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(The New York Times)   Supreme Court to decide if one day you could be sued by a patent troll who argues your DNA infringes on their client's gene patents   (nytimes.com) divider line 11
    More: Interesting, Look at a Gene Issue, DNA, supreme courts, gene patents, friend of the courts, Myriad Genetics, genes  
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3620 clicks; posted to Geek » on 03 Dec 2012 at 7:11 PM (2 years ago)   |  Favorite    |   share:  Share on Twitter share via Email Share on Facebook   more»



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2012-12-03 06:08:16 PM  
3 votes:

cman: Ok, I am confused by this (GASP AINT THAT A SHOCKER!)

I looked at the WP entry on the lawsuit and still am having some issues processing it.

Are they claiming that the test to find a certain gene is their patent? Or, are they claiming the gene is the patent itself? I cannot make heads or tales of this damn thing


The gene is the patent itself. The specific gene here is BRCA1. Scientists figured out long ago that if a woman had an allele of BRCA1, they would be more likely to have breast cancer (thus the name BRCA, duh). They then figured out what exactly the DNA sequence of the gene was and patented that.

Link There is probably a better link elsewhere.

Here is the abstract:

Specifically, the present invention relates to methods and materials used to isolate and detect a human breast and ovarian cancer predisposing gene (BRCA1), some mutant alleles of which cause susceptibility to cancer, in particular breast and ovarian cancer. More specifically, the invention relates to germline mutations in the BRCA1 gene and their use in the diagnosis of predisposition to breast and ovarian cancer. The present invention further relates to somatic mutations in the BRCA1 gene in human breast and ovarian cancer and their use in the diagnosis and prognosis of human breast and ovarian cancer. Additionally, the invention relates to somatic mutations in the BRCA1 gene in other human cancers and their use in the diagnosis and prognosis of human cancers. The invention also relates to the therapy of human cancers which have a mutation in the BRCA1 gene, including gene therapy, protein replacement therapy and protein mimetics. The invention further relates to the screening of drugs for cancer therapy. Finally, the invention relates to the screening of the BRCA1 gene for mutations, which are useful for diagnosing the predisposition to breast and ovarian cancer.

The translation is: "we figured out this gene might possibly be important so anyone who ever uses this gene for anything ever in the future is infringing on our patent." No drugs were available to target this gene, no tests were available to quickly screen for the mutation, not all of the mutations were mapped, no treatments utilizing anything about this gene were created, no one had any idea how mutations in this gene correlated with the severity of breast cancer, no one knew why this gene was correlated with cancer but figuring any of that stuff out infringes on their patent.

These people are real assholes and there is no way this patent should stand up in court. We figured out the DNA sequence of a gene, therefore if you find a new chemical that cures breast cancer that happens to inhibit the protein created from this DNA sequence you infringed on our work. Assholes.
2012-12-03 03:36:11 PM  
2 votes:
The idea that one can patent life is astronomically stupid and extremely dangerous in my opinion.

I see this playing out in the future where a potential lifesaving cancer, or AIDS drug will be held up in the courts for years because at some point, some research scientist maybe, perhaps used some genetic sequence that is the same or similar to some other genetic sequence to test the drug against and now the "owner"/company that owns said genetic sequence wants their share of the profits.

Think I am being weird or off in left field here? Look at Monsanto and how they are suing farmers out of existence because of cross pollination and their genetic sequence ending up in non-Monsanto based crops...and we are just talking about corn, wheat and soy here, not human life!
2012-12-04 12:17:58 AM  
1 votes:
So the patented product IS man-made and not the original material taken from the patient. But each copy of the original material in the product is identical to the original material.

Myriad doesn't own patents on the processes used to create such products. But it claims a patent on a product that contains copies of this particular gene sequence.

This is like saying, "Hey, I painted a copy of the Mona Lisa using MY OWN PAINT, so nobody can paint another without paying me!"

Throw the bums out.
2012-12-03 08:22:15 PM  
1 votes:

Theaetetus: Arguably, they could have. Mind you, only isolated quarks would infringe their patent, so it's not as if they could run out and slap everyone with suits.


If I remove a living human brain and put it on life support, can I patent it?
2012-12-03 08:20:54 PM  
1 votes:

Kinek: Magorn: Theaetetus: pheelix: Small time farmers get their ass sued off when they use seed produced by their own crops which thanks to the wind and honeybees were pollinated by the genetically modified crop in the field across the street the genetically modified crop which they've carefully collected and isolated by destroying all of the non-modified crop it was mixed with.

FTFY. There are some reasonable questions around the Monsanto suit, but its disingenuous to claim that bees and the wind were responsible for the field of 100% Monsanto canola.

No, but then the discovery that plants can spontaneously "swap" genes through the air raises a question as to whether that actually WAS Monsanto Canola or just had some of the smae genetic markers

The Max Planck Institute. Now that brings back memories.

Reading carefully though, that's CHLOROPLAST swap. Not genomic. It's a little different. What you might be looking for is the recent publications on horizontal gene transfer due to third parties in plants. Which occur more often than we originally guessed. Again though, probably not in this case. You'd have to pick up an awfully specific part of the genome to get what happened to have happened. As much as I hate to admit it, Thaetus is right. There are a lot of dirty hands in the Monsanto cases, and not all of them are corporate.


Now this is purely hypothetical, but this is how we lawyers think. Suppose the USC rules in favor of the patent. Further suppose that someone "patents" genetic variations for increased strength, intelligence, more resistance to disease, etc (IIRC there's a genetic variation found in rural England that gives natural immunity to some nasty plagues), and further suppose you could create "designer" babies by buying these genes from the patent holder and injecting them into a fetus' genome shortly after conception.

