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(USA Today) NewsFlash Human genes not susceptible to patent trolls   (usatoday.com ) divider line
    More: NewsFlash, non-practicing entity, Myriad Genetics, biotechnology, geneticists  
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4490 clicks; posted to Geek » on 13 Jun 2013 at 10:55 AM (3 years ago)   |   Favorite    |   share:  Share on Twitter share via Email Share on Facebook   more»


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2013-06-13 11:35:04 AM  

Teiritzamna: it represented an imbalance in protections for copyrighted works in the two biggest markets for those works


There's the rub.  We could just as easily have "corrected the imbalance" by SHORTENING the span.

How often does THAT happen?

/betting zero
 
2013-06-13 11:37:55 AM  
It was unanimous and Thomas wrote the opinion?

Someone get me the fainting couch.
 
2013-06-13 11:38:27 AM  
This will be corrected by the next corporate controlled congress. Damn activist judges.
 
2013-06-13 11:42:33 AM  
Wow. Unanimous common sense. In 2013.
 
2013-06-13 11:42:56 AM  

HotWingConspiracy: It was unanimous and Thomas wrote the opinion?

Someone get me the fainting couch.


Oh, don't worry; the voting-rights decision is still coming up and that'll be the 5-4 Republican ruling that brings us right back to the festering shiathole we've all gotten used to.
 
2013-06-13 11:45:08 AM  

Marcus Aurelius: Teiritzamna: it represented an imbalance in protections for copyrighted works in the two biggest markets for those works

There's the rub.  We could just as easily have "corrected the imbalance" by SHORTENING the span.

How often does THAT happen?

/betting zero


Well that would require changes in multiple European countries, so 1 we kinda lack jurisdiction there, two changing multiple laws is harder than changing one, and three the European conception of copyright is rather different, such that a tack down in term would be almost unthinkable there.
 
2013-06-13 11:46:40 AM  
okay, fine.  Patent trolls lose this round, but dont count out the gene gnomes.  they're a feisty bunch.
 
2013-06-13 11:47:25 AM  

Teiritzamna: dartben: Mickey Mouse enters the public domain in 2019, I believe. Look for a new copyright extension law in 2018.

humorously enough, they really don't need it:

the fact that a copyrightable character or design has fallen into the public domain should not preclude protection under the trademark laws so long as it is shown to have acquired independent trademark significance, identifying in some way the source or sponsorship of the goods.  Frederick Warne & Co. v. Book Sales, Inc.

trademark lasts forever and trust me that Disney has trademarked all the classic characters.


Yeah, but trademark doesn't prevent derivative works. If people want to write and sell fan fiction where Mickey mouse meets Tom Sawyer, he needs to be in the public domain.

It would be interesting to see what trumps what if it came to a legal battle between copyright allowing derivative works and trademark protections.
 
2013-06-13 11:49:09 AM  

dartben: Teiritzamna: dartben: Mickey Mouse enters the public domain in 2019, I believe. Look for a new copyright extension law in 2018.

humorously enough, they really don't need it:

the fact that a copyrightable character or design has fallen into the public domain should not preclude protection under the trademark laws so long as it is shown to have acquired independent trademark significance, identifying in some way the source or sponsorship of the goods.  Frederick Warne & Co. v. Book Sales, Inc.

trademark lasts forever and trust me that Disney has trademarked all the classic characters.

Yeah, but trademark doesn't prevent derivative works. If people want to write and sell fan fiction where Mickey mouse meets Tom Sawyer, he needs to be in the public domain.

It would be interesting to see what trumps what if it came to a legal battle between copyright allowing derivative works and trademark protections.


I should say trademark doesn't explicitly prevent derivative works.
 
2013-06-13 11:49:23 AM  

HazMatt: It is a string of DNA to be used in a brute force exploration for novel proteins. Seems like that has as much utility as one-click shopping or shiny rectangle with round corners.


Alas, under 101, this wouldn't count as substantial utility allowing grant of a patent:

"[A]n application must show that an invention is useful to the public as disclosed in its current form, not that it may prove useful at some future date after further research. Simply put, to satisfy the 'substantial' utility requirement, an asserted use must show that the claimed invention has a significant and presently available benefit to the public."  In re Fisher, 421 F.3d 1365, 1371 (Fed. Cir. 2005).  This requirement has been read to indicate that general discoveries that can further research that will lead to actually useful products. 

