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back to article Isolated human genes can be patented, US court rules

Isolating genes from human DNA structures is patentable, the US Court of Appeals has ruled. The Court ruled that the process of isolating genes from human DNA strands left the resultant individual genes with "markedly different chemical structure" from DNA in the human body. US patent law says that material related to laws of …

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This is becoming intolerable

Someone must please object on the basis of prior art...

Next thing you know the maternity hospitals will collect royalties for each patented gene in each newborn and parents of anyone born at home will be automatically fined for copyright infringement and piracy.

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Ru
Facepalm

Wrong.

Replicating a gene you already posess? No-one is patenting mitosis here. Get a grip.

Instead, what you'll see is something much more entertaining, like "we could test your newborn for a whole series of easily preventable but very unpleasant genetic diseases and cancers, but it will cost you $$$", swiftly followed by something like "failing to take these tests may impact any health insurance claims you make in the future".

Please don't assume lawyers and capitalists are stupid. There's a pretty good reason why they're all richer than you.

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There's a pretty good reason why they're all richer than you.

Is it because they're morally bankrupt money grabbing cunts?

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Anonymous Coward

Re: Wrong

And that reason is they are amoral scum, which doesn't preclude them also being stupid.

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Anonymous Coward

Sue the DNA industry

If Myriad "owns" the bit of DNA that causes breast cancer then surely, especially in America, they are legally responsible for its behaviour.

Anyone unfortunate enough to get breast cancer should now sue the "owners" of the cause.

I can't imagine the lawyers are going to turn down the extra work!

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Beautiful idea

Again a case of greed being supported by the greater greed of lawyers. Irrespective of whichever way it goes, the lawyers win. So begins the fall of another once great empire...

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Surely

Surely this is the sort of thing we pay politicians to prevent? not permit.

I really hope this is not viable in Europe, and that any such patents will be treated with the contempt they so richly deserve.

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Devil

Brilliant

This really would paint the wall red. A medical research patents misbehaving gene - thereby assuming ownership AND responsibility. Excellent. If Ford could be sued for exploding Pintos, then Gencorp can be sued for "its" cancer gene. What are they going to say? "But, your honor, we didn't invent it. We only patented it."

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Post of the century

Even if it did nearly cost me a keyboard covered in coffee

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Meh

Prior Art

>Someone must please object on the basis of prior art...

Where are all the Intelligent Design nuts when you actually need them....?

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Paris Hilton

What if....

I cut the left testicle off the silly judge who decided this and decided to patent it?

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jgb

Let them have the Poisoned Chalice

Exactly so!

Let them have their patent (based on the false claim they've invented something or made an 'inventive step') and then sue them for their shirts when their invention 'runs amok' (causing cancer) or, more subtly, their 'ownership' threatens your capability to detect yourb cancer (or whatever) and therefore infringes your human rights. That really does sound like a no-brainer!

They really should be more careful what they wish for!

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Trollface

I wonder...

... will Apple claimed to have designed human DNA, then sue the human race for imitating the look and feel of their product? After all, what use is half an i?

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Joke

Title?

According to my basic understanding of physics if you look at something then it's no longer the same as before you observed it.

I've just spent the last 10 minutes playing with a fondle slab, it's no longer the same as when I started, time to patent the fondle slab. Apple, you owe me money for infringing on my patent!

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Oh, that's just great

So when do I get sued for patent infringement?

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WTF?

Erm?

So am I going to have to start paying for the use of my genes?

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Become a parent

You will be paying for the use of your genes for the rest of your natural...

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Facepalm

The world is black and white. Oh no, wait, it's just lawyers!

"Those with a vested interest in the commercialisation of human genetics argue that the ability to obtain patent protection encourages investment in DNA research, which serves to further innovation. Those opposed to what is perceived to be the monopolisation of nature fear that the high cost of diagnostic testing, such as Myriad's tests for breast cancer will price many out of the market."

Then there are those that argue that patent protection discourages investment in DNA research, transforms the industry into a collection of lazy rentiers living off their state monopolies, pumps money to useless lawyers, keeps prices of end products artificially high and alternatives off the market, locks down the building blocks for further research and generally delays any advance in the field.

"This ruling has divided legal opinion and, if upheld, would be welcomed by America's multi-billion dollar DNA industry," David Bloom, a patent lawyer with Pinsent Masons said.

In other words, "bad for DNA research".

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WTF?

Prior Art?

Is there nothing you can't patent in America?

I want to patent the aerodynamics of flight. Boeing and GulfStream owe me a fortune.

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FAIL

Patenting the aerodynamics of flight

Someone owned the concept of winglets, those little bits that stick up at the end of the wing on modern airliners, which increase efficiency by moving wingtip vortices away from the main wing. They were discovered in 1897, patented, and consequently forgotten about instead of being used. They were patented again in 1930 and consequently forgotten about instead of being used. It wasn't until the 70s that they started to see widespread use.

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Bronze badge

"winglets"

were common on paper aeroplanes at my school in the 50s. I don't remember them having a specific name, but folding the wingtips up was standard practice.

