Australian Court Says Genes Are Patentable

from the sweat-of-the-brow? dept

Fri, Feb 15th 2013 10:38am — Mike Masnick

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.

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Filed Under: australia, brca1, breast cancer, cancer, genes, patents
Companies: myriad, myriad genetics

64 Comments

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Arsik Vek (profile), 15 Feb 2013 @ 10:35am

So, if it's only patentable because it's isolated, does that mean adding some inert junk base sequences to it means I'm not infringing the patent?
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VMax, 15 Feb 2013 @ 10:43am

Immediately after this ruling, the judge's brain was removed from his body, purged of other biological materials and patented as well.
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Anonymous Coward, 15 Feb 2013 @ 10:45am

Re:
Other good questions:

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?
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Anonymous Coward, 15 Feb 2013 @ 10:51am

How long until corporations declare certain humans infringe on their patents - by existing?
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Mark, 15 Feb 2013 @ 10:55am

Re:
Probably not the type of licenses that people are referring to when suggesting some people should have to get one before needing to produce offspring.
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Arsik Vek (profile), 15 Feb 2013 @ 11:00am

So, if I find a rock in a hole, that's not patentable. But if I dig it up, put it in a box, and call it a Pet Rock, patents away!
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crade (profile), 15 Feb 2013 @ 11:02am

Bought and paid for.
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Anonymous Coward, 15 Feb 2013 @ 11:02am

Did the judge not know the difference between discovery and invention. The gen exists in nature, but the means of isolating it is a human invention, something that did not previously exist. In this case a means of isolating the gene may be patentable, but not the gene itself should not be.
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Anonymous Coward, 15 Feb 2013 @ 11:04am

Alert: By the time I post this, that sweat on the brow is already patented.
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radarmonkey (profile), 15 Feb 2013 @ 11:09am

So can I get my own, new patent on this gene if I sequence it "on the internet"?
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jack, 15 Feb 2013 @ 11:21am

Re:
Its like this, if you unpeel a bananna, you get the patent on the stuff inside. ideally, you would only be able to patent the unwrapping process. If you had something that did something (Created a new gene), then thats different. but patenting something that existed because you 'indentified' is wrong.
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Anonymous Coward, 15 Feb 2013 @ 11:30am

The Human Body - Sponsored by PharmaCorp

How much longer until we get our nifty serial number tats which are required for buying or selling.
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Anonymous Coward, 15 Feb 2013 @ 11:36am

So if I can patent genes and DNA does that make slavery legal in Australia as long as my slaves are made out of my own patented DNA?

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!
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Anonymous Coward, 15 Feb 2013 @ 11:42am

I've wondered if they use these rulings to entice research facilites to set up shop in hopes to create a tech hub.
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.
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Bengie, 15 Feb 2013 @ 12:24pm

Silly Me
And here I thought a patent applied to a process, not an end result.
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Anonymous Coward, 15 Feb 2013 @ 12:48pm

I wonder how long it will take them to patent the whole body..
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.
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Anonymous Coward, 15 Feb 2013 @ 1:09pm

Why people keep saying that patents protect inventions?
A discovery is not an invention but people allow it to be patented?
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Divide by Zero (profile), 15 Feb 2013 @ 1:29pm

Re:
Immediately before this ruling, the judge's brain was removed from his body, purged of other biological materials and patented as well.

FTFY.
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Divide by Zero (profile), 15 Feb 2013 @ 1:34pm

Ok seriously, Australian govt/judges etc, what the fuck is wrong with you. This better get overturned and the judge disqualified from the human race for being a total drop kick. And keep your sticky fingers off my genes, thank you very much. Anyone else getting an icky, slightly violated feeling from these types of shenanigans?
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Divide by Zero (profile), 15 Feb 2013 @ 1:34pm

Ok seriously, Australian govt/judges etc, what the fuck is wrong with you. This better get overturned and the judge disqualified from the human race for being a total drop kick. And keep your sticky fingers off my genes, thank you very much. Anyone else getting an icky, slightly violated feeling from these types of shenanigans?
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DannyB (profile), 15 Feb 2013 @ 1:36pm

Of course genes should be patentable
If you spent a lot of time inventing a new human gene, then shouldn't you be able to get a patent for your creative invention?
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DCX2, 15 Feb 2013 @ 1:37pm

Re:
Exactly what I was thinking. I can imagine a patent for the process by which the gene is purified - so long as it's non-obvious to those skilled in the art of genetics. But a patent on a naturally occurring sequence of information? Total BS.
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doewnskitty, 15 Feb 2013 @ 2:08pm

You can patent the technology that manipulates nature in some way, whether it be a technique particular to genetic modification or a new kind of chainsaw, but I don't think you can really put a patent on what is essentially nature.
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Anonymous Coward, 15 Feb 2013 @ 2:38pm

Mother Nature is Pissed
Ree, eeee, eeee, eeee, eeee Tarded!
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JEDIDIAH, 15 Feb 2013 @ 2:38pm

Oh the Huge Manate!
This made me think of ore refining.

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.
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Anonymous Coward, 15 Feb 2013 @ 4:25pm

Re: Re:
exactly my thought. This ruling is uncomfortably vague and seems to rely on a very shallow understanding of the issue at hand.

