If a piece of cDNA is patented by some company, is that patent automatically voided if someone happens to identify, isolate or otherwise find it to occur naturally, perhaps in an ancient isolated sect of humanity?
In a welcome display of patent-law sanity, the US Supreme Court has unanimously ruled that human genes can't be patented. "We hold that a naturally occurring DNA segment is a product of nature and not patent eligible merely because it has been isolated," wrote Justice Clarence Thomas, who authored the court's decision. The …
I don't pay much attention to him, admittedly, but it seems to me that Pope Francis avoids wearing a funny hat whenever he can get away with it.
As for the bears in the woods, some joker seems to have put out some bear goodies laced with antidiarrheals, so they're all constipated now.
Yeah yeah, I'm going. Mine's the one with the empty Imodium AD boxes in the pocket.
If they've managed to keep a patent a single string of complementary DNA, then they've pulled a blinder on the supremes. I don't even work in life sciences, but I know that's a re-coding of the original DNA with some bits deleted. So it surely ought to be as un-patentable as the original human gene.
If they're the company that first worked out HOW to do this in a lab, perhaps they deserve a patent for the laboratory technique (though in principle, they're just using the same mechanisms that nature evolved).
So how is rearranging naturally occurring DNA into a new pattern to do something new any different from rearranging naturally occurring iron ore into a new shape to do something new?
If I can manufacture a bit of DNA to make a bacteria produce diet coke how is that any less patentable than me inventing a machine to make diet coke?
I don't know the details of what exactly the supremes did allow them to patent. As I said, if it's the novel lab or field techniques that allow testing for the BRCA1 gene, that may be fair enough. But if it's the complementary DNA sequence itself, that's really no different to patenting the BRCA1 gene (which the supremes disallowed).
An analogy might be a court saying that you aren't allowed a patent on the 23rd page of "Wuthering Heights", but letting you obtain a patent on the same with all occurences of the words "The" and "A" deleted. Complementary DNA is the original DNA with sequences known as introns deleted.
The supremes didn't affirm any such patent. They just said that it wasn't at question in the case at hand, so they weren't going to decide on it.
They said "this patent is invalid and these other patents are not affected" - that doesn't mean that those other patents are valid, it means come back and ask us about those other patents and we'll have a look at those if you need us to.
If you've read AJ Thomas' judgment, you'll see why they avoided those other questions; they spent a lot of time learning the science and they don't want to have to learn a load more about cDNA and replication techniques unless they really have to.
" but I know that's a re-coding of the original DNA with some bits deleted. So it surely ought to be as un-patentable as the original human gene."
I think you're presuming that working out which bits to delete is obvious.
While molecular biology sort of looks like computer programming verifying what is and is not doing something within the gene is not obvious.
There is no DNA version of GDB.
I'm not a biologist, and I haven't yet read much reporting of the judgement, but I'm concerned that the following analogies may be appropriate.
Let's say I invent a machine that can read a very old novel aloud, such that it sounds like a human speaking. Can I now prevent anyone reading the novel aloud because the novel doesn't naturally exist in voice form?
If I now invent a machine that can take my speech version of the novel and produce written text of one chapter, can I now prevent anyone using the written chapter when it's isolated from the original novel?
Sadly it does appear to be something of a hollow victory in practice. If they can just produce essentially the same thing with a minor change artificially and claim it as their own work, the money printing machine can roll on, denying medical treatment to any but the most wealthy. Sad, as I was initially delighted at such a rare victory for common sense.
I find medical patents especially odious, because there is so often a very short, straight line to be drawn between the making of fat profits and suffering / premature death from conditions that are effectively then curable, but only for the wealthy few or at the risk of bankrupting health systems. With ethics like these it only seems a matter of time before we end up with some bean counters wet dream; global blackmail by some lab enhanced, virulent disease curable only with a 'miracle' patented treatment at suitably vast cost. Ridiculous?
This why vaccine research and development should be paid for by government money and not left to profit-motivated companies. The pharmaceutical industry (in the US at least) often seems to have little to no interest in actually curing or preventing anything. It's *far* more profitable to temporarily alleviate symptoms with a pill you take every day versus selling a shot or pill that you take once or twice and you're covered for life*.
What's the old saying, "an ounce of prevention is worth a pound of cure?" Or in this case, "a single vaccine is less profitable than a handful of pills every day for the rest of your life."
*Annual flu shots not withstanding.
Text to speech already exists, so prior art would invalidate your speaking machine patent. Similarly, speech to text also already exists so ditto on that.
Reading a work aloud is considered a "performance" of the work. A recording of said performance could be copyrighted separately from the original work, even if the original work is in the Public Domain. (This is how Disney owns the copyright on a number of works that are derived entirely from Public Domain fairy tales.) Should the original source material NOT be Public Domain then unless you obtained the performance rights, your derived work would violate copyright.