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Megaphone

Well...

You're going to have to pay me first.

I patented breathing yesterday...

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So taking something apart allows you to patent the individual parts?

Great, pass me my Haines manual, I'm going to unbolt my engine and pretend to have invented nuts and bolts!

This is another example of corporate expropriation/enclosure of the commons. It's utter bullshit. No fucker has invented a thing here, they are all liars and should be jailed for their fraudulent patent claims. Intellectual property is theft, the judge is a moron, burn the USPTO.

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Flame

To follow this case...

you would:

i) find a method to remove a specific bolt (e.g., "use a spanner")

ii) claim you have a method of recognising when an engine contains a matching nut ("try screwing the bolt in")

iii) patent the bolt on the basis that it doesn't have an engine attached.

iv) find a queue of lawyers willing to charge large fees to defend your patent outside your front door.

Yep, burn the USPTO

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here is a title

This is so utterly batshit fucking stupid it's unfuckingbelievable. No private entity should be allowed to patent human genetic matter. Such research should be public domain and for the benefit of the entire human race not some money grubbing bastards.

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A bit too polite, methinks...

but hits the nail right on the head.

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Paris Hilton

So how many

of these things can dance on the head of a pin?

Paris because I seem to remember her doing something of the sort.

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Unhappy

Travel to the USA and get hit with a Law Suit

Just because you happen to have been born with a particular gene.

Far fetched?

If the US Legal system is anything to go by, I fear it isn't...

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Linux

No, no, no

See the AC post above about suing the DNA industry. They don't sue you; you sue them for their defective product.

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Facepalm

Wrong!

That sounds like the wrong outcome. If I understand correctly, this ruling would mean that nobody else can develop a process to look at the particular chemical sequence that is patented without negotiating a licence with the patent holder. So the holder might have a monopoly on testing for breast cancer via DNA checks.

A better outcome would be to grant a patent on the *process* used to look at the sequence. Then anybody who develops a better process to look at the same sequence can get a new patent and hey presto, we have competition!

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Right!

Greasemonkey, not the court.

They've not actually patented the gene per se - the article isn't very good on that point. They've patented the cDNA version of it (basically the DNA version with the introns excised from it). Their argument is that it doesn't exist in nature. It's a result of a piss poor understanding of molecular biology (amongst other things)

Moore CJ based his finding on the fact that RNA and DNA are entirely different. It appears he overlooked the effects of this logic.

It's still possible to work on the genes, it's just not possible to insert the gene into a bacterial plasmid and produce shed loads of the protein it codes for. It's still fine to create the RNA that will be used in translation, you just need to factor in another step to avoid using the exact DNA that was patented. Plenty of restriction enzymes are well understood - easy to bypass this patent and use this judgement to protect yourself when/if you get sued. :)

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It's just a patent...

"""It's still possible to work on the genes, it's just not possible to insert the gene into a bacterial plasmid and produce shed loads of the protein it codes for."""

My understanding of patents (admittedly I think about them in the scope of mechanisms, not molecules) is that patents only grant you the right to prevent another party from selling the thing you've patented. IE If party A patents a widget, party B can make (and give away, or use them internally) a million of them, and party A can't stop them. This is why, for instance, Microsoft sued TomTom for using patented code within the Linux kernel, instead of suing the kernel devs. Since the kernel devs give the code away for free, patents don't grant MS any ability to sue them.

In any case, that would indicate to me that you could produce all the protein you wanted, as long as you didn't sell it.

The entertaining thing to do here would be to immediately patent all possible uses for the DNA which aren't specified in the original patent, just to irritate the patent holder, and for the chance of screwing them in the future. Yes, you can patent a new use for a previously-patented object/substance/etc.

(IANAL)

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WTF?

Still insane though

So you can take literally any DNA gene, transcribe it to RNA, then use reverse transcriptase to generate cDNA, and slap a patent on it.

Time for a fucking gold rush, then. Patent everything!

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Flame

Is there a gene for retarded judges?

Maybe we could patent that and put an end to this fucking shambles.

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Confused

"Myriad had argued that it was the method of isolating the gene and not the gene itself that was the subject of its patent. Myriad appealed and in a majority decision the Court ruled that the company could patent isolated genes."

So which is it?

Are they patenting the method to extract isolated genes (what it claims the argument was)

Or the ruling which is to patent the actual isolated gene.

If it is the former then that is fair enough (if it is non-obvious and inventive how they do it beyond just making the decision this is the gene we want). This would leave the option for other people to invent other methods to isolate the gene.

Patenting the actual gene as well seems far more dubious and undesirable to society as a whole.

Thomas

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Unhappy

What's the difference?

The thing is, they did not invent their own method. Reverse transcription uses enzymes developed (but sadly not patented) by viruses - HIV being the most notorious 'inventor'. Scientists use it to trim the junk out of genes, and it's in this day and age it's such a generic technique that I'd liken this case to someone patenting the image of Plasmodium falciparum under a microscope, even though they didn't discover malaria or microscopy.