The easiest way to see the distinction is that in one you have a discovery that may prove useful after further research.  In the other you have a discovery that has present (even if minimal) use to the public.
 
2013-06-13 11:52:46 AM  

Teiritzamna: Marcus Aurelius: Teiritzamna: it represented an imbalance in protections for copyrighted works in the two biggest markets for those works

There's the rub.  We could just as easily have "corrected the imbalance" by SHORTENING the span.

How often does THAT happen?

/betting zero

Well that would require changes in multiple European countries, so 1 we kinda lack jurisdiction there, two changing multiple laws is harder than changing one, and three the European conception of copyright is rather different, such that a tack down in term would be almost unthinkable there.


So why exactly did we need to "correct the imbalance" if that's the case?

/already know the answer
//campaign contributions and lobbyists
 
2013-06-13 11:53:07 AM  

dartben: Yeah, but trademark doesn't prevent derivative works. If people want to write and sell fan fiction where Mickey mouse meets Tom Sawyer, he needs to be in the public domain.


The trick here is sell.  You could not indicate that you were selling a story that included mickey mouse.  If you did, Disney could sue you for trademark infringement because you would be confusing consumers as to the source of the work.

Thus you could likely have MM in a cameo style role, but if he were to be a main character, you would have to sell the work without actually indicating that he was in it.  Also if it were a visual work, there is some solid case law suggesting that even depicting him within the work could count as a form of post-sale confusion.

Personally i think that doctrine is an abomination and the one black mark against standard trademark law, but it is out there and i am sure Disney would avail themselves of it.
 
2013-06-13 12:02:18 PM  

Teiritzamna: dartben: Yeah, but trademark doesn't prevent derivative works. If people want to write and sell fan fiction where Mickey mouse meets Tom Sawyer, he needs to be in the public domain.

The trick here is sell.  You could not indicate that you were selling a story that included mickey mouse.  If you did, Disney could sue you for trademark infringement because you would be confusing consumers as to the source of the work.

Thus you could likely have MM in a cameo style role, but if he were to be a main character, you would have to sell the work without actually indicating that he was in it.  Also if it were a visual work, there is some solid case law suggesting that even depicting him within the work could count as a form of post-sale confusion.

Personally i think that doctrine is an abomination and the one black mark against standard trademark law, but it is out there and i am sure Disney would avail themselves of it.


They'd still have to prove confusion. If you put a big "this is not a Disney product" in bold letters on the cover, or something like that, it would at least be arguable.

Right now you can't even get to that point
 
2013-06-13 12:02:44 PM  

Marcus Aurelius: So why exactly did we need to "correct the imbalance" if that's the case?

/already know the answer
//campaign contributions and lobbyists


One answer given by congress was that the resulting trade imbalance would harm American business as we would be the largest exporter of copyrighted works with the lowest protection margin in the developed world.  This would result in a system where, supposedly, American artists would be barred from using, would forced to pay for European works for 25 extra years, while European artists would be able to use similarly aged American works for free.

Make of this what you will - i sure don't fully by it as a justification - but i still save my ire for the European model of moral rights and the general disdain for the public domain it represents, which is just dumb.
 
2013-06-13 12:04:08 PM  

Teiritzamna: dartben: Mickey Mouse enters the public domain in 2019, I believe. Look for a new copyright extension law in 2018.

humorously enough, they really don't need it:

the fact that a copyrightable character or design has fallen into the public domain should not preclude protection under the trademark laws so long as it is shown to have acquired independent trademark significance, identifying in some way the source or sponsorship of the goods.  Frederick Warne & Co. v. Book Sales, Inc.

trademark lasts forever and trust me that Disney has trademarked all the classic characters.


Doesn't trademark have the drawback that one must defend it or risk losing it? Pretty sure that's not the case with copyright.
 
2013-06-13 12:04:38 PM  
SCOTUS broke its losing streak.  Huzzah!
 
2013-06-13 12:07:26 PM  

dartben: They'd still have to prove confusion. If you put a big "this is not a Disney product" in bold letters on the cover, or something like that, it would at least be arguable.


