US court to decide if human genes can be patented

Nov 30, 2012 by Jesse J. Holland

The Supreme Court announced Friday it will decide whether companies can patent human genes, a decision that could reshape medical research in the United States and the fight against diseases like breast and ovarian cancer.

The justices' decision will likely resolve an ongoing battle between scientists who believe that genes carrying the secrets of life should not be exploited for commercial gain and companies that argue that a patent is a reward for years of expensive research that moves science forward.

The current case involves Myriad Genetics Inc. of Salt Lake City, which has patents on two genes linked to increased risk of breast and ovarian cancer. Myriad's BRACAnalysis test looks for mutations on the breast cancer predisposition gene, or BRCA. Those mutations are associated with much greater risks of breast and ovarian cancer.

But the American Civil Liberties Union challenged those patents, arguing that genes couldn't be patented, and in March 2010, a New York district court agreed. But the U.S. Court of Appeals for the Federal Circuit has now twice ruled that genes can be patented, in Myriad's case because the isolated DNA has a "markedly different chemical structure" from DNA within the body.

Among the ACLU's plaintiffs are geneticists who said they were not able to continue their work because of Myriad's patents, as well as breast cancer and women's health groups, patients and groups of researchers, pathologists and laboratory professionals. "It's wrong to think that something as naturally occurring as DNA can be patented by a single company that limits scientific research and the free exchange of ideas," said Chris Hansen, staff attorney with the ACLU Speech, Privacy and Technology Project.

A call to a Myriad spokeswoman was not immediately returned, but in court papers the company's lawyers said without being able to patent and profit from their work, they would not be able to fund the type of medical breakthroughs doctors depend on. The company also said that deciding now that genes can't be patented would throw into chaos current research and profits structures for drug-makers and medical research companies, who have gotten more than 40,000 DNA-related patents from the Patent and Trademark Office for almost 30 years, according to court papers.

"Moving the goalposts of patent eligibility for these patents now would ... undermine the interests of the investing community: Clear and certain patent protection is critical to honor the interests of past investors, such as those who funded the research behind these inventions," the company said in court papers.

In 2010, a federal judge ruled that genes cannot be patented. U.S. District Judge Robert Sweet said he invalidated the patents because DNA's existence in an isolated form does not alter the fundamental quality of DNA as it exists in the body or the information it encodes. But the federal appeals court reversed him in 2011, saying Myriad's genes can be patented because the isolated DNA has a "markedly different chemical structure" from DNA within the body.

The Supreme Court threw out that decision and sent the case back to the lower courts for rehearing. This came after the high court unanimously threw out patents on a Prometheus Laboratories, Inc., test that could help doctors set drug doses for autoimmune diseases like Crohn's disease, saying the laws of nature are unpatentable.

But the federal circuit upheld Myriad's patents again in August, leading to the current review. The court likely will hear the case in the early spring and rule before the end of the summer.

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dogbert
4.5 / 5 (15) Nov 30, 2012
The concept of a patent was developed to reward, for a short time, the creation of something new and marketable.

DNA is not anything which any human being has created. It should be and remain unpatentable.

That should not prevent patenting a specific test for a specific condition.
Silverhill
2.3 / 5 (9) Nov 30, 2012
DNA is not anything which any human being has created. It should be and remain unpatentable.
Wood, stone, and even naturally-occurring metal were not created by humans either, yet patents have been granted for ways of doing novel things with those materials.
Some of the precursor molecules for various plastics are natural too, yet patents have been granted for derivative molecules.

The naturalness of a substance should not be a sufficient criterion for rejecting patents covering novel use thereof.

Now, whether genes should be patentable is another issue, yet to be fully resolved.
Bog_Mire
4.4 / 5 (7) Nov 30, 2012
jesus frikkin christ - what is it with you septics and thinking you can "own" everything?
C_elegans
4.5 / 5 (4) Nov 30, 2012
All human genes are known, so who would be the owner...?

I can only imagine that this refers to artificially created plasmids, targeting techniques for biotherapeutics etc. Or is our judicial system really that far behind?
C_elegans
3.3 / 5 (3) Nov 30, 2012
If anyone wants to know their BRCA1 susceptibility risk, send me an email and I'll get it done for 1/100th what Myriad charges. This is quite outdated.

PS Moderators, I'm totally joking. But I think that openbio is to the point that Myriad's argument would be considered the equivalent of "patenting" geometry.

