You Can’t Patent Mother Nature

(10 am. – promoted by ek hornbeck)

Cross posted from The Stars Hollow Gazette

In a rare unanimous decision, the US Supreme Court ruled that human genes cannot be patented:

The case, AMP v. Myriad Genetics, revolved around Utah corporation Myriad Genetics’ exclusive patents on the BRCA1 and BRCA2 genes, which, when mutated, lead to a very high risk of breast and ovarian cancer. Because Myriad was the first to identify the BRCA genes, it patented them, charged exorbitant prices for BRCA testing, and then aggressively prevented any other labs from offering the same test. In 2009, a coalition of plaintiffs including the ACLU, Breast Cancer Action and a number of scientific organizations, researchers and patients sued Myriad, claiming that it had no legal right to hold patents on the BRCA genes.

In a majority decision written by Clarence Thomas, the court affirmed the plaintiffs’ claim that because DNA is naturally occurring, it “lie(s) beyond the domain of patent protection.” In so deciding, the court effectively reversed decades worth of policy by the US Patent and Trade Office, which has granted thousands of gene patents, many of which should now be rendered invalid.

The Court refuted Myriad’s claim that because it had put a lot of time and money into locating the gene, that it therefore deserved a patent: “extensive effort alone is insufficient” to make something patent-worthy. Basically, just because you tried really hard doesn’t mean that you deserve a multi-billion dollar legal monopoly.

This is great news for women, men, doctors, scientists and the world in the fight against breast and ovarian cancer. In a New York Times article about the impact of the ruling, other research companies said they would begin offering genetic testing which would bring down the cost and availability of the test, as well as, other tests held by patents:

Some experts say that other genetic tests that are exclusively controlled by a patent holder include the test for spinal muscular atrophy and the test for an inherited form of deafness.

Dr. (Sherri) Bale of GeneDx said the deafness gene also caused a skin disease. Her company is allowed to test for mutations that cause the skin disease, but if it discovers a mutation for hearing loss, it cannot tell the doctor. Instead, a new blood sample has to be drawn and sent to Athena Diagnostics, which controls the testing for the deafness gene. Dr. Bale said the court’s decision should eliminate the need for that arrangement.

It is often said that patents cover 4,000 human genes, or about 20 percent of all human genes, meaning the decision could have a large impact.

Amy Goodman and Juan Gonzalez of Democracy Now, in a discussion of the ruling, were joined by Judge Robert Sweet, the senior federal judge for the Southern District of New York who originally invalidated Myriad Genetics’ patents; Lisbeth Ceriani, one of the plaintiffs in the ACLU lawsuit. In May 2008, she was diagnosed with an aggressive form of breast cancer; and Sandra Park, a senior attorney with the ACLU’s Women’s Rights Project and a lead counsel on the case.

“With the ruling today, we fully expect much better access and much better options for patients, as well as for scientists who want to look at different parts of the genome,” Park says. “They no longer now need to deal with patents on the thousands of genes on our genome when they’re engaging in their scientific work.”

Transcript can be read here


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  1. TMC
  2. TMC

    more available and affordable saves lives. These companies would like to patent “life” if they could.

    This was a sole patent on a human gene. This is the heart of the ruling:

    “It is undisputed that Myriad did not create or alter any of the genetic information encoded in the BRCA1 and BRCA2 genes. The location and order of the nucleotides existed in nature before Myriad found them.  Nor did Myriad create or alter the genetic structure of DNA.” [..]

    As Justice Thomas commented further: “To be sure, it found an important and useful gene, but separating that gene from its surrounding genetic material is not an act of invention.  Groundbreaking, innovative, or even brilliant discovery does not by itself satisfy the [patent law] inquiry.”

    The Court did not rule on Complimetary DNA. cDNA, which is specifically entitled to a composition patent, but noted that the federal government had raised other objections under patent law to that phenomenon.

  3. terryhallinan

    In case anyone has any doubt, I am well aware that MO is shared by few.  

    But I think that very fact tends to be support that I am probably right.

    When everybody from left [actual left] to furthest right agrees on something, it is almost always wrong.  And this time the entire basis of the claim that anyone was patenting people or their parts is pure bull.

    There were nonsensical patent applications for “junk DNA” based on nothing more than finding such DNA could be located but without any notion of what it was.  There have long been whole organisms patented from pretty roses to hornless cattle that were created by the applicant but no such persons.  People complaining they aren’t in full charge of their own DNA are full of it.

    The people who have been robbed are the inventors and researchers.  The usual plunderers and thieves have been rewarded.  The end result will be more junk medicine and less original research.

