Court rules breast cancer gene patents invalid. What does this mean for GM foods?

Ruling on a challenge brought by the ACLU, a New York court ruled yesterday that the patents held by Myriad Genetics on the BRCA1 and BRCA2 breast cancer genes are invalid. Myriad held the rights to all genetic testing involving these genes, making their use in breast cancer diagnosis subject to patent law. In the US, that meant that the tests involving BRCA1 and BRCA2 were either 1) unavailable, or 2) a lot more expensive.

The judge ruled that genes are discovered, and not invented, and therefore can’t be intellectual property.

The article points out that this could have enormous implications for patents held on human genes, all of which must now be called into question. This is self-evident.

I was wondering, though, if this might go even further (assuming that it won’t be successfully appealed, and you can bet there are whole buildings full of high-dollar lawyers drafting an appeal as we speak).

I know most people here are probably aware of similar patents held by Monsanto in particular on some genes, and their predatory (and largely successful) efforts to monopolize the entire agricultural sector. Their efforts to buy up seed distributors and replace what had, for 10,000 years, been natural, common property, with genetically-modified seeds that must be rebought every planting season are, IMO, the very essence of what is wrong with an absolutely free, unregulated market. Monsanto seems to want to control nothing less than the entire food supply, and they’re going about it from an ecologically classic way: bottom-up. If you control the plants, you control the food web.

For a broad, relatively well-cited treatment of Monsanto’s gene-patent sneakiness, take a look at this (yes, it’s a blog, and I do not vouch for all the particulars on the page, but it’s fairly accurate stuff).

This places humans and the natural world in an untenably precarious bondage to corporate interest, and I’d love to see Monsanto’s back broken, free market be damned in this case. They are, excluding the many valid ecological arguments, patenting that which has, throughout history and across all cultures, the common property. It should stay that way.

So, do you think this decision (once again, assuming it holds up under appeal) will have broader implications outside of strictly human genetics?

One “out” I can see for GM-plants companies is, unfortunately, that their products ARE, in fact, invented and not discovered (if you consider introducing a few genes here and there as “invention”).

Seems to me a GM-food is patentable. It is not “discovered” but rather invented. Nature did not produce it, some company did.

Well said. Michael Pollan makes a good argument in The Omnivore’s Dilemma for why the free market does not work for our food supply.

So far as I am aware, Monsanto does not prevent any farmer from using ordinary, natural, “common property” corn.

Monsanto offers farmers genetically modified corn, corn which is more robust and disease-resistant. They do not do this for free, because they are not a public charity. You apparently believe that all of Monsanto’s researchers should work for a pittance, so as to deliver this great boon to mankind for no cost, or your feel that you should be the one to decide how much they are allowed to make.

If you wish to use Monsanto’s rpoduct, pay them for it. If you wish to use regular, ordinary corn, you can have that for free.

You want Monsanto to work for a price you decide, and apparently believe that the next great discovery will still happen somehow, even though other companies will see that you stole Monsanto’s work in the name of the “public good.” Those other companies are going to be smart enough to come up with another brilliant innovation, you hope, but stupid enough to not worry about your stealing it, too.

Is that about the size of it?

Agreed. This should be a general principle for patents. It must be something new is created, not observed. The same should apply for human, animal, or plant genes as well as mechanical inventions. You shouldn’t be able to patent the waterfall, but you could patent a better water wheel to put under it. You shouldn’t be able to patent electrons, but you should be able to patent a way to use them make a better scanning device.

A given gene might not be patentable, but a plant assembled them ought to be - or else, what is patentable? Electrons are discovered, and transistors are public domain, but the mere fact that the elements are not patentable doesn’t mean that a circuitboard assembled from them can’t be.

Except for the fact that Monsanto GM products have repeatedly contaminated other crops. It’s a little hard to use regular, ordinary corn when you can’t find any because it’s all been cross-pollinated by GM products.

It’s even rougher when Monsanto then sues you for illegally growing their corn.

Yeah, your argument is a fairly standard one. Unfortunately, it goes quite a bit deeper than that. Monsanto is working very hard to establish a horizontal monopoly on seed sales in the US heartland. They’ve already bought up most seed distributors and are working on the remainder. This means that farmers have almost no choice but to buy Monsanto products. In addition, they are actively suing farmers for incidental invasions by GM crop plants (this is defensible under the most narrow possible reading of the law, but Monsanto and everybody else knows that the invasions are not the result of the farmers actually planting the patented plants, but of cross-pollination with GM plants.)

Monsanto is also working on their monopoly from other angles, such as successfully lobbying legislatures for seed treatment laws that make traditional, accepted forms of seed cleaning and storage illegal. Thus far, 16 states have such predatory laws on the books. This makes your cavalier “if you don’t want Monsanto products, don’t buy them” viewpoint not only impractical, but outright illegal. Farmers in these states have no choice but to either 1) pony up several million dollars to meet prohibitive and onerous standards that were introduced to kill competition, or 2) buy Monsanto products. Free market, my ass.

Unfortunately, these practices are the very tiniest tip of the iceberg where Monsanto is concerned.

I’ll ask you to stop putting words in my mouth, thank you very fucking much. I, in fact, believe that the world can’t afford what you describe as the “next great discovery” from the Monsantos in either economic, legal, or ecological terms. There are many, many reasons why the free market is fatally flawed when it comes to the food supply, and in a few decades, when food crop biodiversity is even lower than it is now (and even now, we depend on monocultures to feed the world, which is completely unsustainable long-term), and the Red Queen catches up to us, as it inevitably must, we’re going to wish we had invested in diversification.

