
Supreme Court to decide if human genes can be patented - chewymouse
http://rt.com/usa/human-gene-supreme-court-714/
======
jforman
What's at issue is not the "right to patent human genes" but the right to
patent in vitro copies of human genes. The claim from one of the primary
patents at issue:

"An isolated DNA coding for a BRCA1 polypeptide, said polypeptide having the
amino acid sequence set forth in SEQ ID NO:2"

Now, in order to perform any medical analysis on your DNA, you need to make
copies, so this is essentially the same as patenting the gene itself, but it
does make the argument a little bit more subtle. Still a ridiculous thing to
patent — I don't see any novelty in an vitro copy of something that occurs in
nature — but not as obviously a product of nature itself.

Also, the author says that the "genes in question, BRCA1 an BRCA2, often
appear in cancer patients." In fact, every human being always has those genes,
but they become mutated in often stereotyped ways in cancer patients.

Back in my Ph.D. days the scientists I worked with were pretty much unanimous
in thinking these patents should be overturned — they very strongly hinder
basic scientific study and medical analysis. And they're not a patent on a
method, or a type of analysis, or anything like that — just a patent on a
straight-up in vitro copy (and not the method for copying!). I don't see any
economic value in protecting that at all when a first-year grad student had
the skills to do that from a human DNA template decades ago.

~~~
refurb
I'm curious, how do such patents hinder basic research? Patents forbid
commercial exploitation of a discovery; when I was doing basic research we
routinely used materials that were patent protected.

If remember correctly, it is codified into law that you can use patented
materials or processes in basic research.

~~~
chii
patenting something that (i assume) is a basic component of other "products"
is what's being objected to. Sure, you can _use_ the patented
product/idea/method in your research, but the end result is that you cannot
commercialize the research if it becomes patent encumbered (or not profitable
to do so), and thus the eresearch never get funded in the first place!

------
carbocation
This is the money quote that summarizes the view of ~everyone in clinical
care:

“You have to ask, how is it possible that my doctor cannot look at my DNA
without being concerned about patent infringement?” Christopher Mason,
assistant professor at Weill Medical College, told The Guardian.

~~~
rayiner
Would the doctor have known what gene sequences to look for if Myriad hadn't
done the R&D and published the results?

~~~
carbocation
> _Would the doctor have known what gene sequences to look for if Myriad
> hadn't done the R &D and published the results?_

That question implies a very confused version of history. BRCA1/2 were
discovered by NIH-funded researchers at universities. Some of these co-
discoverers went on to found Myriad. Other co-discoverers, such as Mary-Claire
King, did not.

Also, after the first large-scale GWAS studies in the late 2000s, a high
school student with enough funding could have discovered the BRCA1/2 - breast
cancer association.

~~~
twoodfin
Lots of patented technology starts out at universities via (at least some)
public funding. Typically, the university demands a cut of the patent
royalties. It's no one's fault but the NIH if their grants don't come with
similar strings attached.

~~~
carbocation
> It's no one's fault but the NIH if their grants don't come with similar
> strings attached.

That's also an ahistorical comment. Prior to Bayh-Dole, federal research
funding obligated discoveries to be assigned to the government. Post Bayh-
Dole, universities get to pursue patents even if the discovery was publicly
funded.

So you actually cannot blame the NIH; you could blame Congress.

~~~
twoodfin
Fair point. So you think Bayh-Dole is worth repealing or modifying? A quick
read through the Wikipedia article certainly makes it sound like a reasonable
policy (for example, licensing is mandatory) and demonstrably preferable to
the previous regime.

~~~
carbocation
Bayh-Dole applies to so many things beyond my realm of knowledge that I don't
know that I currently have a thoughtful idea of whether or how I would amend
it, if given the chance.

I was simply pointing out that one can't blame the NIH for the lack of
stipulations on their grant money.

------
deletes
>>Runi Limary, a 36-year-old breast cancer survivor, told USA TODAY that one
of the patented genes showed up in her body when she was 28. Suspecting
ovarian cancer, she debated having her ovaries removed, but couldn’t get a
second opinion because Myriad held a patent on the mutated gene that she
developed.<<

What ! ?

~~~
rayiner
Myriad has a patent on a medical test that uses the presence of particular
mutations to screen for cancer.

~~~
carbocation
Myriad has a patent on the BRCA genes in isolation. It does _not_ have a
patent on just a test. If it did, then nobody would care, because we could
perform alternative tests to acquire the same information in a different, non-
infringing way.

------
belorn
>The group claims that the patents violate the First Amendment by restricting
the free exchange of ideas on human body parts.