    Not that I have a strong opinion one way or another. :-)

    Best,  Terry

  4. terryhallinan

    A zoology professor told his class long ago that he had an angry mother in his office when he had told the class that two blue-eyed parents can’t have a brown-eyed daughter.

    The professor said the mother admitted the daughter was adopted.  Then the wise old prof said he always said it couldn’t happen barring mutation.

    The professor’s funny joke was a lie. He was too ignorant to know it but it can happen.  Up to 9 genes have been found to determine eye color beyond the legendary blue and brown genes.  

    But textbooks and professors still stick with the old saw because they know no better.

    The Court did not rule on Complimetary DNA. cDNA, which is specifically entitled to a composition patent

    Uh huh.  Tell me about it.  Which DNA is entitled and which is not?  

    We even have idiots claiming DNA can distinguish imaginary black and white races, which leads to ghoulish fates for many Southern African albinos.

    No doubt there are surgeons whetting their scalpels for removing women’s breasts now that we know the absolute truth (almost) about some genes causing breast cancer just as we used to know for almost certain about the PSA screening test for prostate cancer.  

    Win some, lose some.

    Science will survive.  It has taken worse hits from dogma promulgated by the like of Clarence Thomas.

    Myriad Genetics will do fine BTW.  When you have the Supreme Court backing bad science, how can they miss?

    Best,  Terry

  5. TMC

    but there are arguments pro & con about patents.

    As for the BRCA1 and BRCA2 genes, the genes are mutations and uncommon. In people who carry these genes, there is a higher risk than in the general population that they will develop breast or ovarian cancer. The test is only offered to patients with a personal or family history, or who have specific types of breast cancer. It does not mean that every woman will opt for a double mastectomy but it will help her make an informed decision about her choices.

    Hopefully, very soon there will be similar reliable genetic testing for prostate cancer marking and detection. By not allowing one company to dominate the field makes it more likely that new tests for other inheritable diseases will be developed and be affordable.

    As for the ruling, I don’t think that they were wrong, nor do I think that this was bad science.

  6. terryhallinan

    And so why aren’t they offered when Clarence Thomas, indubitably a man who has expended much time studying sexual organs, says it’s best to get rid of patents on genes and stuff?

    My wife refused years ago to sign a consent form for a mastectomy, if cancer was found when she had a breast biopsy in her 30’s.  The surgeon was very, very angry.  A nurse whispered to my wife that my wife was a heroine to the nurses. Nobody had done that before.  The nurse had found a lump in her own breast and was too frightened to do anything about it.

    I was there when the surgeon and the anesthesiologist came out of the operating room.  When they spotted me, their deep frowns turned upside down.  I was not to know the doctor thought he had found cancer.  The lab said no but mistakes happen you know.

    J-Lo is a courageous woman [Warren Buffett acted as just an ignorant fool BTW when he swallowed a pack of disinformation whole] but there are many, many oncogenes and the statistics are dubious at best. It is not like Huntington’s in which a terrible disease will manifest itself in middle age with full certainty as best we can tell today when the very bad gene is discovered – if the lab is not in error.

    When “junk DNA” was patented, it was called junk because no one knew what to do with it.  Myriad patented a system for detecting an oncogene and now that is the way patents will be written so that Clarence Thomas can continue his studies without hindrance.

    When mice cured themselves of cancer (and sepsis and even glaucoma and a host of other diseases) with the “death switch” gene that produces a protein that can prolong life of mice or encourage cancer cells or pathogens to die, the discoverer didn’t patent a gene inherent in all plants and animals.  He did patent methods of utilizing his death switch gene and even some of those patents have probably expired because of the fright of such newness.  You can buy the protein produced today, should you wish, in recombinant form or perhaps even extracted from living things.  Here is one offering:

    Eukaryotic translation initiation factor 5A (eIF5A) is the only protein known to contain unusual amino acid formed by the action of deoxyhypusine synthase and deoxyhypusine hydroxylase using spermidine as the substrate. This protein was previously reported to be involved in the first step of peptide bond formation in translation; however more recent work implicates it as a universally conserved translation elongation factor. Modulation of eIF5A has been linked to proliferation and cancer. Recombinant human eIF5A protein was expressed in E. coli and purified by using conventional chromatography techniques.


    But it just isn’t the same in a vial or bottle as in a living organism.

    I have never to my knowledge convinced anyone of anything except to get my wife to tell a surgeon to shove his scalpel where the sun don’t shine if there isn’t some thought involved in matters.  I think that’s the first and last time she has heard a thing I said in a half century of marriage.

    Best,  Terry

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