Myriad Genetics Finally Gives Up Its Gene Patent Fight... Just As The Patent Office Opens The Doors Up To More Gene Patents
from the some-good,-some-bad dept
For many years, we've been covering the story of Myriad Genetics, the biotech company that has a test for the BRCA1 and BRCA2 genes (often an indicator of a higher risk for breast cancer). The company argued that because of its patent on those genes, no one else could test for those genes. Back in 2013, the Supreme Court did the right thing and finally rejected the concept of gene patents, despite years of the USPTO granting such patents. As the court noted, allowing gene patents created a perverse situation in which a single company could have the exclusive right to isolate a person's own genes -- and that's just not right.But Myriad Genetics did not give up easily. Just a month after the Supreme Court ruling it sued a bunch of competitors over a different set of gene patents, insisting that the Supreme Court had really only struck down the two in question. Those lawsuits did not go well, as Myriad lost again and again. At this point, it's only choice was to go back to the Supreme Court, where it was obviously going to get a pretty big smackdown -- so Myriad has now admitted that it will not pursue an appeal effectively ending this latest round of cases (after costing those other testing centers tons of money to defend themselves).
As the ACLU notes, this news is great, but there's also some bad news. Just as Myriad is finally coming to terms with what the Supreme Court actually said a year and a half ago, the US Patent and Trademark is quietly opening the door back up to gene patents:
In response to severe criticism by industry groups, patentholders, and patent attorneys, the Patent Office issued new guidance in December that watered down the standard for determining whether something is an unpatentable product of nature. It said that differences in structure or function could allow companies to patent things based in nature. Under this test, if a surgeon removed a kidney from one's body in order to transplant it, the surgeon could argue that she should be able to patent it because it no longer has the same structure as in the body since its blood vessels were cut. The kidney, of course, would be intended to function just as it has prior to being removed in the body that receives it.In other words, the ugly head of gene patents may be about to come back alive, despite the Supreme Court killing it off a couple years ago. However, there's still a chance the USPTO will reconsider:
The Supreme Court has long rejected this view. For example, in 1931 the court said that a fruit treated with a preservative in its rind could not be patented, because while it has a different structure, its uses are still the same – to be eaten. The applicant could have sought a patent on a new preservative it developed, but not on the fruit itself.
The public has an opportunity to weigh in on this latest guidance. The Patent Office is seeking comments until March 16. In its next revision of the guidance, the Patent Office must require differences in both structure and function when assessing patent applications. Otherwise, the public will bear the consequences when another company, like Myriad, wields its exclusive rights on nature to stall medical and scientific advancement.
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, gene patents, patents, supreme court, uspto
Companies: myriad genetics
Reader Comments
Subscribe: RSS
View by: Time | Thread
I can see the headlines now
[ link to this | view in chronology ]
Re: I can see the headlines now
So they at least can't sue you for infringement. But it's still stupid. They are trying to patent a discovery, not an invention.
[ link to this | view in chronology ]
Re: Re: I can see the headlines now
They were trying to patent an idea, testing for the risk of breast cancer, once they had a viable test. They tried to achieve this by patenting the genes, rather than the test.
[ link to this | view in chronology ]
Patents is a profit law more then it is a progress law........as there is a transfer of wealth, i'd say this can be seen as a transfer of power.......positioning oneself to be the only provider..........i do think thatinovators should get something, but in no way do i put that above the benefit of humanity..........i'd rather be without, then adopt a system that benefits the few
[ link to this | view in chronology ]
[ link to this | view in chronology ]
Just sue their ass off
[ link to this | view in chronology ]
Re: Just sue their ass off
1) Patents are for novel inventions
2) Company X has a patent on gene R that's killing people when it is expressed.
3) Since company X is claiming to have invented gene R (otherwise there's no patent), they must be held liable for any misuse of that gene, such as when killing people.
Of course, that falls apart because they're only claiming patent on how they've reshaped the gene by isolating it from other biological material. By definition, that means they're claiming the patent on a gene that is no longer capable of being expressed by the host.
But they really should be patenting the *process* not the biological material itself.
[ link to this | view in chronology ]
Makes me wonder....
[ link to this | view in chronology ]
Hyperbolic, but not by much
[ link to this | view in chronology ]
USPTO
[ link to this | view in chronology ]
Re: USPTO
[ link to this | view in chronology ]
Re: Re: USPTO
Yes, in that case it was about the MPAA and similar organizations. I'm not sure that's what's going on here though. I doubt the patent office sees any real risk of the patent system going away and thus them becoming obsolete.
[ link to this | view in chronology ]
Re: Re: Re: USPTO
True,but like all bureaucracies, they wish to build their power, and that means enabling more patents to be granted. Also, politicians use the number of patents granted as a measure of innovation in the economy, which again creates pressure to grant more patents.
[ link to this | view in chronology ]
Re: Re: Re: Re: USPTO
I agree, those are both problems.
[ link to this | view in chronology ]