You can patent a gene?

[pirana 0]

ABSURD!

I read thru an article in the NYT this morning and a group of patients, oncologists, and others are suing a company that has patented a gene that causes breast cancer.

I thought you had to actually invent something to get a patent. how can a natuarally occuring thing, much less a thing that exists in damn near every cell of every living human, be patented?

There was mention later in the article that the whole situation is the result of ambiguity in patent law; and hopefully over the course of this lawsuit people with the authority to do so will make sure these kinds of shenanigans are nipped in the bud.

Anybody out there with patent law/medical ethics background got a take or inside info?

I would think you could not patent a gene any more than you could patent a raccoon (just a normal raccoon, not some glow-in-the-dark mad scientist creation).

Kind of harkens back to Middle Ages when Europeans would sail across the ocean, land on some beach, then right in front of the natives plant a flag and claim the land. It's my land (gene) and you can not own it, right?

If I go in for examination and the doctor finds something unusual with my eye, can he patent my eyeball?

" . . . the lust for power can be just as completely satisfied by suggesting people into loving their servitude as by flogging them and kicking them into obedience." -- Aldous Huxley

[rhys 0]

I have a patent and I know that a major part of having a patent accepted is a search for 'Prior art'. If something with the same description has already existed then the patent will not be granted, therefore anything that has been patented would have to be 'developed' or 'invented' in order to be granted and sealed.

They may have spent many hours and alot of money developing that particular gene, and a patent would be there to protect their interests (good or bad).

I don't necessarly agree with that but that is how it is!

"When the power of love overcomes the love of power, then the world will see peace." - 'Jimi' Hendrix

[pirana 0]

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They may have spent many hours and alot of money developing that particular gene, and a patent would be there to protect their interests (good or bad).

I don't necessarly agree with that but that is how it is!

That is just it though; they developed nothing, they are just reading the chromosone. IMO, all they've really done is describe something that is naturally occuring; and quite common at that.

I could see if they developed a fix, a gene patch and the tools for implementation or something like that.

" . . . the lust for power can be just as completely satisfied by suggesting people into loving their servitude as by flogging them and kicking them into obedience." -- Aldous Huxley

[jakee 1,274]

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They may have spent many hours and alot of money developing that particular gene, and a patent would be there to protect their interests (good or bad).

They don't develop the gene, the gene exists in nature. They just happened to be the first people to sequence it.

IMO patenting of gene's is absurd, unethical, likely to hinder progress in research and antithetical to what the patent system exists to do.

Do you want to have an ideagasm?

[rhys 0]

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That is just it though; they developed nothing, they are just reading the chromosone. IMO, all they've really done is describe something that is naturally occuring; and quite common at that.

then the patent should be revoked, prior art is prior art.

if they didn't develop or invent anything then no patent can be granted.

"When the power of love overcomes the love of power, then the world will see peace." - 'Jimi' Hendrix

[pirana 0]

So anybody know what it is about patent law that made this acceptable? The article only alluded to this with no further explanation.

" . . . the lust for power can be just as completely satisfied by suggesting people into loving their servitude as by flogging them and kicking them into obedience." -- Aldous Huxley

[jakee 1,274]

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So anybody know what it is about patent law that made this acceptable? The article only alluded to this with no further explanation.

I'm happy to be corrected on this, but my basic understanding is that patent law actually shouldn't allow this to happen, but the US Patent Office is broken.

Do you want to have an ideagasm?

[riddler 0]

Capitalism at it's finest. IIRC, this started as the U.S. government's attempt to get the human genome mapped. The research to do this was costly and time-consuming. The government figured if they would allow researchers/universities/et al to patent the genes, it would inspire them to map the human genome at their own cost, rather than waiting for government research grants. I inferred that the researchers that own the patents get a portion of the proceeds from any gene therapies when they come later, but that was just a guess. Also, I think my source of this information was a television show, like 20/20, so I don't know if it's true or not.

http://www.ornl.gov/sci/techresources/Human_Genome/elsi/patents.shtml

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The argument is that postinvention development costs typically far exceed preinvention research outlays, and firms are unwilling to make this substantial investment without protection from competition.

Although most of that page is about how patents allow sharing of information, while still protecting the investment of the researchers. It's all about money.

Edit to add - I doubt very much that international patents will apply.

Trapped on the surface of a sphere. XKCD

[MakeItHappen 15]

Watch this video.
It talks about how patenting a gene came about and even mentions the patented breast cancer gene.
Not only can you patent a gene, the patent also allows you to collect royalties on descendant generations that have the gene.

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Make It Happen
Parachute History
DiveMaker

[TomAiello 25]

To get even more confused, check out Moore v. UC Regents.