I work in the biotech sector and have raised this point for years, genes are discoveries, not inventions, and thus should not be patentable (not to mention the fact that sequencing a gene is trivially easy, anyone “moderately skilled in the art” can do it if they have the equipment ).
I’m less familiar with the ag biotech world that Monsanto dominates, but the key would seem to be that their crops are modified, which would indicate patentability. The practices linked in the article seem to be less about patent law than about antitrust , back room lobbying, shakedown lawsuits and other such tactics that any number of large companies engage in.

There is an interesting aspect of this that I’m not qualified to comment on and that’s the cross-pollination issue. What are the legal ramifications for violating a patent through absolutely no action or inaction of your own, and in fact can’t even detect without analysis that an average farmer would not normally do?

A plant that never existed until you created it, sure. Even if you take an existing plant and insert a new gene, that should be patentable as well. But if you find a plant, or even just a gene, in nature you should not be able to patent. Maybe you could patent a novel use of the plant or gene (like yeast with human insulin producing genes, for example) but you should not be able to patent something that existed before you went looking for it.

If you discover an existing gene in my cells that grant increased resistance to HIV and then proceed to patent, when I have children have I violated your patent?

So far, Monsanto is suing the pants off of them, successfully. The farmers usually settle out of court, because they can’t afford a legal battle with a corporation like Monsanto.

I am in total agreement and freely admit that I have no knowledge whatsoever of the process Monsanto went through to discover/create/invent their superseeds.

I also think that there really ought to be some clear legal defense against cross-pollination contaminating your plants - if the government did that it would be entrapment or something, wouldn’t it? Creating a product that spread by itself to intrude on their property and basically plant the evidence of the crime on them, and then prosecuting them for the invasion that they had nothing to do with.

How does this not all run afoul of antitrust laws?

On top of that it was my understanding that farming has, by-and-large, become corporate farming. Not many of the single farmers going it alone left. I would think the likes of Archer-Daniels-Midland (ADM) would easily have deep enough pockets to rival Monsanto and take them to task for gouging them.

Or put another way why are giants like ADM kicking back and letting Monsanto get away with this?

I agree that if Monsanto crops have contaminated other crops, then Monsanto has little room to complain.

But I assume YOU agree that if farmers buy Monsanto one year, and then seek to use it in subsequent years in violation of their agreement, the farmers have no leg to stand on. Right?

They should sue Monsanto for contaminating their crops.

Anyone using GM seed must take measures to prevent cross pollination (which I admit is probably impossible so there ya go).

Of course. and if a jury were to be convinced that this had happened through no fault of the farmer, they would clearly find in favor of the farmer.

But Monsanto has sued 140 farmers since 1997 - less than 14 lawsuits per year - and they have never had a verdict go against them. Not once. One of Monsanto’s public commitments, in fact is to never exercise their patent rights where trace amounts of their patented seeds or traits are present in a farmer’s fields as a result of inadvertent means.

So could you give me an example of a case where someone has, through no fault of his own, been accused by Monsanto for entirely innocent conduct?

I freely admit I can’t. This isn’t my field.

Fair enough.

Perhaps Ogre can provide such examples, then. Monsanto itself says they don’t do that, and not one of their court victories has come about under such conditions. So… cite?

Percy Schmeiser. The Canadian court was convinced by expert testimony that seed probably would not have dispersed as far into his fields as it did under normal conditions of being blown off a passing truck, and that these sources would not reasonably explain the concentration of RR plants in his fields.

However, I do not believe they considered the matter of pollination, which is a naturally-occurring phenomenon. Essentially, Monsanto won the suit on the strength of the fact that plants with the RR gene were found on his property, but they never established that Schmeiser put them there (instead, they went into some detail about an anonymous tip that Schmeiser’s field-hand had been seen putting a bag of seed into “an old Ford truck”, and ruled that he “ought to have known” it was patented seed. What nonsense.)

Also, I see what you did there, Mr. Lawyer. Most suits have ended out of court, with a non-disclosure agreement, so there wouldn’t have been a “court victory” to cite.

I think it’s worth noting that Monsanto’s (arguably) abusive behavior regarding their products is a separate issue from the creation and patenting of those products. The fact that the people who own these patents are assholes shouldn’t, ideally, enter into the debate about whether these patents are justifiable. As with nearly any law, there’s certainly room for abuse, and it behooves us to try to prevent these abuses when possible, but surely the possibility shouldn’t invalidate the entire concept.

As for the issue of patenting genes, I find myself on the fence. I can see both sides’ points. That’s obviously not a terribly useful point of view to articulate in a debate, which is why I’ve stayed out of it until now. I will say that it’s easy to carry it to ridiculous extremes in other, non-agribusiness ways, as well:

I used to work in a lab where we tested for mutations in the apoE gene. These mutations have been shown to correlate to two separate conditions: Alzheimer’s disease and high cholesterol. The Alzheimer’s link was discovered privately and patented. The cholesterol link was discovered publicly, and no patent applies. Because of this, we were only able to test patients who were interested in their cholesterol status. The reports we sent back could only talk about that side of things, despite the fact that the exact same information was also informative of the patient’s Alzheimer’s risk. If they were worried about that, they would have had to go pay another institution a no doubt higher price to run the exact same test that we did and give them the exact same result. Bizarre. We used to have doctors calling us, asking us, “This is the same mutation as is implicated in Alzheimer’s, right?” And we’d have to tell them that we couldn’t legally say anything about that, despite the fact that it’s all out in the literature.