

Breast cancer genes ruled unpatentable (by NY district court) - mmastrac
http://www.aclu.org/free-speech-technology-and-liberty-womens-rights/association-molecular-pathology-et-al-v-uspto-et-al

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Qz
From one of the linked-to articles:

 _The patents granted to Myriad give the company the exclusive right to
perform diagnostic tests on the BRCA1 and BRCA2 genes and to prevent any
researcher from even looking at the genes without first getting permission
from Myriad._

I don't know the ins and outs of patent law, but the idea that this kind of
patent was even granted makes me want to tear the whole damn thing down.

~~~
lutorm
That's about what I feel. Does anyone know if this is the first time that a
patent of a discovered gene has been tested in court?

~~~
Qz
I don't know. The article I read mentioned that the basis for the ACLU's suit
was against the idea of patenting genes in general, which is likely to have
significant secondary effects as future cases will be able to use this case as
legal precedent.

I'm still boggled by the idea that human genes have been allowed to be
patented. I mean, if the general public really knew that this was happening I
feel like there would be at least a moderate uproar.

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jrockway
A wise move. Now nature will have no financial incentive to develop new types
of breast cancer.

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mmastrac
Ruling available here: [http://www.aclu.org/files/assets/2010-3-29-AMPvUSPTO-
Opinion...](http://www.aclu.org/files/assets/2010-3-29-AMPvUSPTO-Opinion.pdf)

The interesting bits start on page 96 (have to type this in by hand from the
PDF):

"The rule that the discovery of a law of nature cannot be patented rests [...]
they are not the kind of discovery that the status was enacted to protect."

~~~
_delirium
It seems reasonable to me. There's a gray area between "discovery" and
"invention", but finding a gene seems more like discovering something new
about how gravity works. If a physicist did that, they couldn't get a blanket
patent on the very idea of a device that took advantage of that gravitational
feature.

Where it does get trickier is that it seems that said physicist might be able
to patent a particular kind of new machine that took advantage of their
discovery, and analogously, someone might be able to patent a particular kind
of chemical or device that uses this gene.

~~~
lutorm
I don't think it's so tricky, and I think that's exactly what the ACLU said:
that you can patent therapies or drugs or whatever that work on that gene, but
you can't patent the gene itself.

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rodrigokumpera
Would such patent make cancer patients have to pay royalties for their
illness?

~~~
kjhgfvgbjnm
No but you would have to pay fees if you produced kids with cancer.

~~~
ZeroGravitas
I realise this is a joke, but patents cover the use of something, not just
reproduction or manufacture.

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teilo
Wouldn't this ruling mean that NO discovered genes may be patented?