Oh sure, but 1) even with messages up the yin-yang they are likely to prevail because i dont know of any works that match their level of secondary meaning (express statements of non-infringement do not as a matter of law defeat claims of trademark infringement, and you would be surprised at the number of cases where parties stating "this is not an X" product lost, and 2) try to write your fan fic and weather a multi-million dollar lawsuit to do it.  Disney has the coffers and the legal savy to know that even if you could win, it would likley be so economically prohibitive to try that you will just write something else.
 
2013-06-13 12:09:03 PM  

AndreMA: Doesn't trademark have the drawback that one must defend it or risk losing it? Pretty sure that's not the case with copyright.


this is true.  However Disney, I think, would not mind throwing out a flurry of cease and desist notices and fighting a few court cases to show that they would take people who used their marks to the cleaners.
 
2013-06-13 12:11:44 PM  

dartben: Teiritzamna: dartben: Mickey Mouse enters the public domain in 2019, I believe. Look for a new copyright extension law in 2018.

humorously enough, they really don't need it:

the fact that a copyrightable character or design has fallen into the public domain should not preclude protection under the trademark laws so long as it is shown to have acquired independent trademark significance, identifying in some way the source or sponsorship of the goods.  Frederick Warne & Co. v. Book Sales, Inc.

trademark lasts forever and trust me that Disney has trademarked all the classic characters.

Yeah, but trademark doesn't prevent derivative works. If people want to write and sell fan fiction where Mickey mouse meets Tom Sawyer, he needs to be in the public domain.

It would be interesting to see what trumps what if it came to a legal battle between copyright allowing derivative works and trademark protections.


IANAL, I just took Comm Law in college, so I may be way off base here... but the way I understand it, Mickey Mouse as a concept/entity/character is trademarked, so you wouldn't be able to just arbitrarily use Mickey Mouse himself, unless it already fell under fair use anyway (parody, commentary, non-commercial, etc). There are some specific Steamboat Willie/Mickey Mouse cartoons that will fall into public domain in whatever year, and then those specific cartoons will be freely remixable/derivable. But remixing that one specific cartoon into something else doesn't mean you have free rein to use, say, the version of Mickey Mouse from Mickey Mouse Clubhouse, the current TV series.

Mickey Mouse as a character won't enter the public domain until The Walt Disney Company ceases to exist. So, on or about the 32nd of Febtober.
 
2013-06-13 12:12:06 PM  

The Madd Mann: raerae1980: I can't believe all 9 justices agreed!!!!
But, what does this mean, "The justices said it can patent a type of DNA that goes beyond extracting the genes from the body."

You can read the decision here. The relevant type of DNA that can be patented is complementary DNA, which is defined on page 3:

DNA's informational sequences and the processes that create mRNA, amino acids, and proteins occur naturally within cells. Scientists can, however, extract DNA from cells using well known laboratory methods. These methods allow scientists to isolate specific segments of DNA-for instance, a particular gene or part of a gene-which can then be further studied, manipulated, or used. It is also possible to create DNA synthetically through processes similarly well known in the field of genetics. One such method begins with an mRNA molecule and uses the natural bonding properties of nucleotides to create a new,synthetic DNA molecule. The result is the inverse of the mRNA's inverse image of the original DNA, with one important distinction: Because the natural creation ofmRNA involves splicing that removes introns, the synthetic DNA created from mRNA also contains only the exon sequences. This synthetic DNA created in the laboratory from mRNA is known as complementary DNA (cDNA).


I would just add that the real decision is the recognition of the information content of DNA. Genes were allowed to be patented under existing rulings that natural molecules are patentable if you can derive benefit from a novel isolation method. For example, insulin was patented despite being naturally occurring. This meant that people went around patenting human genes that they sequenced, saying their isolation of the sequence was an "invention." In most cases, those patents are useless, but they still exist and in some cases could probably have been enforced. This ruling says that DNA is not just a naturally occurring molecule like insulin, but the sequence of the DNA is what nature produced. So you can still patent genes that have been engineered, for example Monsanto has valid patents on its GMOs, and that is not overturned. This merely prevents patenting of naturally occurring DNA sequences.
 
2013-06-13 12:14:43 PM  

nekom: raerae1980: I can't believe all 9 justices agreed!!!!
But, what does this mean, "The justices said it can patent a type of DNA that goes beyond extracting the genes from the body."

