
Seconded
[ link to this | view in chronology ]
[ link to this | view in chronology ]
[ link to this | view in chronology ]
How much longer until we get our nifty serial number tats which are required for buying or selling.
[ link to this | view in chronology ]
They're built out of my own property! So they should have no rights, except the right to earn me lots of money through hard labor!
[ link to this | view in chronology ]
For example, look at East Texas, how many companies have empty offices there just to use it for litigation? By giving corporations what they want they hope to keep them within their borders and providing them prestige/taxes/jobs and whatnot.
[ link to this | view in chronology ]
Silly Me
[ link to this | view in chronology ]
It is fucking insulting for them to think they can patent the very materials we're made up of.
I mean look at it this way you're a scientist and you decide to isolate some genes but you're told you will be sued for messing with you own genes.
I would support putting them all in a survival cage and making them duel to the death with wiffle bat.
[ link to this | view in chronology ]
A discovery is not an invention but people allow it to be patented?
[ link to this | view in chronology ]
[ link to this | view in chronology ]
[ link to this | view in chronology ]
Re:
It's 2013. Cancer treatment (and potential treatment for other life threatening diseases affected by a ruling like this) should not entail the human wreckage it currently does. It should not be acceptable on any level.
Grotesque and despicable.
[ link to this | view in chronology ]
Of course genes should be patentable
[ link to this | view in chronology ]
Re: Of course genes should be patentable
It seems that no one actually has read the actual case and the conclusion and what the whole thing was for and NOT for
[at 136]" There is no doubt that naturally occurring DNA and RNA as they exist inside the cells of the human body cannot be the subject of a valid patent. However, the disputed claims do not cover naturally occurring DNA and RNA as they exist inside such cells. The disputed claims extend only to naturally occurring DNA and RNA which have been extracted from cells obtained from the human body and purged of other biological materials with which they were associated. [emphasis added]"
And as Justice Nichols states "[He] must apply the law as explained in NRDC" [at 135]
This was a strange case since the actual Applicant(s) has ceased to exist now and was basically formed for the sole purpose of taking this case to Court. Personally based on the evidence presented and what the whole case was about there was no other conclusion that could of been reached though this doesn't mean that Human genes can be patented just that DNA/RNA that was first found in the Human body and then manipulated and transformed into something different can be.
ie: Creative transformation based on sweat of the brow and therefore absolutely patentable. legally correct, I will leave it up to others if it is ethically correct.
[ link to this | view in chronology ]
Re: Re: Of course genes should be patentable
"The disputed claims extend only to naturally occurring DNA and RNA which have been extracted from cells obtained from the human body and purged of other biological materials with which they were associated."
what you're left with is DNA and RNA that came from the human body. Isolate, purified even, only the good parts, but how is that not patenting something that exists inside the human body? Is it being transformed into something new? Because otherwise it seems like the genetic equivalent of patenting boneless skinless chicken breasts or something. That can't really be the state of the law?
[ link to this | view in chronology ]
Re: Re: Re: Of course genes should be patentable
[ link to this | view in chronology ]
Re: Re: Of course genes should be patentable
It's not being transformed into anything else. It is still human DNA from a human body.
Most people here are pretty familiar with the basics of this and similar suits, and have very good reasons for not wanting this sort of IP. You put people who do any sort of gene therapy at risk of lawsuit for no good reason, no matter what method they use, because the gene they are working on is patented.
This is absurd on its face.
[ link to this | view in chronology ]
[ link to this | view in chronology ]
Mother Nature is Pissed
[ link to this | view in chronology ]
[ link to this | view in chronology ]
Re:
[ link to this | view in chronology ]
Free information for all!!
Privacy for none!!
Make everything public!!
WE have earned it, after all.
In the meantime, I hope you don't mind if I help myself to your bank account. It's just information, after all.
In all seriousness: This is an issue that is far from settled. The debate over the patenting of genes is the first darkening cloud on the horizon. Anyone who thinks that the issue of ownership over information has a clear "right" or "wrong" side, is scarcely worthy of consideration.
[ link to this | view in chronology ]
Hu-Whah?
Knowledge about genes in general is simply knowledge about something naturally occurring. You can't patent a rock, and you can't patent a gene. At least, not and remain honest.
Privacy is more like, you can't steal and look at MY genes, which indeed has an application if we are moving to an insurance based medical system where risk determines whether or not you get treatment.
[ link to this | view in chronology ]
[ link to this | view in chronology ]
[ link to this | view in chronology ]
News of Death of Judith Keep in june 2004, 9th Us District, 4th Ca. District judge
[ link to this | view in chronology ]
[ link to this | view in chronology ]
This is great!
[ link to this | view in chronology ]
Nice
[ link to this | view in chronology ]
Insane
[ link to this | view in chronology ]
I like it
[ link to this | view in chronology ]
Insane
[ link to this | view in chronology ]
Nice Article
[ link to this | view in chronology ]
Education
[ link to this | view in chronology ]
Good Article
[ link to this | view in chronology ]
Re: Good Article
[ link to this | view in chronology ]
whatsapp for pc
[ link to this | view in chronology ]
[ link to this | view in chronology ]
nice post
[ link to this | view in chronology ]
Genes Are a...
They're built out of my own property! So they should have no rights, except the right to earn me lots of hard cash through hard labor!
[ link to this | view in chronology ]
happy wheels demo
[ link to this | view in chronology ]
About Subway Surfers
[ link to this | view in chronology ]
[ link to this | view in chronology ]
Court decision
[ link to this | view in chronology ]
[ link to this | view in chronology ]
Turntables
1. By making a gene patent-able, companies can defend their investments and thereby will invest more in development.
2. Not everybody can work on that gene, and therefore some research will not be done.
I'm afraid this balance lies more on the second point.
[ link to this | view in chronology ]
Thanks for sharing this with us.
[ link to this | view in chronology ]
Thanks,
[ link to this | view in chronology ]
Australian judge
[ link to this | view in chronology ]
Great
[ link to this | view in chronology ]