-- Tom Aiello

[email protected]
SnakeRiverBASE.com

[GeorgiaDon 340]

I heard that story this morning, on Good Morning America, and was really surprised. I have a couple of patents on plant natural products, but my experience was that you can patent an application of a natural product but not the natural product itself (since it was "invented" by Nature). I recall that in the early days of the Human Genome project Craig Ventor's company (and maybe others) were patenting every bit of DNA sequence, but I thought the courts had thrown out those patents as nothing had actually been invented. It seems I was mistaken about that, as apparently about 20% of the genes in the human genome have been patented.

The story today (http://www.genomeweb.com/dxpgx/aclu-files-suit-against-myriad-over-brca-patents) is about a lawsuit filed against Myriad Genetics, who hold the patent on two major genes (BRCA1 and BRCA2) involved in breast cancer. They market a test to determine if a patient has any of several known mutations that increase risk of breast (and also ovarian) cancer. The test is very expensive ($3,000); from a technical perspective I'm sure I could generate the same data for a lot less than that, but that wouldn't include research and development costs. The problem seems to be that Myriad is using the patent to prevent anyone else from developing a different, competing test. With only one test available there is no way to get a "second opinion" on your cancer risk. They are also allegedly stifling research on the two genes. As an example of the consequence of that, the existing data applies almost entirely to Caucasian women, so no-one knows how good the test results are for any other ethnic group. You could be "cleared" of risk by the test, but that result wouldn't mean much if the mutations that are common in, say, Asian women are different from the specific mutations covered in the test.

I think it's outrageous that anyone could hold a patent on a gene. I have no problem with patenting a diagnostic test, or a treatment to fix a mutation that causes a defective protein, but gene itself and the basic information about the nucleotide sequence can't be invented and it shouldn't be the property of any individual or company.

Don

_____________________________________
Tolerance is the cost we must pay for our adventure in liberty. (Dworkin, 1996)
“Education is not filling a bucket, but lighting a fire.” (Yeats)

[GeorgiaDon 340]

That seems very similar to the story of HeLa cells. They are a cell line developed from a cervical cancer tumor removed from a woman named Henrietta Lacks. It proved to be a very useful cell line for cancer research and is now grown in thousands of labs around the world. Ms Lacks died in 1951, but her cells (or a cell line derived from them, which is not exactly the same thing) are still going strong; in fact if you added them all up they would amount to several hundred times the number of cells in a single person, so in a sense she has been reproducing very efficiently.

In another thread, some people are arguing that a fertilized egg should have all the rights of a person, because it contains a full complement of human DNA. I wonder if that reasoning would lead to the conclusion that Ms Lacks, or Mr Moore, never really died and their "soul" is now somehow inhabiting tissue culture flasks around the world.

Don

_____________________________________
Tolerance is the cost we must pay for our adventure in liberty. (Dworkin, 1996)
“Education is not filling a bucket, but lighting a fire.” (Yeats)

[quade 3]

Seems to me that if you map the genome that shouldn't be Patentable, but it SHOULD DEFINITELY be Copyrightable.

If you don't understand the difference, then you probably don't understand what I'm talking about.

A Patent is supposed to be about physical objects, inventions and processes. I don't see how you can Patent a gene any more than you can Patent a lump of coal.

A Copyright, on the other hand, covers printed material or digital representations thereof. To Copyright your "map" of a gene would be exactly the same as Copyrighting your drawing a map of the state of Iowa. No, you can't Copyright the overall shape, be you certainly can lay claim to the way it's presented.

That said, something created new like splicing glowing bits into a pig gene, ok, that should absolutely be Patentable.

quade -
The World's Most Boring Skydiver

[SpeedRacer 1]

God should sue them all.

Speed Racer
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[pirana 0]

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God should sue them all.

Who would act as judge?

" . . . the lust for power can be just as completely satisfied by suggesting people into loving their servitude as by flogging them and kicking them into obedience." -- Aldous Huxley

[shropshire 0]

No idea, but the devil should be an advocate.

(.)Y(.)
Chivalry is not dead; it only sleeps for want of work to do. - Jerome K Jerome

[jcd11235 0]

If Copernicus were still alive, he'd be kicking himself for not patenting the concept of Earth revolving around the sun. Newton could have patented motion.

Math tutoring available. Only $6! per hour! First lesson: Factorials!

[jcd11235 0]

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Seems to me that if you map the genome that shouldn't be Patentable, but it SHOULD DEFINITELY be Copyrightable.

If you don't understand the difference, then you probably don't understand what I'm talking about.

A Patent is supposed to be about physical objects, inventions and processes. I don't see how you can Patent a gene any more than you can Patent a lump of coal.

A Copyright, on the other hand, covers printed material or digital representations thereof. To Copyright your "map" of a gene would be exactly the same as Copyrighting your drawing a map of the state of Iowa. No, you can't Copyright the overall shape, be you certainly can lay claim to the way it's presented.

