Patent on human cancer gene struck down

Wednesday, 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.


  1. I thin you need to elaborate a little more. I’m a tad confused about 1. the point of this article and 2. your opinion. You seem to be saying that people shouldn’t patent genes found in other people’s bodies because they were nature’s work, not their own. Is that right?

    • The point of this article is just to point out the news story to readers of this blog, and my opinion is just as you said: people shouldn’t be able to patent something they didn’t make, like the genes naturally found in their body or in somebody else’s.

      The finer point, however, is that I’m actually perfectly ok with patenting of artificial genes. Some people are against the idea of any part of a living human being’s genome being owned, but not me.

      • That’s very interesting. However, I request that you see the movie “THE ISLAND”~it is a story about cloned individuals whose organs are harvested for their rich counterparts. I don’t know why it popped into my head, but it did, and it seems relatively connected.

        Anyways, I also (in another tangent0 just wanted to talk about these two researchers who discovered, supposedly, the beginning/edges of the universe. I don’t remember their names, but please bear with me.

        So, these two researchers kept recieving this strange static in their antenae/satellite. At first they thought it was bird poop. However, after cleaning it and hearing it for a great while, they sent off a report detailing what was going and asking if anyone had any solutions to a nearby (I can’t remember which) research facility/college. Well, someone there surmised that it was static from The Big Bang and that they were hearing the creation of the universe, as it were. These two researchers recieved a nobel prize. The other’s work went basically unrecognized.

        I don’t think they should have recieved that nobel prize. First off, they didn’t do anything. Second, it was nature’s work, not theirs. Third, they didn’t even know what it was so if anyone should have gotten the prize it should have been that scientist who accurately guessed the nature of the static.

        And that is why I also agree with your opinions. :)

  2. if we dont grant patents to biotech companies that research and isolate genes then they will have no incentive to preform research. Companies that dont offer genetic patents tend to not be leaders and innovators in biotech. it SHOULDNT be allowed but in a capitalist system, pragmatically, we have to

    • I agree that it could decrease private research funding, but ultimately nobody wants their genes to be patented even if it results in more medical breakthroughs. And besides, we still have public funding (we’re not fully capitalist yet).

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