Telekinetic
5 / 5 (3) Nov 30, 2012
"But the U.S. Court of Appeals for the Federal Circuit has now twice ruled that genes can be patented, in Myriad's case because the isolated DNA has a "markedly different chemical structure" from DNA within the body."- from the article

Reminds me of how to "knock off" an invention, product, or design by altering it slightly. If it hinders research because a lab has to pay a royalty to the patent holder, then the research should be done in China, where intellectual property is just an intellectual exercise.

dogbert
4.1 / 5 (9) Nov 30, 2012
Patentability has become so expanded and patents have become so numerous and restrictive, it is well past time that the concept of a patent should be re-examined.

Silverhill,
Wood, stone, and even naturally-occurring metal were not created by humans either, yet patents have been granted for ways of doing novel things with those materials.


You cannot patent wood, stone, water, air, fire, etc. Natural processes/substances are not patentable -- and should not be. DNA is on the same order as wood, stone, water, etc. It is a natural substance created by natural processes.
KalinForScience
5 / 5 (11) Nov 30, 2012
only in America... patents should be for inventions, not for discoveries... and this only should simply solve the issue.
KalinForScience
5 / 5 (3) Nov 30, 2012
btw.. what is meant by a "patented gene"? ... what does it imply? would anyone explain it to me, please?
Osiris1
2.8 / 5 (11) Dec 01, 2012
Let us suppose that a woman named Eileen has this gene, finds out she has breast cancer, and gets treated. It fails. Then she goes to a faith healer or a shaman and is cured. Nice job...until the company holding the 'intellectual property' throws the faith healer in prison for cracking a 'security system', and then forces her to be innoculated with a fresh dose in gene therapy to replace the gene that almost killed her--so it can try again!

The code protecting their 'intellectual property' which is really a disease. Same if a drug cures it....destroys the 'intellectual property of the new owner. You do not own your own bodies any more. Any crook can then patent the genes that can kill you, and force you to suffer and die unless you pay them 'protection money' to allow you 'temporary respite' as long as you continue to pay the crooks. When the money flow to the legal blackmailers stops, so does your life!
kochevnik
3 / 5 (4) Dec 01, 2012
I want to put a patent on Scarlett Johansson
extinct
2 / 5 (5) Dec 01, 2012
breast cancer is alleviated by marijuana. I knew you couldn't handle the truth
All it takes is one doofus judge to make a wrong decision that will negatively impact humanity for the rest of its duration here on earth. Common sense says you cannot patent nature, and common sense also says that when you try to dominate nature by tinkering with DNA or by any sort of ill-conceived tinkering, you always get bad results. but folks in positions of authority lack common sense these days, so hang on to your hats
kevinrtrs
2.3 / 5 (6) Dec 01, 2012
yet patents have been granted for ways of doing novel things with those materials.

Pray explain exactly what novel ways of doing novel things with the discovered gene has occurred here to make it patentable?
PoppaJ
3.4 / 5 (5) Dec 01, 2012
If a company can own the materials that make me up then that opens the door to charging royalties for our existence in both life and death all the way through to the complete decay of our genetically identifiable components. This is completely unreasonable. They did not make the machine that made my DNA, They only made the machines that were able to identify and catalog our DNA. That machine can carry a patent, not the DNA that is already there. Newly created DNA that has no natural analog may carry a patent however an ongoing royalty payout cannot be allowed. Imagine having cancer and getting a DNA injection that cures it and then one day you can't pay. What then? Do they come and give you cancer back? The court had better tread wisely on this.
PoppaJ
3 / 5 (4) Dec 01, 2012
P.S. I am so glad the world is coming to an end in just a few short weeks. lol
Hari_Seldon
5 / 5 (2) Dec 01, 2012
I'll be the first in line to get my GULO gene fixed, but since no human has a functioning version of it I bet the first person to achieve this will get a patent on it :(
Anda
2.3 / 5 (3) Dec 01, 2012
We are fucked if such a decision has to be made by your us court.
What's next? Water? Air?
Pandora's box... This smells like a bad sf story!
TheKnowItAll
2.3 / 5 (3) Dec 01, 2012
First of all it's not up to a small group of people to decide. Let's force a worldwide referendum on it and put an end to this madness.
TheGhostofOtto1923
3.8 / 5 (13) Dec 01, 2012
Perhaps gene therapy can help to ameliorate the more puzzling and disturbing aspects of human behavior
http://www.youtub...XpLOYfog
TheGhostofOtto1923
2.9 / 5 (16) Dec 01, 2012
Pray explain exactly what novel ways of doing novel things with the discovered gene has occurred here to make it patentable?
The ability to assign legal status to genes offers the advantage of declaring particular genes dangerous, whether 'natural' or not, and requiring their removal from the gene pool for the Greater Good:

"The God gene hypothesis proposes that a specific gene (VMAT2) predisposes humans towards spiritual or mystic experiences...The God gene hypothesis is based on a combination of behavioral genetic, neurobiological and psychological studies."