Now that kid grows up, is interested in having kids of his own. Based on those Monsanto case precedents, would it be reasonable/legal to require the child to obtain a license from the patent holder, or at least pay them royalties for each kid they have?
2012-12-03 07:47:06 PM  
1 votes:

Theaetetus: pheelix: Small time farmers get their ass sued off when they use seed produced by their own crops which thanks to the wind and honeybees were pollinated by the genetically modified crop in the field across the street the genetically modified crop which they've carefully collected and isolated by destroying all of the non-modified crop it was mixed with.

FTFY. There are some reasonable questions around the Monsanto suit, but its disingenuous to claim that bees and the wind were responsible for the field of 100% Monsanto canola.


No, but then the discovery that plants can spontaneously "swap" genes through the air raises a question as to whether that actually WAS Monsanto Canola or just had some of the smae genetic markers
2012-12-03 07:46:58 PM  
1 votes:

Theaetetus: Magorn: They argue that without that exclusivity, they lose the economic incentive to do further research. Which I understand on one level, but on the other most of the genes testing companies have been outgrowth of grant-funded research at public universities, and many of the companies that then patent the discoveries are attempts to monetize that research by the lead investigator and/or the university, so the argument isn't as strong as they claim

It's still a strong claim... Public (and private) research universities make a ton of their budgets from patent licensing. For example, MIT made $147.5 million in 2010 from its licensing activities, or a little over a fifth of its research budget.


But a vast majority of them don't make that money back. Pointing out the shining star doesn't counter the fact that much of these research grants are NSF, NIH, DOE funded. Publically funded. And while there are strict rules on what you can and cannot do with that money, facilities that seem to be producing private results are often paid for by public money.

Additionally

They want to sue cancer test manufacturers who use Myriad's research without paying royalties.

This presents a giant problem for validation. And for anyone who is working around this area. The problem here is that what Myriad seems to be patenting a (putative) fact. BRCA1 and BRCA2 are in some allelic states, tied to breast cancer. Currently, there's an issue with trying to verify this since Myriad does not like people poking around in the gene set. So they'll either set royalties high, or otherwise obfuscate the field. Additionally, they stagnate the field. A professor I knew who was trying to predict cancer incidence by Machine learning had to deliberately leave out BRCA1 and BRCA2. I didn't actually notice this when he was giving the seminar, but when looking at his geneset, he'd left them both out. I asked, and he said 'I can't include them for legal reasons'.

This is why Prometheus has left me hopeful. This is essentially a diagnostic test, and should be treated as such.
2012-12-03 07:43:30 PM  
1 votes:

Theaetetus: Magorn: They argue that without that exclusivity, they lose the economic incentive to do further research. Which I understand on one level, but on the other most of the genes testing companies have been outgrowth of grant-funded research at public universities, and many of the companies that then patent the discoveries are attempts to monetize that research by the lead investigator and/or the university, so the argument isn't as strong as they claim

It's still a strong claim... Public (and private) research universities make a ton of their budgets from patent licensing. For example, MIT made $147.5 million in 2010 from its licensing activities, or a little over a fifth of its research budget.


Which is the problem, actually. Bell Labs is long gone and no one in private industry funds "pure" (no obvious commercial implications) research of the kind that gave us such marvels as the LASER (yes it is technically and acronym) but we were told that Universities would pick up the slack in that dept-and they did, for a while. Then a few UCLA and MIT professors started making fortunes off certain discoveries and every third CS prof was making millions founding dotcoms. Suddenly the universities decided they wanted "in" and forced revenue sharing agreements on all their profs. Now, research simply doesn't get funded that doesn't show immediate commercial potential as Universities have basically become corporations all but in name.

Personally I'd kick in and extra $50 per person per year in taxes (about $15 billion/year) and like to see us publicly fund genetic research, manufacture "orphan" drugs and vaccines, and do research on botanical-based drug, with the caveat that anything so discovered gets released into the public domain
2012-12-03 07:35:27 PM  
1 votes:
Small time farmers get their ass sued off when they use seed produced by their own crops which thanks to the wind and honeybees were pollinated by the genetically modified crop in the field across the street. One day somebody's going to genetically modify a human using a patented gene. That human will reproduce, and during the course of the pregnancy the company that holds the patent on the modified gene will more than likely sue in order to force the parents to either terminate the pregnancy, pay up, or award the plaintiffs custody of the child. After all, they'll have legal precedent on their side.
2012-12-03 06:58:04 PM  
1 votes:

cman: Ok, I am confused by this (GASP AINT THAT A SHOCKER!)

I looked at the WP entry on the lawsuit and still am having some issues processing it.

Are they claiming that the test to find a certain gene is their patent? Or, are they claiming the gene is the patent itself? I cannot make heads or tales of this damn thing


the issue is that once they identify and isolate a particular gene and it's function anyone who can read your DNA can do a test to see if you have it. The company wants to "patent" the gene so diagnostic tests would be proprietary and only they could sell them. They argue that without that exclusivity, they lose the economic incentive to do further research. Which I understand on one level, but on the other most of the genes testing companies have been outgrowth of grant-funded research at public universities, and many of the companies that then patent the discoveries are attempts to monetize that research by the lead investigator and/or the university, so the argument isn't as strong as they claim
2012-12-03 04:06:57 PM  
1 votes:

Snarfangel: What do you mean, Monsanto says I can't have sex? And why am I classified as "Roundup Ready?"


Sorry pal, you should have read the fine print on your birth certificate that prohibits "seed sharing or seed saving". Nothing we can do about it now
 
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