Australian Patent Lawyers Claim Patenting Genes Is Necessary For Biomedical Research

from the patenting-nature dept

Here in the US, there's an important legal battle going on over whether or not you can patent genes. Not surprisingly, we're very much against such a system, which gives a total monopoly to certain companies on doing certain types of genetic testing. It also makes no sense at all, as patents are supposed to be about promoting invention -- not finding something in nature that others can also find. Down in Australia, however, there's a similar debate going on, but in the legislative branch, rather than the judicial. Reader sinsi alerts us to the news of a recent panel discussion in Australia where a bunch of patent attorneys predicted the virtual collapse of the biotech industry in Australia if firms weren't able to patent genes.

This is, of course, ridiculous. First of all, much of the research on these things is often done via government and university funding -- and it's often done for reasons other than locking up a monopoly on the technique. Reasons such as helping people live better lives (*gasp* -- what a concept!). Or, more to the point, it's done so that firms can sell an actual product. If they have to compete in the marketplace, that's a good thing, as it pushes them to be more efficient and offer a better overall service, rather than just jacking up prices. And how do they offer a better overall service? Oh yeah, often by continuing to do more research and creating new breakthroughs.

These sorts of claims of industries collapsing are moral panics and folk devils put forth by patent attorneys who are really afraid that it's going to hurt their own business. There's simply no evidence at all that it harms the overall biomedical profession if they can't patent the finding of naturally occurring genes.

Filed Under: australia, gene patents, patents

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

Australia Explores Whether Genes Should Be Patentable

from the patenting-human-life dept

Via Glyn Moody we found out that Australia is discussing whether or not gene patents should be allowed. As you may recall, such patents have been allowed in the US for years, but are finally about to be tested in court for the first time. Over in Australia, rather than letting the courts figure it out, it looks like politicians are haggling over the question -- which is scary enough, since that often leads to whichever lobbyists have spent the most money. Hopefully common sense prevails (I know, I know, it's not so common), and the idea that you can patent a building block of human life is simply laughed out as ridiculous.

Filed Under: australia, gene patents, patents

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