-I for one am in favor of assigning a relative positive or negative value to genes and their associated expressions. Crime and psychosis may thus be eliminated by simply making the genes which elicit them illegal to possess or distribute.

Or at least assessing a 'sin' tax on people such as religionists who insist on keeping deleterious genes because their god sought fit to dispense them and who are they to argue?
Sanescience
4 / 5 (2) Dec 01, 2012
Lets all recognize that we can't get away from human psychology. There are VAST sums of money in the balance here. Which means it will be a never ending battle to balance incentivising the investments needed to understand these diseases, and the interests of patients for access to treatment.

No naive one solution is going to fix the problem. If only public funding is used to research the human genome, it will advance at a tiny fraction of the current pace. If there is only aggressive privatization, life saving developments can be used to "blackmail" people into handing over everything they own to stay alive.

Lets all be grown ups and recognize there is a middle ground and a lot of effort will be needed to fend off the "idealists" on both sides to keep it there.
Lurker2358
1.7 / 5 (6) Dec 01, 2012
btw.. what is meant by a "patented gene"? ... what does it imply? would anyone explain it to me, please?


Given the way "patented genes" have been used in farming, the owner can probably sue you if you happen to have the patented gene.

It has happened before in the case of GM corn, when their modified corn pollen screwed up a farmer's corn, the company sued the farmer and WON.

Therefore, if the same logic gets applied to human genes, it seems likely that corporations would be able to sue humans who have the gene they have "patented".

See Otto's post for a prime example of this potential evil, as Otto is about an evil, genocidal person as you can find, and bears witness of it right here, proudly, for everyone to see.
ValeriaT
2.3 / 5 (3) Dec 01, 2012
You shouldn't be able to patent publicly known things - and human genome was published already. Of course, it's difficult to explain it to patent officers, who aren't penalized for granting of unoriginal patents and who can only get money with their acceptation.
Telekinetic
3.7 / 5 (3) Dec 01, 2012
"See Otto's post for a prime example of this potential evil, as Otto is about an evil, genocidal person as you can find, and bears witness of it right here, proudly, for everyone to see." -Lurker2358

In defense of Ghost, the real and present danger is gender selection, because in this patriarchal world, boys would be ushered in exclusively leaving a future of dateless nights.
As for Otto, well, the Malthusians should be the first to go!
Husky
4 / 5 (2) Dec 01, 2012
This is one of those times that I wish the Intelligent Design people send their lawyer to claim the entire dna patent on behalve of the holy trinity.
Silverhill
3 / 5 (1) Dec 01, 2012
@dogbert:
Wood, stone, and even naturally-occurring metal were not created by humans either, yet patents have been granted for ways of doing novel things with those materials.
You cannot patent wood, stone, water, air, fire, etc. Natural processes/substances are not patentable -- and should not be. DNA is on the same order as wood, stone, water, etc. It is a natural substance created by natural processes.
I didn't say that wood, stone, etc. are patentable. I said that certain ways of *using* these pre-existing substances, in modified forms, are sometimes patentable.

@kevinrtrs
Pray explain exactly what novel ways of doing novel things with the discovered gene has occurred here to make it patentable?
Oops---I was thinking of genes that are synthetic (artificially modified or built from scratch), not simply discovered. Indeed, mere discovery should not be reason for a patent!
Husky
3 / 5 (1) Dec 01, 2012
people are losing their tits because myriad wants to milk them, i hope the court is objective and sane enough to not let this pass.
TheGhostofOtto1923
3.3 / 5 (16) Dec 01, 2012
See Otto's post for a prime example of this potential evil, as Otto is about an evil, genocidal person as you can find, and bears witness of it right here, proudly, for everyone to see.
Yeah, QC would be all for weeding out genes which might cause homosexuality but not sociopathy. I suppose he considers them the same thing.

No, the real evil is that religionists declare a zygote a human being and then resist the sort of stem cell research which could help millions suffering from congenital diseases. Suffering brings one closer to god, they say.

God must WANT people to suffer, he sat by for a few hundred thousand years and watched them live godless lives, condemned one and all to hell, and then finally decided to offer redemption through the pagan rite of human sacrifice.

He gives us all sorts of deformity which his lacked forbid us to attempt to fix. WHY?
TheGhostofOtto1923
3.3 / 5 (16) Dec 01, 2012
Hey QC want a laugh?