Good question.  My guess would be that they can patent artificial genes maybe, but not those that occur in nature?  Though even that is pretty vague.


That's my take on it.

I figure they can also patent adding genes from non-human sources into humans.

So if they figure out how to fix a genetic anomaly by taking fungus DNA and inserting it into a human's genetic code, that's patentable.

Now, what happens if they patent a sequence of genes from a non-human source that is identical or near identical to a sequence of human genes?
 
2013-06-13 12:17:04 PM  

Teiritzamna: One answer given by congress


And I think we know who gave it to them.

Thanks for the education in any case!  You are as always a font of legal knowledge.
 
2013-06-13 12:17:49 PM  

raerae1980: I can't believe all 9 justices agreed!!!!


Why? Even in this relatively partisan day and age, 9-0 is still the most common outcome by a pretty wide margin.

But, what does this mean, "The justices said it can patent a type of DNA that goes beyond extracting the genes from the body."

If someone actually invents a new type of gene, that can be patented. But discovering an existing type of gene in the human body is another matter. The BRCA genes were discovered, not invented, so patents don't apply.
 
2013-06-13 12:17:56 PM  

meat0918: nekom: raerae1980: I can't believe all 9 justices agreed!!!!
But, what does this mean, "The justices said it can patent a type of DNA that goes beyond extracting the genes from the body."

Good question.  My guess would be that they can patent artificial genes maybe, but not those that occur in nature?  Though even that is pretty vague.

That's my take on it.

I figure they can also patent adding genes from non-human sources into humans.

So if they figure out how to fix a genetic anomaly by taking fungus DNA and inserting it into a human's genetic code, that's patentable.

Now, what happens if they patent a sequence of genes from a non-human source that is identical or near identical to a sequence of human genes?


They would have to patent more than just the sequence. They would have to use it for something novel and show that their new method or invention is not something trivial. I don't think the ruling is specifically for human DNA sequences. So for your fungal DNA example, they couldn't patent the fungal DNA sequence itself, but the method of inserting it into humans as a treatment.
 
2013-06-13 12:18:23 PM  

Teiritzamna: raerae1980: But, what does this mean, "The justices said it can patent a type of DNA that goes beyond extracting the genes from the body."

You take multiple bits of naturally occurring DNA and recombine them into a new, non naturally occurring sequence.  This you can patent.


I need to see the ruling. Do you have a link to the specifics. It sounds like they're letting cDNA, or the buffer copy of the PCR still lie under patent because it's synthetic. Or am I wrong?
 
2013-06-13 12:20:10 PM  

pseudoscience: meat0918: nekom: raerae1980: I can't believe all 9 justices agreed!!!!
But, what does this mean, "The justices said it can patent a type of DNA that goes beyond extracting the genes from the body."

Good question.  My guess would be that they can patent artificial genes maybe, but not those that occur in nature?  Though even that is pretty vague.

That's my take on it.

I figure they can also patent adding genes from non-human sources into humans.

So if they figure out how to fix a genetic anomaly by taking fungus DNA and inserting it into a human's genetic code, that's patentable.

Now, what happens if they patent a sequence of genes from a non-human source that is identical or near identical to a sequence of human genes?

They would have to patent more than just the sequence. They would have to use it for something novel and show that their new method or invention is not something trivial. I don't think the ruling is specifically for human DNA sequences. So for your fungal DNA example, they couldn't patent the fungal DNA sequence itself, but the method of inserting it into humans as a treatment.


I always forget that "It has to be useful" part.
 
2013-06-13 12:21:20 PM  

raerae1980: I can't believe all 9 justices agreed!!!!
But, what does this mean, "The justices said it can patent a type of DNA that goes beyond extracting the genes from the body."


The Island of Dr. MoreauTM.
 
2013-06-13 12:21:46 PM  

Marcus Aurelius: Teiritzamna: One answer given by congress

And I think we know who gave it to them.

Thanks for the education in any case!  You are as always a font of legal knowledge.


No prob - although i appear to be writing like a sub-literate howler monkey  today.  This is what happens when i dont edit and review before hitting post (somewhat busy, alas).

Have a good one.
 
2013-06-13 12:22:25 PM  

pseudoscience: meat0918: nekom: raerae1980: I can't believe all 9 justices agreed!!!!
But, what does this mean, "The justices said it can patent a type of DNA that goes beyond extracting the genes from the body."

