A federal judge in New York on Monday invalidated patents held by the University of Utah Research Foundation that cover ways of identifying two genes linked to breast and ovarian cancer. The judge said the patents, which the university has licensed commercially to Myriad Genetics Inc., were “improperly granted” because identifying the genes was an “abstract mental process” and, as such, ineligible for patenting. The genes are known as BRCA1 and BRCA2.
According to BusinessWeek, the groups that brought the patent challenge—including the American Civil Liberties Union, the Public Patent Foundation, the Association for Molecular Pathology, and the American College of Medical Genetics—said that the patents “consist essentially of looking at genes.” The decision, which is likely to be appealed, could encourage challenges to other gene patents. It can be downloaded from the ACLU’s Web site.
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3 Responses to Federal Judge’s Ruling Invalidates High-Profile U. of Utah Gene Patents
philip123 - March 29, 2010 at 11:19 pm
This is excellent news! James Watson co-discoverer of DNA was opposed to such patents and when NIH overuled him he left, or was forced out, in 1992. As the judge correctly notes these are products of nature not intellectual products. Now we are in the absurd position of being able to cheaply and rapidly sequence a persons entire genome. Is every single nucleotide polymorphism found in the individual by the testing company open to being patented. It is to my mind akin to buying a microscope and then claiming a patent on whatever components of life I find there. What about, again as the judge noted, the problem with stifling scientific advance by not being able to openly study the gene in question. I would go one further and say that no DNA sequence whether created artificially or found through sequencing may be patented. Quite often these sequences end up in self replicating or potentially self replicating organisms. There is an interesting story http://healthjournalclub.blogspot.com/2010/03/astonishing-court-case-of-becky-mcclain.html of a microbiologist who is claiming she was inadvertently infected by a genetically engineered virus. The company however, is refusing to release the sequence of the virus in question. Well what if that virus or a future one turned out to be contagious? Can you even place a patent on a computer virus? How much more foolish to claim there is patent protection on a virus that might someday be able to kill you. At the very least, requests by health practitioners or public health officials should over rule patent claims, whether a sequenced part of a genome or one made from scratch. Glad to see this ruling.Paulhttp://healthjournalclub.blogspot.com/
hamsandwich - March 30, 2010 at 9:01 am
I applaud this ruling, however I disagree with one part of Paul’s comment above – DNA vectors that have been conceived and built by a person or organization (such as expression vectors, reporter gene vectors, etc) should be patentable, in my opinion. They come about as any invention does, by a creative idea followed by a lot of troubleshooting to get them right. Why shouldn’t the researchers/companies (the inventors) be able to profit from their ideas and hard work? I think that an analogy from the real world would be that while you can’t patent wood (a raw organic material – not the genetically-engineered kind!), but you can patent how it’s shaped into something useful. I think that the same reasoning should be applied to nucleic acids – you shouldn’t be able to patent an organism, or a gene, or a genome, but when you do something useful with them, then your application should be protected – ala green fluorescent protein (GFP) technology borrowed from jellyfish.
philip123 - April 1, 2010 at 5:15 am
Hamsandwich,While I am not entirely opposed to patents on the things you mention, I would just remind you we are dealing with things that are potentially a part of a self-replicating system and for that reason potentially extremely dangerous. Let say, I from scratch some up with influebola … ooops it got out. Do I now have a patent claim that allows me to be free from describing exactly what has occured??So I guess I would say I could accept the type patents you mention with the caveat that any request by a physician or health official would over rule the patent and this would considering the litigiousness of society likely not make such patents very worthwhile. I am just quite cautious that irregardless of what laws we pass at the end of the day we are often dealing with self-propogating organisms. Paulhttp://healthjournalclub.blogspot.com