After US Victory, Breast Cancer Patients Take The Anti-Gene Patent Fight To Australia

from the don't-patent-our-DNA dept

As you hopefully remember, a few months back, a US court ruled that gene patents were not valid, after specifically dealing with a challenge, brought by the ACLU and some cancer patients, about a patent held by Myriad Genetics on the process of identifying BRCA1 and BRCA2, two genes that indicate susceptibility to breast cancer. While there will still likely be years of appeals before this gets anywhere in the US, it looks like a very similar fight is about to start down in Australia. Glyn Moody points us to the news that a similar lawsuit has been filed down under.

The difference here may be that, in Australia, Myriad worked out a deal with a local company, and that company has "gifted" the patent to various healthcare institutions for no royalty, meaning that the fact pattern is a bit different (in the US, if you wanted the test, you had to go to Myriad... or... Myriad). Of course, last year we had mentioned that Australian politicians were already discussing the possibility of outlawing gene patents -- so, potentially the regulatory process could make the judicial process here moot.

Filed Under: australia, gene patents
Companies: myriad genetics

Judge: Gene Patents Are Invalid

from the huge-news dept

In a huge ruling, U.S. District Judge Robert Sweet has said that gene patents are invalid. As you may recall, last May, the ACLU was the first to finally challenge whether or not genes could be patented. There was a lot of back and forth over the case, with many saying that a ruling against gene patents would throw a wrench into the business plans of many companies, because so many biotech/medical companies have been relying on the idea that gene patents must be valid for so long. But just because many companies relied on a mistaken understanding of patent law, doesn't mean that it should be allowed to continue. The judge made the point clear when it came to gene patents, saying that they:

"are directed to a law of nature and were therefore improperly granted."

The case was brought against Myriad Genetics, who will surely appeal, so this is nowhere close to over. But it involved a test for breast cancer, that Myriad basically had a monopoly over -- and the claim was that this not only made it more difficult for women to get tested, but it also greatly discouraged other research in the field. In part, this was because the patents that Myriad held were incredibly broad.

Patents, of course, are not supposed to be granted on things found in in nature -- and it's hard to argue against the idea that genes are found in nature. Supporters of gene patents often claim that they're not really gene patents, but a patent on identifying the gene, which is a nice semantic game that the judge clearly saw through. This is a huge step forward for encouraging more real research into genetic testing, rather than locking up important information.

Filed Under: brca1, gene patents, genes, invalid, nature, patents
Companies: aclu, myriad genetics

New Study Points Out That Gene Patent On Trial Is Very, Very Broad

from the patenting-life dept

Last year a very important lawsuit was filed, challenging whether or not it was legal to patent genes. While that trial is still (slowly) moving forward, a study has come out pointing out that one of the genes that's at the center of that trial, BRCA1, from Myriad Genetics, is incredibly broad and could be used to stifle all sorts of important research:

For instance, BRCA1 is on chromosome 17. But long stretches of DNA on chromosome 1 are identical to stretches in the Myriad patent, the researchers said.

"This claim and others like it turn out, on examination, to be surprisingly broad, and if enforced would have substantial implications for medical practice and scientific research," they wrote.

In the meantime, we're still waiting for someone to explain how it possibly makes sense to patent genes.

Filed Under: brca1, genes, patents
Companies: myriad genetics

Judge Lets Gene Patent Lawsuit Move Forward

from the free-speech dept

A few months back, we noted that (finally!) someone was challenging the ridiculous and dangerous practice of patenting genes. The company being sued, Myriad Genetics, tried to have the lawsuit dismissed, claiming that the parties (the ACLU and some cancer patients) have no standing, but the judge was not convinced and is allowing the case to move forward, noting that there is a legitimate First Amendment issue to consider here. While just a preliminary step, this is definitely a step in the right direction.

Filed Under: aclu, cancer, gene patents, patents
Companies: myriad genetics

We Waited Too Long To Figure Out If Genes Are Patentable

from the now-it-will-only-cause-problems... dept

Yesterday, at the excellent Tech Policy Summit, I got to interview Stanford professor and IP expert Mark Lemley on stage. Lemley has a new book out, The Patent Crisis and How the Courts Can Solve It. It's a good read -- and I recommend it to everyone interested in what's happening with patents. I don't agree with everything Lemley says in the book, but I think it is a much more thoughtful view than you hear coming from the two big industries fighting over patent reform. Patent reform has been (unfairly) set up as the tech industry vs. the pharma industry, and that totally misses the real problems with the system. Lemley believes that the problems can be fixed via the court system... whereas I'm not convinced, but I do think that the current patent reform proposals miss the mark by a wide margin.

The interview was quite interesting, and while most of it reviewed some of the big discussion points (what's the "problem," where is the reform plan heading, does it make sense to carve out exceptions -- such as for software patents) my final question to him was about the lawsuit we wrote about yesterday concerning the patentability of genes.

Lemley did a great job outlining the issues brought forth in the case, but concluded by highlighting what I believe is the big problem with letting the courts sort things out. He noted that while there had been legal battles over patented genes before, they had always been between two biotech firms, neither of which wanted to challenge the very idea of gene patents. So, instead, the very concept of patenting genes has been left untested in the courts for twenty-five years. What's the result? Well, an entire industry built up around it. If we suddenly say that genes are unpatentable, that will wreak havoc in that industry. Now, that may be a good thing, but it highlights the problem of leaving the question to the courts. Since no one challenged this for so long, the disruption could have quite an impact.

Earlier in the interview, Lemley quoted one of my favorite quotes about the patent system, by economist Fritz Machlup, who noted that, if we had to do it all over again, there appears to be no reason to actually create a patent system, but since we already have one, it doesn't make sense to get rid of it. But that's a big part of the problem. Now that we already have "patented genes" and an entire industry built up over 25 years around it, some will undoubtedly argue that it doesn't make sense to get rid of gene patents because of all the problems that would cause. And thus, we're left with a situation that has been highlighted in Petra Moser's research: the patent system, by default, distorts the market by creating certain industries built up around those patents, and makes it very difficult for more complete market forces to take effect.

Filed Under: gene patents, mark lemley, patent reform, patents
Companies: myriad genetics

ACLU, Cancer Patients Sue Over Patenting Of Genes

from the big-news dept

For years, we've been among those who have questioned how the hell anyone (let alone the US Patent Office) can justify the concept of patenting genes. Yet, the Patent Office has continued to issue such patents, even as they have been shown to cause significant problems in diagnosing and treating certain illnesses. Finally, however, it appears that the concept of patenting genes is about to get tested in court. The ACLU has organized a group of cancer patients who have had treatments and medical analysis limited due to gene patents held by the company Myriad Genetics, and brought the issue to court. This is a big deal... and while the case and the resulting appeals will certainly take many years, this is going to be a case well worth watching.

Filed Under: aclu, cancer, gene patents, patents
Companies: aclu, myriad genetics