Good question.  My guess would be that they can patent artificial genes maybe, but not those that occur in nature?  Though even that is pretty vague.

That's my take on it.

I figure they can also patent adding genes from non-human sources into humans.

So if they figure out how to fix a genetic anomaly by taking fungus DNA and inserting it into a human's genetic code, that's patentable.

Now, what happens if they patent a sequence of genes from a non-human source that is identical or near identical to a sequence of human genes?

They would have to patent more than just the sequence. They would have to use it for something novel and show that their new method or invention is not something trivial. I don't think the ruling is specifically for human DNA sequences. So for your fungal DNA example, they couldn't patent the fungal DNA sequence itself, but the method of inserting it into humans as a treatment.


The ruling as it lies confuses me because they don't invalidate cDNA coding, which lay at the heart of this case. But yes, I can live with the ruling if they've declared that sequencing is natural, but transformation isn't. It's a decent compromise.
 
2013-06-13 12:23:32 PM  
It was so clear and unanimous that they let Clarence Thomas write the opinion. Well after collaborating with him.
 
2013-06-13 12:23:51 PM  
Billie Jean still wants child support.
 
2013-06-13 12:24:26 PM  
My first thought is, "What is this going to do to the story line of Orphan Black?*
 
2013-06-13 12:25:59 PM  

Kinek: Teiritzamna: raerae1980: But, what does this mean, "The justices said it can patent a type of DNA that goes beyond extracting the genes from the body."

You take multiple bits of naturally occurring DNA and recombine them into a new, non naturally occurring sequence.  This you can patent.

I need to see the ruling. Do you have a link to the specifics. It sounds like they're letting cDNA, or the buffer copy of the PCR still lie under patent because it's synthetic. Or am I wrong?


Madd Mann posted it earlier here. They are allowing patenting of cDNA because, for example, the removal of introns makes it is a synthetic molecule. However I doubt you could just patent the cDNA copy of a gene, but I'm not sure.
 
2013-06-13 12:28:18 PM  

Kinek: Teiritzamna: raerae1980: But, what does this mean, "The justices said it can patent a type of DNA that goes beyond extracting the genes from the body."

You take multiple bits of naturally occurring DNA and recombine them into a new, non naturally occurring sequence.  This you can patent.

I need to see the ruling. Do you have a link to the specifics. It sounds like they're letting cDNA, or the buffer copy of the PCR still lie under patent because it's synthetic. Or am I wrong?


here is the relevant language:

eDNA does not present the same obstacles to patentability as naturally occurring, isolated DNA segments. As
already explained, creation of a eDNA sequence from mRNA results in an exons-only molecule that is not naturally occurring. Petitioners concede that eDNA differs from natural DNA in that ''the non-coding regions have been removed." Brief for Petitioners 49. They nevertheless argue that eDNA is not patent eligible because "[t]he nucleotide sequence of eDNA is dictated by nature, not by the lab technician." ld., at 51. That may be so, but the lab technician unquestionably creates something new when eDNA is made. eDNA retains the naturally occurring exons ofDNA, but it is distinct from the DNA from which it was derived. As a result, eDNA is not a "product of nature" and is patent eligible under §101, except insofar as very short series of DNA may have no intervening introns to remove when creating eDNA. In that situation, a short strand of eDNA may be  indistinguishable from natural DNA.

The needle the court is threading is saying that if you just isolate extant DNA there is no inventive component allowing patentability under 101.  However, if a person manipulates the DNA so that it is no longer in its natural sequence, then that is possibly protectable.  the old analogy from earlier Myriad cases is if you find a stick along a path and realize it will be useful to cook marshmallows, you have invented nothing and could never patent it (let us assume no one has ever considered doing this before).  However if you take a branch and carve some sort of spit  for the roasting of marshmallows, that change from the stick's original form to the new invention is patentable.

Kinek: The ruling as it lies confuses me because they don't invalidate cDNA coding, which lay at the heart of this case. But yes, I can live with the ruling if they've declared that sequencing is natural, but transformation isn't. It's a decent compromise.


