Genes are not Patentable

From yesterday's New York Times: Judge Invalidates Human Gene PatentThe ruling can be found here: Association for Molecular Pathology, et al. vs. United States Patent and Trademark Office, et al.The meat of the ruling begins on page 96 which quotes Section 101 of Title 35 of the United States Code: The ruling notes immediately after: To my mind genes are *not* patentable, but US patent law say that "Whoever...discovers any...composition of matter...may obtain a patent..."Doesn't that cover just about everything? For example, doesn't that mean that last year's discoverers of the new element Copernicium (atomic number 112) can patent it? And doesn't it mean that any discoverer of a sequence of DNA hitherto unknown can patent it?I've only just begun reading the ruling, but I can't wait to see how the judge reasons his way to the conclusion that genes are not patentable. I'm glad that he did, I'm just worried it won't hold up on appeal.--Percy

Yes, that's my opinion, too. It's a pity that the patent system has gone the other way. I am glad to see this ruling. I hope it is upheld on appeal. Perhaps we can get some sanity back into the patent system."Whoever invents or discovers any new and useful process, machine,..."The thing about genes, is that if they are already present in nature then they are not new. They might be newly discovered, but that does not make them new.

I think the important bit is "new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof,". Patents are given for processes, not naturally occuring processes. So you wouldn't be able to patent a naturally occuring element such as Copernicium, but you would be able to patent a process that, for instance, uses Copernicium in a special formulation of radiation-proof paint.For genes, you would not be able to patent naturally occuring genes. However, you could patent processes using those genes. For example, mass production of a gene product used in medical treatment could be patented. Also, modification of that gene product could be patented which many companies have been doing for years (e.g. a thermostable mutant of a naturally occuring protein). Companies have also patented plasmid constructs for different applications in molecular biological research. These plasmids contain naturally occuring genes (e.g. antibiotic resistance genes, jellyfish green fluorescent protein, the lac operon from E. coli), but it is the combination of these genes, the features of the plasmids, and its usefulness in research that make it patentable.

The background story on this is that some biotech companies have been seeking the genes responsible for some genetics diseases and predilections so that they can develop tests for them, then patenting the genes they find (and the tests, too, separate patents, though). The patent means that anyone wanting to research these genes has to pay a license fee to the patent holder. Academics have received cease and desist orders on their research from biotech company lawyers.--Percy

I have only briefly scanned the decision, but I did find this to be interesting:

quote:

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Because the claimed isolated DNA is not markedly different from native DNA as it exists in nature, it constitutes unpatentable subject matter under 35 U.S.C coda 101.
(p. 135)

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So discovering any DNA as it exists in nature is not patentable, or so it would seem. It only becomes patentable once it is modified into an unnatural (i.e. artificial) state. At least that is how I read it.

I'm having some problem, I can't get the opinion to come up, so I haven't read it yet. Also, I know very little about patent law, so can't speak with much authority in this area.That being said, so far as I can tell, it sounds like the decision is well-founded. My general understanding is that you cannot patent anything naturally occurring, as Taq said.I can see policy reasons both ways. If a company cannot protect its work for some period of time, there's less an incentive to do the work. On the minus side, according the NY Times article, courts were issuing injunctions against research institutions based on the patent, and the public interest in allowing unfettered research into breast cancer is obvious.

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Ridicule is the only weapon which can be used against unintelligible propositions. Ideas must be distinct before reason can act upon them; and no man ever had a distinct idea of the trinity. It is the mere Abracadabra of the mountebanks calling themselves the priests of Jesus. -- Thomas JeffersonFor we know that our patchwork heritage is a strength, not a weakness. We are a nation of Christians and Muslims, Jews and Hindus -- and non-believers. -- Barack ObamaWe see monsters where science shows us windmills. -- Phat

Well if one could simply patent stuff found in nature I would patent bumble bees and charge every country on the planet for my services...