Good News

[dieseltaylor]

The US Justice Department is looking at the granting of patents on genomes. Another words the US Patent Office has given US companies patents on the normal DNA of humans. Roughly 20% of the human genome.

Now you might think that as these existed before Patents were invented one could hardly claim to have made them or expect rights to them. After all discovering a particle in physics does provide any rights. But here read the brief first, or skip to the March decision:

http://graphics8.nytimes.com/packages/pdf/business/genepatents-USamicusbrief.pdf

The story kicked off with this decision:

http://www.businessweek.com/news/2010-03-29/myriad-loses-ruling-over-breast-cancer-gene-patents-update1-.html

Myriad Genetics is/ was with its patent on human breast cancer genes BRCA1 and BRCA2 -- it's charging $3,000 a pop to run a simple test that determines whether women carry those genes.

[dumrox]

Interesting. Michael Crichton's final novel, "Next", dealt with this very subject matter.

http://en.wikipedia.org/wiki/Next_(novel)

Pretty average book in my opinion. I found some of the more improbable scenarios in this book (a half human chimpanzee going to school as a boy and a similarly altered parrot that carries on intelligent conversations) detracted from the more serious side of the book, where Crichton had obviously done a fair amount of research, the whole patenting of human genes.

[Stalins Organ]

do they patent the genome, of the process of identifying and isolating it?

[JonS]

The genes, which means no one else can develop an alternate test/treatment.

http://boingboing.net/2010/03/29/aclu-prevails-us-fed.html

http://www.boingboing.net/2010/10/30/natural-genes-cant-b.html

[Affentitten]

Whilst I garee with the decision, the backside of it is that when companies can't be guaranteed a strong return on the heavy and long-term reserach they put into this stuff, they will be less likely to make the effort. They can of course patent the tests and the like, but what they're looking for is watertight commercial protection.

[JonS]

They can of course patent the tests and the like, but what they're looking for is watertight commercial protection.

The patent on the test/treatment is the 'watertight commercial protection'. Furthermore, in unravelling a specific gene - say breast cancer in this case - that team is going to be the best placed to actually do anything with that information, since they have the most detailed knowledge of the gene and it's functions.

That, or they can just make another asprin clone.

[Stalins Organ]

they patent the actual gene??

How does the system justify patenting something that was not invented or created by the entity claiming the patent, and which, moreover, has been created by someone else - specifically the ancestors of the person carrying the gene (all the way back to the protozoa) + random natural variation?

Edit - having looked at he links above I'm even more confused - as far as I can tell they say that het court has over-rulled patent protection for "natural" genes, while protecting tests, man-altered genes, and othe things for which patent protection seems perfectly reasonable??

[Affentitten]

The patent on the test/treatment is the 'watertight commercial protection'. .

No it's not. Because tests that slightly differ from your one are much easier to come up with than the original gene mapping and R&D. So for your competitors it's an easier task to profit off your work. Of course, you could look at it and say "Let the market decide". In which case the breast cancer test might end up at $50 a throw instead of $3000. Which is good. Like I say though, the companies might decide it's not worth the ernormous upfront cost.

[Affentitten]

they patent the actual gene??

How does the system justify patenting something that was not invented or created by the entity claiming the patent, and which, moreover, has been created by someone else - specifically the ancestors of the person carrying the gene (all the way back to the protozoa) + random natural variation?

What they're patenting is their work in finding that indicator gene and therefore their right to profit from it. Don't think of it in this case as like a patent on an invention. This is a patent on their IP and competitors making use of it. As the article says though, it's really a "lawyer's trick".

[JonS]

they patent the actual gene??

How does the system justify patenting something that was not invented or created by the entity claiming the patent, and which, moreover, has been created by someone else - specifically the ancestors of the person carrying the gene (all the way back to the protozoa) + random natural variation?

Yes. Quite. That's why the patents are being overturned.

RTFA, much?

[Stalins Organ]

Yes Jon I rtfa - hence the edit in my post above.

The articles seem to be saying exactly the opposite of the first sentence in teh 1st post of this thread, to wit:

The US Justice Department is looking at the granting of patents on genomes. Another words the US Patent Office has given US companies patents on the normal DNA of humans. Roughly 20% of the human genome.

Which I read as saying that patent protection was allowed.

when DT wrote "The US Justice Department is looking at the granting of patents on genomes. " it read to me that it was about allowing the protection of genomes, and the articles did not tie up with that statement.