Would that mean that nobody could look at malaria anymore? Would that mean that they owned malaria? Either outcome would be absurd, and so is this patent.

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What?

Does this mean that a person could be sued in the USA if they have a natural mutation that just happens to be the same as a patented gene?

Genes should be like software (and business processes) unpatentable as genes are nothing more than meat-space programs.

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Unfortunately this is in the US

Where software is very, very patentable. And the corps based there can't wait to export their particular world-view to the rest of the planet.

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Trollface

So are churches going to challenge this

on the grounds that it was all invented by God?

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Trollface

Here's a thought

Does the Queen have the ability to rescind Independance, thereby reverting all US-owned stuff to England?

Might only need the one lawsuit to grab everything then we can sort their shit out for them

AC cos well, you know someone's gonna threaten to Push The Button on our god-damned pinko commie subversive fag backassward third world of a Limey nation within milliseconds and bomb us back into the stoneage or something. They usually do that.

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eltit

'Does the Queen have the ability to rescind Independance, thereby reverting all US-owned stuff to England?'

No, and that's probably just as well. Unless you want to see Britain landed with a multi-trillion-dollar debt?

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Anonymous Coward

What are you lot wittering on about?

If a company can isolate a particular DNA in a repeatable and identifiable way then they can get a patent on that process.

By creating such processes, we open new doors to medicine and the understanding of our bodies. This is good.

If companies can make money by doing this, they will do it. This is good.

If they can't make money doing, they won't. Not good. Bad! :-(

Or is this some random anti-capitalism bollocks? In which case get of the interspazz, you bloody hypocrites.

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Anonymous Coward

Read links before commenting

It's not the chemical process that most of the posters are objecting to. It's the courts ruling they they also own a patent on that part of DNA that the process that the process finds.

You could apply that to a biopsy. A cyst wouldn't naturally grow on it's own without a body, but the surgeon that cut it out couldn't prevent others from cutting out a cyst because they owned the patent to the scalpel and the cyst. If someone came along with a laser and cut it out, under the current ruling, the surgeon could sue even though the process was different but the cyst was the same.

Just because the sliver of DNA doesn't exist naturally, it does exist as part of a whole. So this company can sue if someone else finds the same isolated strip elsewhere as a marker for a different disease???

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Anonymous Coward

title

But the article (and someone else in the comments pointed this out too) states Myriad are trying to patent the process but the judge allowed them to patent the isolated DNA itself instead.

Which is it? If it's the isolated DNA then that is *bad* and quite rightly whinged about - such as the "you need to pay this extortionate charge to identify x genetic illness or your childs future insurance will be void. If it's the process then I'm with you and that is a rare example of good patenting.

But the quote in the article is muddled, any chance of the el reg keyboard-tippety-tappety officer clarifying this?

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@AC 11:27

"Just because the sliver of DNA doesn't exist naturally, it does exist as part of a whole. "

Just going to correct this a bit:

"Just because the sliver of DNA doesn't exist independently in nature, doesn't mean it isn't naturally part of a whole."

That DNA sliver might be cancerous but it developed as part of a natural process, hence it is natural, if undesirable, as opposed to a DNA sliver that was specifically grown off a natural one. A bit like the difference between a sucker and a graft when you're dealing with rose bushes. The sucker is natural, the graft is artificial.

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Childcatcher

Random anti-capitalism bollocks?

Listen, child: Learn2Capitalism.

It is not "rent-seeking behaviour" prodded along by members of the bar association.

http://www.dklevine.com/general/intellectual/againstfinal.htm

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biologists may think of molecules in terms of their uses

But judges know better.

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Pirate

Hmm, there are a bunch of questions here

The first one that comes to mind is "what happens to the public interest aspects of this?" but the most important by a country mile is "Exactly how was this verdict bought from the judge?" because you just *know* there are a shitload of bioprospectors/biopirates cheering on at the notion that they might yet be able to patent stuff that they haven't invented but can exploit for massive wealth.

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Good / Bad?

is this a good or a bad thing? most posts on here seem to either be of of the 'lets trust the lawyers, it will be al right' persuasion, or 'the sky is falling, you will get my dna molecules when you pry them from my cold dead hands!' view...

has anyone analysed this to see what full consequences of the ruling will be (if it stands as it is now, appeals depending, etc)

will this mean existing procedures or anything that uses those dna structures currently are affected? -if so that's bad (but wouldn't that by default be prior art?).

will this mean that lots of companies have an incentive to find out what parts of our dna does what, and for that the devils due of economic rights to those parts for a number of years we will now be able to cure diseases up until now uncurable? -more good than bad.

is this simply going to usher in a new era of dna and cell research? -def good

Will this imped other research in this area, research that would have been carried out without these patent rights? -bad bad bad

am I being too practical about this?

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Hmm.

"This ruling has divided legal opinion and, if upheld, would be welcomed by America's multi-billion dollar DNA industry," David Bloom, a patent lawyer with Pinsent Masons said.

Billions of dollars involved? That dull thud you just heard was the sound of a rubber stamp.

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