Both cDNA and regular old DNA were patented under the Asserted patents.  and given the holding, it appears that other firms could make different variants of cDNA that would allow testing for the BRCA genes without reading onto the patents claimed by Myriad.  So its not that bad an oppinion.
 
2013-06-13 12:29:57 PM  

Teiritzamna: Kinek: Teiritzamna: raerae1980: But, what does this mean, "The justices said it can patent a type of DNA that goes beyond extracting the genes from the body."

You take multiple bits of naturally occurring DNA and recombine them into a new, non naturally occurring sequence.  This you can patent.

I need to see the ruling. Do you have a link to the specifics. It sounds like they're letting cDNA, or the buffer copy of the PCR still lie under patent because it's synthetic. Or am I wrong?

here is the relevant language:

eDNA does not present the same obstacles to patentability as naturally occurring, isolated DNA segments. As
already explained, creation of a eDNA sequence from mRNA results in an exons-only molecule that is not naturally occurring. Petitioners concede that eDNA differs from natural DNA in that ''the non-coding regions have been removed." Brief for Petitioners 49. They nevertheless argue that eDNA is not patent eligible because "[t]he nucleotide sequence of eDNA is dictated by nature, not by the lab technician." ld., at 51. That may be so, but the lab technician unquestionably creates something new when eDNA is made. eDNA retains the naturally occurring exons ofDNA, but it is distinct from the DNA from which it was derived. As a result, eDNA is not a "product of nature" and is patent eligible under §101, except insofar as very short series of DNA may have no intervening introns to remove when creating eDNA. In that situation, a short strand of eDNA may be  indistinguishable from natural DNA.

The needle the court is threading is saying that if you just isolate extant DNA there is no inventive component allowing patentability under 101.  However, if a person manipulates the DNA so that it is no longer in its natural sequence, then that is possibly protectable.  the old analogy from earlier Myriad cases is if you find a stick along a path and realize it will be useful to cook marshmallows, you have invented nothing and could never patent it (let us assume ...


huh - it appears my OCR decided it is eDNA, which as we all know is electronic DNA that became popular during the late 90s e-Everthing naming craze.
 
2013-06-13 12:32:25 PM  

the cake is a pie: dartben: Teiritzamna: dartben: Mickey Mouse enters the public domain in 2019, I believe. Look for a new copyright extension law in 2018.

humorously enough, they really don't need it:

the fact that a copyrightable character or design has fallen into the public domain should not preclude protection under the trademark laws so long as it is shown to have acquired independent trademark significance, identifying in some way the source or sponsorship of the goods.  Frederick Warne & Co. v. Book Sales, Inc.

trademark lasts forever and trust me that Disney has trademarked all the classic characters.

Yeah, but trademark doesn't prevent derivative works. If people want to write and sell fan fiction where Mickey mouse meets Tom Sawyer, he needs to be in the public domain.

It would be interesting to see what trumps what if it came to a legal battle between copyright allowing derivative works and trademark protections.

IANAL, I just took Comm Law in college, so I may be way off base here... but the way I understand it, Mickey Mouse as a concept/entity/character is trademarked, so you wouldn't be able to just arbitrarily use Mickey Mouse himself, unless it already fell under fair use anyway (parody, commentary, non-commercial, etc). There are some specific Steamboat Willie/Mickey Mouse cartoons that will fall into public domain in whatever year, and then those specific cartoons will be freely remixable/derivable. But remixing that one specific cartoon into something else doesn't mean you have free rein to use, say, the version of Mickey Mouse from Mickey Mouse Clubhouse, the current TV series.

Mickey Mouse as a character won't enter the public domain until The Walt Disney Company ceases to exist. So, on or about the 32nd of Febtober.


Trademark and copyright are two different areas of IP law. Trademarks exist to prevent customer confusion. Copyrights exist to reward artists for their creativity. A corporate logo is trademarked. A movie character is copyrighted.

The issue with Mickey Mouse is that he's both a symbol of a company and a creative work.

The trademark exists so long as a company uses it and defends it and it doesn't become genericized. A copyright created by a corporation lasts for a fixed term of years.

There are bound to be some areas where Mickey Mouse the character can be used one it enters the public domain with running afoul of Mickey Mouse, the corporate symbol of Disney.
 