[Affentitten]

Yes Jon I rtfa - hence the edit in my post above.

The articles seem to be saying exactly the opposite of the first sentence in teh 1st post of this thread, to wit:

Which I read as saying that patent protection was allowed.

when DT wrote "The US Justice Department is looking at the granting of patents on genomes. " it read to me that it was about allowing the protection of genomes, and the articles did not tie up with that statement.

FWIW I agree with your read. The OP was confusing.

[JonS]

The OP was confusing.

Of course it was; Deez posted it.

[JonS]

Yes Jon I rtfa - hence the edit in my post above.

Notwithstanding my previous post - which remains valid - it looks like you were editing while I was posting, and our posts got crossed up.

tl;dr - Deez pooched it.

[dieseltaylor]

Well I am afraid I did not make it simpler - a lot simpler : )

So rehash: The USPTO has been granting patents incorrectly and the Justice Department has now weighed in to sort out what is patentable and what is not. The decision that seems to be aimed for is that what already exists naturally is unpatentable.

With regard to the rewards due to medical companies for discovering novel inventions/twists I actually think the system sucks. There are cures in existence that need exploting but because they cannot be patented drug companies are not interested in extending them. National universities and research organisations should be funded for this type of research.

Eg

Neem - intellectual property rights (IPR)

The commercial development of neem-based insecticides has raised some interesting legal issues, after a patent was granted to an American company, W.R. Grace & Co, for a neem-based insecticide. The patent concerns extraction of stable compounds that deter insects from eating plants.

Controversy

Observers immediately questioned whether the patent covered a truly new process. Novelty is an essential property of a patented invention. A hearing at the European Patent Office in 2000 established that the European patent (EP0436257) was invalid, because the use of hydrophobic elements in neem, for pest control, was already known in India. The patent was revoked. However, the patent issued by the United States Patent Office in 1992 remains valid.

Wider questions

The neem patent case is more complicated than sometimes presented. It was not an attempt to patent the tree itself, but was clearly regarded by the European Patent Office as an attempt to patent indigenous knowledge. However, the case is one of a number that raise wider ethical and legal questions about patenting uses of plants that originate in other countries, or which have traditional uses which have not been written down.

These cases have spurred the Indian government and other countries to take a much more proactive approach to recording indigenous knowledge (IK). If IK is recorded in written form, it will be easier to demonstrate that proposed patents do not represent novel uses. It should be noted that in India itself, numerous patents have been granted on specific aspects relating to use of neem.

[Michael Emrys]

So rehash: The USPTO has been granting patents incorrectly and the Justice Department has now weighed in to sort out what is patentable and what is not. The decision that seems to be aimed for is that what already exists naturally is unpatentable.

This may result in a whole slough of patents being thrown out then. For the last couple of decades, some bio-companies have sent teams into places like Central America to discover plant species with possible medical or other applications and then patenting their genes.

With regard to the rewards due to medical companies for discovering novel inventions/twists I actually think the system sucks....National universities and research organisations should be funded for this type of research.

Completely agree. Actually, to some extent it already is. A certain amount of shady practice may be involved where government funded research gets ripped off by private interests and then claimed by them. Nasty, nasty if true.

Michael

[Affentitten]

With regard to the rewards due to medical companies for discovering novel inventions/twists I actually think the system sucks. There are cures in existence that need exploting but because they cannot be patented drug companies are not interested in extending them. National universities and research organisations should be funded for this type of research.

Eg

That's what the Medicines Patent Pool has been set up to do. I think it was launched just about a month ago. However it is mainly aimed at HIV meds.

Even with the patents, universities and research organisations are rarely going to have the financial grunt to make progress. The cost of developing and trialling drugs these days has parallels in the cost of developing fighter aircraft. That is to say, the dollars, time and technical deamnds are becoming further and further out of reach. Hence all the super-mergers since 1995 (just like the aircraft industry) and the fact that the start-ups with bright ideas need to sell themselves off to big pharma to make a go of them.

Some of the cost is in the ethics too. You can't go out to Gabon with a half-baked cure and start seeing if it works any more. You need exhaustive testing and approvals on everything from rats to monkeys before you can even go near a human volunteer.

With these sort of costs, which can run over decades, ROI is of course the underlying concern. It's hard to get a drug company interested in developing a cure for some skin disease found only in central Africa when nobody can afford to buy it, or anyway, the company will cop a PR caning for not releasing for free. Not when they can spend the same money developing a diabetes cure that 50% of the Western world will be needing by 2025.