A better analogy might be carving a baseball bat out of a log. Nature made the tree branch the log came from, but you made the baseball bat by carving away the wood you didn't want. Arguably a baseball bat would be patentable if you were the first to come up with the idea.
It's also important to note that cDNA is merely patent *eligible* which means (in theory) that it still needs to be novel and useful before a patent is awarded. (I know, I know, US Patent office, etc... You can all stop sniggering now.)
Most of the patented GM plants are just taking a bit of DNA from one thing (resistance to weed spray, or produce insecticide...) and patching it into the DNA of another thing.
So if they are taking a but of something that's not patentable, and sticking it into something else that's not patentable. How is the result patentable? If that was reasonable then every baby should be patentable too.
The assembling of two or more items, even if said items are not patentable themselves, or the manipation of non patentable materials, that results in a new thing is generally patentable. It is at the core of patents actually as very, very few things are created from nothing. That's why you can't patent iron but can patent a unique type of iron hinge.
This is also where prior art (as viewed by the patent office, not online interpretations of the term) can come in as well. If you reference prior art in your patent application it makes a new patent easier to get, as it is leveraging precedent, but also sets up a scenario for cross licensing if the referenced patent is still protected.
Those things apply to everything including GMO's, which take naturally occurring substances and combine them to result in a new thing. Does that help? Overall the patent system is pretty well thought out and works fairly well if applied to suitable things. Software for example isn't really suitable for patents, that's why IT IP is so messed up.
"That's why you can't patent iron but can patent a unique type of iron hinge."
It's not like taking a raw material and making a new item.
It would be more like taking a bike bell and sticking it on a car, and getting a patent for the whole thing.
Then the companies insurance division will offer a 10% discount for cars with bells.
They are just sticking a bit from one thing, onto another. Corn is still corn, but now has a gene for resistance to weed spray (taken whole from a weed that developed the resistance naturally). The same company happens to sell that weed spray.
And for a bonus they claim patent infringement on the farmer down the road who didn't buy their seed because the pollen from their patented corn has blown onto his crop.
So no it's not pretty well thought out, this is just as stupid as the slide to unlock patent.
"if they are taking a but of something that's not patentable, and sticking it into something else that's not patentable. How is the result patentable?"
As I understand the judgement, the RESULT is not patentable. However if they have a novel TECHNIQUE for doing it, then the technique is patentable. If someone cam get the same result with a different technique they don't need to license the technique patent.
Ok, I'm curious. Monsanto's GM work with crops all deal with taking genes from one organism and injecting them into another. Does this ruling break their patents, given that they're using naturally occurring genes in their GM crops? And if so, how long before food prices drop back down to what they should be without the Monsanto monopoly artificially inflating them?
Since the basis of the Supreme court ruling against human DNA patenting is that human DNA is naturally occurring, it follows that patents on animal / plant DNA would be invalidated by the same reasoning.
However due to the cDNA part of the ruling it's quite possible that some/many Monsanto patents would still be valid if they are modifying the DNA, not just cut/paste from one organism to another
How exciting. So if I make a cDNA library of a human genome, where I have copies of most of the genome, then I am potentially breaking a patent?
And is the cDNA as a whole patentable? What about parts? I mean, if it's a smaller enough part then it will cover DNA which is naturally occurring? Or does the patent only cover DNA which has been reverse transcriptased, and not DNA which has identical sequence, but which has not been produced from RNA?
I mean, I could go and read the verdict of course. But life is far too short, and I am sure that the comments here will be just as informative. Okay, well, maybe not. Probably more fun though.
"...separating that gene from its surrounding genetic material is not an act of invention".
Absolutely true. The *method* by which you separate it might be, but not the DNA itself.
Ditto with the afore-mentioned test<->speech machine mentioned in a previous comment: the voice itself may not be patentable, but the method for generating it might be.
Part of the theme of the novel is if a corporation owns the patent on a gene a researcher found in your body do they pay you for it?
Or do they (in effect) own you?
The answer (now) is they don't.
Thumbs up for a unanimous and sensible verdict.
So, if a certain rare type of DNA is shared by only a few people in some obscure part of the world... and they unfortunately happened to get wiped out by some kind of natural disaster (after some big corporation happened to have taken samples of their DNA)... that rare DNA would no longer be "naturally occurring", now would it?
The judgement does not rule on the patentability of cDNA overall, it merely says that the section of the act under consideration here does not rule it unpatentable.
From the judgement
"As a result, cDNA is not a “product of nature” and is patent eligible under §101, except insofar as very short series of DNA may have no intervening introns to remove when creating cDNA. In that situation, a short strand of cDNA may be indistinguishable from natural DNA.9"
That 9 at the end leads you to this footnote
"9 We express no opinion whether cDNA satisfies the other statutory requirements of patentability. See, e.g., 35 U. S. C. §§102, 103, and 112; Brief for United States as Amicus Curiae 19, n. 5. "
The cDNA issue remains to make another bunch of lawyers richer ...
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