2013-06-13 12:33:51 PM  

Kinek: pseudoscience: meat0918: nekom: raerae1980: I can't believe all 9 justices agreed!!!!
But, what does this mean, "The justices said it can patent a type of DNA that goes beyond extracting the genes from the body."

Good question.  My guess would be that they can patent artificial genes maybe, but not those that occur in nature?  Though even that is pretty vague.

That's my take on it.

I figure they can also patent adding genes from non-human sources into humans.

So if they figure out how to fix a genetic anomaly by taking fungus DNA and inserting it into a human's genetic code, that's patentable.

Now, what happens if they patent a sequence of genes from a non-human source that is identical or near identical to a sequence of human genes?

They would have to patent more than just the sequence. They would have to use it for something novel and show that their new method or invention is not something trivial. I don't think the ruling is specifically for human DNA sequences. So for your fungal DNA example, they couldn't patent the fungal DNA sequence itself, but the method of inserting it into humans as a treatment.

The ruling as it lies confuses me because they don't invalidate cDNA coding, which lay at the heart of this case. But yes, I can live with the ruling if they've declared that sequencing is natural, but transformation isn't. It's a decent compromise.


Yeah, it confuses me too. Here's what it says:

"They nevertheless argue that cDNA is not patent eligible because "[t]he nucleotide sequence of cDNA is dictated by nature, not by the lab technician." Id., at 51. That may be so, but the lab technician unquestionably creates something new when cDNA is made. cDNA retains the naturally occurring exons of DNA, but it is distinct from the DNA from which it was derived. As a result, cDNA is not a "product of nature" and is patent eligible under §101, except insofar as very short series of DNA may have no intervening introns to remove when creating cDNA. In that situation, a short strand of cDNA may be indistinguishable from natural DNA.9 "

So I guess the cDNA is patentable so long as it doesn't match the natural DNA sequence exactly. But I don't think this could be used in the same way as gene patents because patenting the cDNA version of a human gene wouldn't prevent others from detecting the gene sequence. I would think this is only patentable for using a synthetic cDNA copy for therapeutic purposes or similar. Interesting to see how that plays out.
 
2013-06-13 12:34:06 PM  
I wonder what happens if a patented pharmaceutical is later found to occur naturally in a plant? Does the patent go *poof*?
 
2013-06-13 12:35:25 PM  

dartben: The trademark exists so long as a company uses it and defends it and it doesn't become genericized.


The name at least is well on the way: "This is a Mickey Mouse outfit and I want out!"
 
2013-06-13 12:45:54 PM  
Will this lower the cost of the breast cancer gene test?
 
2013-06-13 12:47:11 PM  
A friend of mine argued this case before SCOTUS.  I disagreed with his client's claim, so I'm kind of torn
 
2013-06-13 12:49:13 PM  

The My Little Pony Killer: Will this lower the cost of the breast cancer gene test?


Effectively, yes. Because now others will be allowed to create similar tests, likely for cheaper. Myriad's test is very expensive relative to what it ensues, mainly because they didn't have any reason to lower the price.
 
2013-06-13 12:54:05 PM  

The Flexecutioner: okay, fine.  Patent trolls lose this round, but dont count out the gene gnomes.  they're a feisty bunch.


Technically, Myriad is not a patent troll*. They not only did the research to discover this gene, they sell testing services.

*unless we're using that over-broad "anyone I don't like is a troll" definition.
 
2013-06-13 12:54:18 PM  

raerae1980: I can't believe all 9 justices agreed!!!!
But, what does this mean, "The justices said it can patent a type of DNA that goes beyond extracting the genes from the body."


47 is the new 42: Did I somehow end up in a parallel universe?  The Supreme Court coming to a unanimous decision and actually making a good ruling?

/ Still pissed about the DNA collection ruling.


You guys know that only about 1 in 5 SCOTUS cases are decided 5-4 right?

And you know that Roberts, as a Chief Justice, is pretty well known for trying to get all the Justices to at least agree in part?
 
2013-06-13 12:57:59 PM  

Munchausen's Proxy: A friend of mine argued this case before SCOTUS.  I disagreed with his client's claim, so I'm kind of torn


He must have been on the losing side
 
2013-06-13 12:59:25 PM  

pseudoscience: The My Little Pony Killer: Will this lower the cost of the breast cancer gene test?