It will be interesting to see this argument being handled in the Supreme
Court. If looking for a specific gene is patentable, it comes very well into
the definition of patenting a purely mental operation.

In a comment about patents two days ago
(<https://news.ycombinator.com/item?id=5540438>), I linked to a talk which
also brought up the fist Amendment issue with patents, and how it connect to
software patents. You can also just read it (and thus jump directly to the
related parts) in this transcript:
[http://moglen.law.columbia.edu/twiki/bin/view/LawNetSoc/Bils...](http://moglen.law.columbia.edu/twiki/bin/view/LawNetSoc/BilskiAndBeyondTranscript)

------
magicalist
ars technica has considerably better coverage here:
[http://arstechnica.com/tech-policy/2013/04/will-the-
supreme-...](http://arstechnica.com/tech-policy/2013/04/will-the-supreme-
court-end-human-gene-patents-after-three-decades/)

------
kislayverma
As ridiculous as this patent attempt is by itself, I find it even more
amusing/alarming that an American court is seen as the appropriate body to sit
in judgement of the human genome.

------
loudin
Well, this is frightening. Common sense dictates that human genes should not
be patented, but with the current climate in this country, I'm not sure if
common sense will prevail.

------
hcarvalhoalves
I await the day the headline will be:

"Supreme Court to decide if anything can be patented at all"

------
kunai
Ridiculous.

Oftentimes, on HN, discussion entails personal anecdote, personal opinion, and
an onslaught of agreement and disagreement, usually completely unrelated to
the article in question.

I think, however, that it is unanimous that the patent thing is completely
spiraling out of control. Not only are patent trolls completely stifling
innovation, but patents, as indicated here, are proving to be more harmful
than good.

Intellectual property is not property. What you think is not something you
own. Nobody owns ideas; trying to patent them is as absurd as you can get.

A quote from the late Aaron Swartz sums it up brilliantly.

<http://www.aaronsw.com/weblog/000829>

~~~
rayiner
To play devil's advocate: what incentive does a private company have to do all
the lab work necessary to identify a particular gene sequence as being
predictive of cancer and make it publicly known? Without patents, Myriad
would've just kept the gene sequence in question secret instead of publishing
it. Would someone have rediscovered the proper sequence before Myriad's patent
term would've expired? What would be their incentive to share it?

~~~
loudin
This is why medical and scientific research should not have profit motives
attached to them. It creates perverted incentives like the situation you
describe above.

~~~
penny500
What would incentivize people to actually go into research if that were the
case? Our best would all be bankers, lawyers, and mobile app developers.

~~~
VLM
Lawyers are a bad example as they don't run on profit based accounting,
typically. More of a fee for service arrangement. There do exist some lawyers
with for-profit side businesses, or solely work for a for-profit business, but
they're probably outnumbered by law firms + sole proprietor service provider +
employed by non-profits + employed by .gov

There is no obvious reason other than tradition and cultural goals that a
lawyer has to be paid $200/hr instead of $20/hr, ditto no reason a postdoc
biomedical researcher has to be paid $30K/yr instead of $300K/yr. The supply
of STEM grads is too high leading to low pay and the supply of lawyers is too
low leading to high pay, but if you can convince the kids to select different
majors, go ahead.

We live in a central govt controlled economy. If you have control of the
government, which we probably don't, then you can also select the priorities.

It also has the assumption that profit is the only reason why people work.
Simple salary arrangements work pretty well for most people, as does contract
work. Some other ways people make money without profit include prizes (Nobel,
etc) and being cultural heros (pro sports athletes, unfortunately definitely
not biomedical research scientists)

Finally some people just love the subject area and will voluntarily starve
their family, look at any STEM other than CS/IT/high level applied medical
(aka hospital dr cardiologist etc). I would not bet on it, or demand that only
people taking a vow of poverty are "real" scientists or whatever. But there
always will be some nuts willing to eat Ramen every night for the rest of
their lives.

~~~
bob13579
Sorry, but law firms operate for-profit. Partners are the owners of those
firms and don't give away their profits to charities at the end of every
fiscal year. This is quite a ludicrous assertion. Several partners at top law
firms pocket several million a year outside of their client fees. For many
lawyers from top schools, making partner is the ultimate goal because of the
potential windfall.

[http://www.law.com/jsp/ca/PubArticleCA.jsp?id=1202588541180&...](http://www.law.com/jsp/ca/PubArticleCA.jsp?id=1202588541180&Revenue_Growth_Modest_at_Many_Firms_But_Profits_Surge&slreturn=20130314205804)

~~~
VLM
I think the problem is I'm using "profit" as an accounting term and you're
using it as a synonym for "money".