"PAT ROBERTSON EMBRACES EVOLUTION: 'IF YOU FIGHT SCIENCE, YOU'RE GOING TO LOSE YOUR CHILDREN'"

""You go back in time, you've got radiocarbon dating, you got all these things, and you've got the carcasses of dinosaurs frozen in time out in the Dakotas," said Robertson Tuesday. He continued, "There was a time when these giant reptiles were on the earth and it was before the time of the Bible. So, don't try and cover it up and make like everything was 6,000 years."

-AHAAAHAAAA. But this is not the first time you all have been forced to accept the light. You ALWAYS choose the darkness of ignorance. You INSIST on it.

I suppose now that pat (and the pope) accepts reality, we might address the question to HIM: Why did god wait to offer mankind the ONLY way to get to heaven? (john3)

We've chased you religionists from our living rooms back to within a few picoseconds of the big bang in only a few hundred years. VICTORY is in sight.
Tausch
1 / 5 (1) Dec 02, 2012
"Property is theft"
Most here recognize the source of this quote.
Use in a entirely different context/thread commentary.
(Hint:VendicarD)
Lurker2358
2.3 / 5 (3) Dec 02, 2012
Yeah, QC would be all for weeding out genes which might cause homosexuality but not sociopathy. I suppose he considers them the same thing.


I'm not for "weeding out" anyone, and I don't consider homosexuality a genetic disorder. It's a choice that people make, and contrary to nature.

I am for the death penalty for most forms of murder, however. Not only is it the right thing for the individual, but it's the right thing for civilization. We shouldn't keep murderers in prisons where it costs 30,000 per year to keep them locked up and fed.

I never said anything about harming homosexuals.

If our civilization would quit accepting every perverted lifestyle choice that comes down the pipe for PC reasons, this would be considered a mental disorder like it used to be, and they'd be counseled and treated against their perversion.

Did you see on HLN the new "transgendered" 5th grade boy wants to go in the girls bathroom at school? Why should the girls be required to deal with this?
Lurker2358
2.3 / 5 (3) Dec 02, 2012
...cont...

Because the alleged "rights" and "freedoms" of one pervert (who needs medication, parenting, and mental health counseling,) infringes upon the rights of everyone else.

The little kid on Kindergarten Cop was right:

"Boys have a penis. Girls have a vagina."

Little boy should be told he has a penis, and needs to learn to accept it and love it.

If we quit promoting in pop culture (with perverts like RuPaul,) and quit accepting every perversion and distortion that comes down the pipe, this problem wouldn't keep growing like some sort of plague.
Telekinetic
5 / 5 (1) Dec 02, 2012
@ Lurker:
I'm disappointed by your extremely judgmental stance toward gays and others that don't fit your notion of the norm. World culture, politics, and ideals are transformed and enriched by myriads of these "abnormal" people. Try to imagine the terror that a child must live through of being "discovered", when his biology gives him no choice. . And in your own circle of friends, relatives, and friends of friends, you haven't encountered a gay person who on every level except sexual preference was like anyone else? You must be living in a cocoon if not. Homophobia is a condition of non-acceptance of the "other", similar to xenophobia but with more dangerous consequences at times. You can differ with others in matters of opinion, but not in choices of who they love.
Silverhill
not rated yet Dec 02, 2012
I don't consider homosexuality a genetic disorder. It's a choice that people make, and contrary to nature.
No. That which occurs naturally is not contrary to nature. It's NOT a choice--it's a discovery. Ask some gay people about it, and bring an open mind with you (if you can find one).

Not only is [the death penalty] the right thing for the individual, but it's the right thing for civilization.
Provided, of course, that the condemned are incontrovertibly shown to be guilty. Consider the fact that DNA evidence has exonerated many people awaiting execution for murder.
Silverhill
not rated yet Dec 02, 2012
If our civilization would quit accepting every perverted lifestyle choice that comes down the pipe for PC reasons, this would be considered a mental disorder like it used to be, and they'd be counseled and treated against their perversion.
You should say: If our civilization would open its eyes (and hearts), and achieve non-prejudicial understanding, it would never again mis-classify victims of a hormonal "oops" in utero. There would be no "perversion" needing anyone's narrow-minded "treatment".

BTW, RuPaul is a transvestite--he does it for fun (and maybe to shock the prudes and bigots), not out of some "perverse compulsion".

Did you see on HLN the new "transgendered" 5th grade boy wants to go in the girls bathroom at school? Why should the girls be required to deal with this?
Why should the girls care? When they're using the bathroom, they're concealed in stalls anyway. They're not able to see what kind of genitalia are in use.

Get thee behind me, bigot!
ValeriaT
not rated yet Dec 02, 2012