Patent on human cancer gene struck downWednesday, 31 March, 2010
At last! Finally somebody has a clue! Maybe this will lead to the invalidation of the patents over the 20-something% of (protein-coding) human genes currently patented.
On Myriad Genetics Inc patent claims on two breast and ovarian cancer genes, U.S. District Judge Robert Sweet ruled that they were invalid:
Sweet said he invalidated the patents because DNA’s existence in an isolated form does not alter the fundamental quality of DNA as it exists in the body nor the information it encodes.
He rejected arguments that it was acceptable to grant patents on DNA sequences as long as they are claimed in the form of “isolated DNA.”
“Many, however, including scientists in the fields of molecular biology and genomics, have considered this practice a `lawyer’s trick’ that circumvents the prohibitions on the direct patenting of the DNA in our bodies but which, in practice, reaches the same result,” he said.
The judge said his findings were consistent with Supreme Court rulings that have established that purifying a product of nature does not mean it can be patented.
And, I can’t believe I’m going to say this, but I agree with somebody at the Center for Genetics and Society:
“The evidence has mounted that human gene patents are doing more harm than good,” and resulted more by accident than a well-thought-out policy, said Jesse Reynolds, a policy analyst at the Center for Genetics and Society. The center is a nonprofit policy research group advocating for oversight and responsible use of biotechnologies.
The Myriad patent “was particularly troublesome” because it was so broadly worded, Reynolds said.
Reading the court ruling, “I saw nothing that limited it to Myriad’s patents,” Reynolds said. It boiled down to this, he said: “Natural things aren’t patentable; inventions are.” [emphasis mine]
Damn straight! If and when you make your own human genes, with enhanced function or resistance to mutation or whatever, then sure, patent away. As the ruling says, you can only patent a gene that has ‘markedly different’ characteristics from a natural gene. A silent or conservative mutation won’t cut it. You’d have to do something like, take a gene from another animal, and put it in humans with the right enhancers, promotor and introns to have it properly expressed in human tissue. Then it has a ‘markedly different characteristic’, namely, specific expression in human tissue rather than in the original animal.
I’ve got no problem with people walking around with patented genes in their body, or even people being born with a genome that is partially owned by somebody. That’s necessary for biotech companies to make money from human gene therapy and human enhancement. I’ve just got a problem with people trying to claim as their own something that evolved naturally before they were even born.
Let’s just hope this holds up in the Supreme Court, where this case will inevitably end up.