Effectively, yes. Because now others will be allowed to create similar tests, likely for cheaper. Myriad's test is very expensive relative to what it ensues, mainly because they didn't have any reason to lower the price.


Although they did affirm patentability of the cDNA claims... I don't know how crucial they are to testing, though.
 
2013-06-13 01:07:49 PM  
 
2013-06-13 01:11:38 PM  

weiserfireman: Munchausen's Proxy: A friend of mine argued this case before SCOTUS.  I disagreed with his client's claim, so I'm kind of torn

He must have been on the losing side


Whenever there is a unanimous decision like this one I am left wondering why the losing party pursued it all the way to the SC. Yeah, I understand they had a lot of money at stake, but Jesus...they got their asses handed to them.
 
2013-06-13 01:13:38 PM  

Theaetetus: pseudoscience: The My Little Pony Killer: Will this lower the cost of the breast cancer gene test?

Effectively, yes. Because now others will be allowed to create similar tests, likely for cheaper. Myriad's test is very expensive relative to what it ensues, mainly because they didn't have any reason to lower the price.

Although they did affirm patentability of the cDNA claims... I don't know how crucial they are to testing, though.


Usually not important.

cDNA is usually made by reverse transcribing a gene that's been expressed (turned into mRNA, with the introns (non-coding regions) spliced out).  I don't agree that it's "artificial," because it's made using a natural process, that is hijacking an enzyme produced by some viruses. This enzyme can turn RNA into DNA and is called reverse transcriptase, where most animals only have polymerase, which turns DNA to RNA and is now genes are expressed.

Anyway, most genetic disorders would be detectable through direct sequencing, which doesn't involve cDNA.  If there are disorders that are due to gene over- or under-expression, or due to splicing out the wrong subset of exons, we might need to use cDNA and that, if I'm understanding the opinion correctly, is patentable. However, often we can predict whether genes would be over/under expressed or mis-spliced due to the sequence variation, again not requiring the use of cDNA.

Frankly I don't understand how anybody thought that genes would be patentable, so the whole case is a mystery to me.  I understanding patenting the procedure, but in this case it is simply PCR and sequencing, and the latter at least is patented and frequently, easily used.
 
2013-06-13 01:14:49 PM  

pseudoscience: Kinek: pseudoscience: meat0918: nekom: raerae1980: I can't believe all 9 justices agreed!!!!
But, what does this mean, "The justices said it can patent a type of DNA that goes beyond extracting the genes from the body."

Good question.  My guess would be that they can patent artificial genes maybe, but not those that occur in nature?  Though even that is pretty vague.

That's my take on it.

I figure they can also patent adding genes from non-human sources into humans.

So if they figure out how to fix a genetic anomaly by taking fungus DNA and inserting it into a human's genetic code, that's patentable.

Now, what happens if they patent a sequence of genes from a non-human source that is identical or near identical to a sequence of human genes?

They would have to patent more than just the sequence. They would have to use it for something novel and show that their new method or invention is not something trivial. I don't think the ruling is specifically for human DNA sequences. So for your fungal DNA example, they couldn't patent the fungal DNA sequence itself, but the method of inserting it into humans as a treatment.

The ruling as it lies confuses me because they don't invalidate cDNA coding, which lay at the heart of this case. But yes, I can live with the ruling if they've declared that sequencing is natural, but transformation isn't. It's a decent compromise.

Yeah, it confuses me too. Here's what it says:

"They nevertheless argue that cDNA is not patent eligible because "[t]he nucleotide sequence of cDNA is dictated by nature, not by the lab technician." Id., at 51. That may be so, but the lab technician unquestionably creates something new when cDNA is made. cDNA retains the naturally occurring exons of DNA, but it is distinct from the DNA from which it was derived. As a result, cDNA is not a "product of nature" and is patent eligible under §101, except insofar as very short series of DNA may have no intervening introns to remove when creating cDNA. In tha ...


It's a technically fine needle, as was mentioned above. So as far as actual practical application goes, it looks like it's going to be that DNA sequencing is fine, since it functions off of exact code, while RNA sequencing is not? I'm still confused as to what their justification for striking down perfect copy DNA while drawing the line at cDNA, which is the DNA equivalent of the RNA and required to read the RNA.

I'll take it as a win though. Someone else can fight the issue of the transcriptome being patented. For now the genome is safer.
 
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