I disagree. I understand the differences between patents and copyrights, but mapping the genome is not the same as creating an original work, so it shouldn't be copyrightable. Writing a book containing the map of the genome and some stories about how it was mapped, OTOH, would be copyrightable.

Math tutoring available. Only $6! per hour! First lesson: Factorials!

[nerdgirl 0]

Thanks for writing about HeLa cells. I'm not sure if the value of HeLa cells can be underestimated (especially in comparison to how little they were initally valued).

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In another thread, some people are arguing that a fertilized egg should have all the rights of a person, because it contains a full complement of human DNA. I wonder if that reasoning would lead to the conclusion that Ms Lacks, or Mr Moore, never really died and their "soul" is now somehow inhabiting tissue culture flasks around the world.

I think that's a really fascinating question. Until we had technology. it was comparatively easy -- screaming, crying being = human. How much DNA and what does that DNA need to be doing in order to qualify as "human"? As you point out, those cells are reproducing. They're immortal. That's sort of a question of what are the minimal requirements to be called human, because I would not consider HeLa cells "human."

Otoh, if we start changing human DNA or augmenting our capabilities, by whatever means. And I'm mostly thinking brain-computer-interface & augmented prosthetics here, altho' one can imagine other technological means of varying technical robustness. How far to we go til we are no longer being "human"? Where does one become trans-human?

aaah ... such things need powerpoint briefs and beer to truly be appreciated -- the former for pictures and the latter, for the heck of it.

/Marg

Act as if everything you do matters, while laughing at yourself for thinking anything you do matters.
Tibetan Buddhist saying

[MakeItHappen 15]

BCA is partnering with the ACLU in a lawsuit against Myriad Genetics. To read more, visit www.bcaction.org.

See also http://en.wikipedia.org/wiki/Diamond_v._Chakrabarty
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=447&invol=303

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Make It Happen
Parachute History
DiveMaker

[SpeedRacer 1]

Interesting story. I didn't know about that, and I've got some HeLa cells growing in an incubator right now.

Speed Racer
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[quade 3]

Quote

Quote

Seems to me that if you map the genome that shouldn't be Patentable, but it SHOULD DEFINITELY be Copyrightable.

If you don't understand the difference, then you probably don't understand what I'm talking about.

A Patent is supposed to be about physical objects, inventions and processes. I don't see how you can Patent a gene any more than you can Patent a lump of coal.

A Copyright, on the other hand, covers printed material or digital representations thereof. To Copyright your "map" of a gene would be exactly the same as Copyrighting your drawing a map of the state of Iowa. No, you can't Copyright the overall shape, be you certainly can lay claim to the way it's presented.

I disagree. I understand the differences between patents and copyrights, but mapping the genome is not the same as creating an original work, so it shouldn't be copyrightable. Writing a book containing the map of the genome and some stories about how it was mapped, OTOH, would be copyrightable.

I absolutely guarantee Rand McNally Copyrights all of its maps of the planet. I don't see any difference. Both are depictions in fixed form and it's the information in the depiction that is what is of value.

quade -
The World's Most Boring Skydiver

[jcd11235 0]

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I absolutely guarantee Rand McNally Copyrights all of its maps of the planet. I don't see any difference. Both are depictions in fixed form and it's the information in the depiction that is what is of value.

I see a few differences. Rand McNally has to pick and choose the features they want on their map. They may choose different features than, for example, Kroll Map Company or Google. They can opt for different scales, different symbols in the legend, etc.

OTOH, mapping a particular genome is a bit more concrete. As I understand it, there aren't multiple ways to map a particular genome; it's more like graphing a complex (in the colloquial sense of the word complex, not the mathematical sense) equation than mapping a geographical area.

(Note: It might be that I have mapping and sequencing confused, in which case I would withdraw my disagreement.)

Math tutoring available. Only $6! per hour! First lesson: Factorials!

[riddler 0]

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I disagree. I understand the differences between patents and copyrights, but mapping the genome is not the same as creating an original work, so it shouldn't be copyrightable. Writing a book containing the map of the genome and some stories about how it was mapped, OTOH, would be copyrightable.

I agree with you. If you map out the genes, it seems your copy of the presentation should be copyright-able, but not the actual sequence. After all, a history writer cannot copyright actual historical events, but can copyright a history of them that he/she has compiled. Human DNA exist in nature, and that should not be copyrightable or patentable. But if you want to sequence (or create a copy) of a human gene, that process should be patentable.

If it was either/or, I would side with patents over copyrights. The reason is that a patent will expire in 20 years, so eventually, they'll be back in public domain. Copyrights have proven good, effectively, forever (reference Supreme court rulings about an 80-year-old mouse cartoon). Lesser of evils to go with the patent.

Trapped on the surface of a sphere. XKCD