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...
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Anonymous Coward, 15 Feb 2013 @ 4:41pm

So what is going to happen once every human gene has been isolated and patented? All research on the human genome and curing genetic diseases will grind to a halt thanks to all the fees corporations will slap on any attempt to study human DNA. Is that really the bleak future these judges want to bring about with these short-sighted rulings?
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Anonymous Coward, 15 Feb 2013 @ 5:37pm

Re:
Let's be clear, the GOVT has issued the Monopoly patent, not the corporation.
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Anonymous Coward, 15 Feb 2013 @ 6:11pm

Re:
As a cancer patient and a cancer patient's spouse, the idea that anything holding back or restricting or discouraging anything to do with progress on the research front is criminal.

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.
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Mike Maxwell, 15 Feb 2013 @ 8:15pm

I support everyone else's right to use my genes for cloning, or anything else for that matter.

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.
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shane (profile), 15 Feb 2013 @ 8:37pm

Seconded
I haven't been following this very closely, but I thought this was exactly what the issue in the US was about. Sad to see they are still pushing for the gene itself. That is unconscionable.
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shane (profile), 15 Feb 2013 @ 8:47pm

Hu-Whah?
I can't decide what you're talking about.

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.
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G Thompson (profile), 15 Feb 2013 @ 10:42pm

Re: Of course genes should be patentable
*sigh* I agree with you too.

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.
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Nikhil Phirke, 16 Feb 2013 @ 12:34am

It continues to amaze me that anyone thinks patenting things that exist naturally is a good idea.
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aidian, 16 Feb 2013 @ 6:52am

Re: Re: Of course genes should be patentable
So maybe I'm stupid, but after this:

"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?
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Anonymous Coward, 16 Feb 2013 @ 7:09am

Thanks Australia
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shane (profile), 16 Feb 2013 @ 7:10am

Re: Re: Of course genes should be patentable
"...just that DNA/RNA that was first found in the Human body and then manipulated and transformed into something different can be."

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.
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shane (profile), 16 Feb 2013 @ 8:00am

Re: Re: Re: Of course genes should be patentable
Yep, that's the state of the law, and exactly what he is saying.
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Michael K. Verble, 16 Feb 2013 @ 6:31pm

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Ninja (profile), 18 Feb 2013 @ 3:04am

Well, that's not the first stupid thing we've seen in the IP realm. And will not be the last, unfortunately. I do think the very concept of IP needs to be abolished...
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Krishna, 24 Jul 2013 @ 2:02am

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Download Apps for PC, 20 Sep 2013 @ 1:38am

Nice Article
Patent on genes? What's next, patent on fingerprints?
[ link to this | view in thread ]
Samantha, 20 Sep 2013 @ 1:39am

Education
Wow interesting article. I wonder how they even got this weird idea of patenting genes,
[ link to this | view in thread ]
Preet, 10 Oct 2013 @ 11:33pm

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[ link to this | view in thread ]
kishore, 23 Oct 2013 @ 8:26am

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Ah, but Myraid has claimed BRCA1 as theirs and has a patent to prove it... so people of the world, if you have a defective BRACA1 gene in your genome, you know who to sue. It is not God or you parents for making poor mate choice decision, it is Myraid.
[ link to this | view in thread ]
Amit, 5 Nov 2013 @ 1:42am

I like this post. It's really nice.
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nice post
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[ link to this | view in thread ]
Preet, 9 Nov 2013 @ 6:30am

Re: Good Article
So, if I find a rock in a hole, that's not patentable. But if I dig it up, put it in a box, and call it a Pet Rock, patents away!
[ link to this | view in thread ]
Aadhar Card Status, 3 Dec 2013 @ 1:14am

Genes Are a...
So if I can patent genes & DNA does that make slavery legal in Australia as long as my slaves are made out of my own patented DNA?

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 thread ]
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Pramod, 28 Dec 2013 @ 4:45am

This is why i'm a huge fan of aussie government . They always make wise decisions just as this one .
[ link to this | view in thread ]
Royal Prabhu, 28 Dec 2013 @ 4:56am

Re: cour decision
So, if I find a rock in a hole, that's not patentable . But if I dig it up, put it in a box, and call it a Pet Rock, patents away!
[ link to this | view in thread ]
Rohit, 7 Jan 2014 @ 8:59am

Court decision
this statement of australian court opened a new field of patent. now it has to be seen how many scientists will make such patents.
[ link to this | view in thread ]
monty, 7 Jan 2014 @ 9:46am

can any one tell how USA is talking this into consideration..? about
[ link to this | view in thread ]
Elvis, 9 Feb 2014 @ 12:55pm

Turntables
This verdict has two sides.
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.
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Sneha, 26 Apr 2014 @ 1:18am

This is an interesting verdict from Australian court.
Thanks for sharing this with us.
[ link to this | view in thread ]
koreresponse.com, 11 Jul 2014 @ 12:50pm

Thanks,
Thanks for this fantastic post which you have shared here.
[ link to this | view in thread ]
Fr Ton, 14 Jul 2014 @ 11:31am

Australian judge
It is one thing to patent the method for isolating this gene. It is quite another for an Australian judge to grant a patent over the naturally occurring genetic material which is extracted.
[ link to this | view in thread ]
Roger Matthew, 17 Apr 2017 @ 5:49am

Great
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