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Supreme Court to Consider Whether Patents on Genes Are Valid; Verdict post 30

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04-17-2013, 02:35 PM
  #26
Fugu
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Quote:
Originally Posted by Dado View Post
A "patent" on a sequence of base pairs is unlikely to be either useful or valuable without also having methods to create that sequence artificially under controlled conditions, and, presumably, a method to insert this manufactured sequence into an existing sequence. And to me those seem like very patentable methods.

In my response to Danja, I actually indicated as much. Where he has made the distinction is in the wild type genes (naturally occurring, what you and I are walking around with in our cells). If you scan the human genome, and find that gene X produces something of interest, or that it's a marker for a disease (to be used in diagnostics)-- do you now have the right to own that gene, from a patent perspective?

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04-17-2013, 03:19 PM
  #27
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Originally Posted by Fugu View Post
In my response to Danja, I actually indicated as much.
Yeah, I don't think we're all that far apart, to be honest. As always, the devil will be in the implementation details. We had a case in Canada where a farmer got bent over backwards because Monsanto genes ended up in his field after "genetic material" was carried over by the wind from a neighbouring farm. That's ridiculous.

Quote:
If you scan the human genome, and find that gene X produces something of interest, or that it's a marker for a disease (to be used in diagnostics)-- do you now have the right to own that gene, from a patent perspective?
I don't think it matters much. Even if you have that patent, without the ability to do something with that gene (in the sense we both suggested), it's not likely to do you much good.

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04-17-2013, 11:57 PM
  #28
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Originally Posted by Dado View Post
We had a case in Canada where a farmer got bent over backwards because Monsanto genes ended up in his field after "genetic material" was carried over by the wind from a neighbouring farm. That's ridiculous.
I'm no fan of Monsanto but that's a very "selective" view of what happened. As per Wikipedia, the farmer was not sued for having the roundup-ready canola accidentally growing in his field. He was sued for applying roundup, finding canola that resisted the herbicide, harvesting the seeds, and planting them the following year. That's not nearly as clear cut as you make it seem. It's akin to finding an illicit Blu Ray rip of The Hobbit on your hard drive and instead of deleting it or keeping it to yourself, selling it for profit.

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Originally Posted by Dado View Post
I don't think it matters much. Even if you have that patent, without the ability to do something with that gene (in the sense we both suggested), it's not likely to do you much good.
I think it matters; the patent would exclude other researchers and companies from making use of that gene. That's going to be a big issue in 5 to 15 years when full genome sequencing becomes routine. How would you feel about critical genetic information being withheld from you because a company owns the right to a particular gene and requires that you pay for their own test for that one particular stretch of DNA?

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04-18-2013, 09:47 AM
  #29
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from Section 101
35 U.S.C. 101 35 U.S.C. 101 Inventions patentable.

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Examples of subject matter not patentable under the statute follow:
A. Printed Matter
For example, a mere arrangement of printed matter, though seemingly a "manufacture," is rejected as not being within the statutory classes. See In re Miller, 418 F.2d 1392, 164 USPQ 46 (CCPA 1969); Ex parte Gwinn, 112 USPQ 439 (Bd. App. 1955); and In re Jones, 373 F.2d 1007, 153 USPQ 77 (CCPA 1967).
B. Naturally Occurring Article
Similarly, a thing occurring in nature, which is substantially unaltered, is not a "manufacture." A shrimp with the head and digestive tract removed is an example. Ex parte Grayson, 51 USPQ 413 (Bd. App. 1941).
C. Scientific Principle
A scientific principle, divorced from any tangible structure, can be rejected as not within the statutory classes. O"Reilly v. Morse, 56 U.S. (15 How.) 62 (1854).
This subject matter is further limited by the Atomic Energy Act explained in MPEP 706.03(b).
DNA, genes, genomes, et al., would be naturally occurring to me. Thus if Carghill takes corn and cross-pollinates time and time again to create a unique strain of corn, fine - they have significantly altered the naturally occurring original and cannot just claim they now own corn.

Same here. You cannot simply map, decode, identify or whatever you say you've done that has not been done before and lay claim to now the rights associated with that naturally occurring subject matter. Like others have pointed out, you can certainly own the rights on the method of decoding, mapping, storing data about, and so forth, but you can't just own genes and markers as they exist without significant manipulation beyond their original state.

Further more, with all the complexities around the various forms, how can you be sure your alteration hasn't already existed naturally? If you want to patent how to give everyone blue eyes, fine but you can't own the rights to having blue eyes.

As for the case central to this argument, the company is trying to block competition for testing on two genes. They have not altered the genes and so far as I can tell, they are not even trying to block their specific manner of testing, just locking up the entire gene completely to prohibit competition. I cannot see how the court will support this position.

Quote:
The case, which will come before the court on Monday, involves patents held by Myriad Genetics on two human genes, which, when mutated, give a woman a high risk of getting breast or ovarian cancer. The patents give Myriad a monopoly on testing for these mutations, a highly lucrative business.
They should have filed the patents to protect the process for testing, not on the identification of the genes - either in their normal state or mutated state. This was a bad patenting decision. This would be like trying to patent telling whether it's sunny outside. You can't prevent people from observing nature. You can patent the window design you look through to tell though.

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Old
06-14-2013, 12:58 AM
  #30
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http://news.discovery.com/human/heal...mkcpgn=rssnws1

Quote:
Naturally occurring human gene sequences cannot be patented but artificially copied and replicated DNA can be, the U.S. Supreme Court ruled on Thursday.

"A naturally occurring DNA segment is a product of nature and not patent eligible merely because it has been isolated but cDNA is patent eligible because it is not naturally occurring," the court ruled.

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Old
06-17-2013, 04:26 PM
  #31
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*validated fist pump for previous post*

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