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Breast cancer genes ruled unpatentable (by NY district court) (aclu.org)
40 points by mmastrac on March 29, 2010 | hide | past | favorite | 12 comments

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.

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?

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.

Yes, that's positively evil. Almost like patenting eating: don't want to die of hunger? Pay me money for the right to eat.

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

Ruling available here: http://www.aclu.org/files/assets/2010-3-29-AMPvUSPTO-Opinion...

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."

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.

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.

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

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

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

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

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