Looks like the US Supreme Court has decided that isolating a gene does not mean that you can patent that gene.
PDF of the decision (full of brain-hurty legalese) here.
What do you think of the decision? I think it makes a hell of a lot of sense, but I’m not an expert in the field.
That’s the best news I’ve heard all day. The whole idea that a human gene could be patented was completely insane on the face of it.
Makes perfect sense to me. You didn’t create the gene, so why should you be able to patent it? OTOH, genes that were created in a lab can be patented, because they’re not something that ocurrs naturally.
The best part of this will be how much this will annoy Craig Venter.
makes unanimous sense to me.
I agree with all of the above.
Yes, how can you claim to have *invented *something that was there all along?
There must be some reason this decision wasn’t obvious. I wonder what it is.
This isn’t at all my field, but the decision makes sense to me. The court pointed out that the law recognizes other ways in which innovation can still be rewarded commercially, such as a patent on a particular method of doing something.
I wonder what effect this will have on basic research into isolating genetic markers (or causes) for various diseases. Big biotech companies may be less inclined to put their money behind the isolation of a gene if they can’t profit from it directly. On the other hand, smaller labs may be able to get more research done if those patents are no longer in the way.
It was a unanimous decision, so apparently it really was that obvious.
I just wonder why it took so long to get this decision. Such patents should have been laughed out of every court they were ever exposed to, assuming they even got past the patent office to begin with.
In the case of Myriad, their patents were actually stifling research and innovation. They didn’t invent gene isolation, at the time they filed with the US Patent office other research institutions had made the same discovery and clinical labs were performing the genetic test - without a patent. Myriad just got to the US patent office first and basically shut down every one else. Up until that point, scientists around the world were sharing information by forming the International Breast Cancer Linkage Consortium (BCLC) in 1988 to speed up the pace on identifying gene mutations.
Discovering the existence of a gene (or mutation) and determining it’s biological function is not an invention, but discovering basic biological facts. Myriad may have laid the last brick, but the wall was built by the scientific efforts of many (with the contribution of public funding). Conferring sole property rights to whoever runs the last leg of the race is unfair to everyone else who ran in the relay.
It’s one thing to make a new scientific discovery (which is generally built on collaborative knowledge in a long line of scientific effort) and quite another when that knowledge is used to develop new products, whether it be pharmaceuticals, diagnostic testing or the iPhone.
The Federal Circuit has seldom met a patent it didn’t like, so litigation-happy patent holders have historically seen a good percentage in going for the appeal if they lose in a district court. Effectively, that means that any major patent suit is going to drag on for a while.
The last few smackdowns from the Supremes may be getting to them, though. The CLS Bank vs Alice Corp decision was messy, but it went against the patent holder. I don’t think it would have a few years ago. The recent actions from the President also suggest that the pendulum may be swinging back toward sanity.
Wouldn’t the implications of this decision not being made lead to the possiblity of people who are found to have the patented gene being subject to litigation for having the gene in question?
No, because the genetic BRCA 1&2 mutation does not exist in isolation in people. In order to test for it, the gene must be isolated in a lab. That’s what the whole argument hinged on, Myriad claims that by isolating the BRCA1&2 gene in order to test for mutations, it had created a new “product”, since genes don’t ‘naturally’ exist in isolation.
Keeping in mind that gene sequencing and gene isolation has been going on for some time, Myriad did not invent these processes. In the early 90’s, scientists from around the world were studying and discovering the sequencing of genes linked to breast and ovarian cancer. Myriad was just the first to completely sequence BRCA1&2, which enabled them to isolate it first and then run out and patent it.
This patent essentially provided Myriad a monopoly over diagnostic testing for the BRCA 1&2 mutations linked to heritable breast and ovarian cancer susceptibility. So, only other labs testing for BRCA1&2 mutations could be served with a cease and desist or patent infringement litigation (which Myriad is guilty), not the actual patients with the mutation.
It’s the right decision. Companies can profit enough from patenting their particular testing methodology, which they do invent; there’s no reason to allow them to control a gene sequence as well, which they most certainly did not invent.
Darn, I was just about to run out and patent spleens! 
Obviously, I think the SCOTUS decision is the right one, and a welcome dose of sanity.
Does this imply people may have died because Myriad sought to restrict/monopolize testing?
If that can be shown, and since the courts have repeatedly ruled that corporations have the same rights as people, can we expect murder charges to be filed against Myriad?
There’s no suggestion that Myriad withheld its test from any patient.
Moreover, everything that Myriad did to obtain and protect its patent was permissible under the law at that time.
Keep in mind, too, that as much as this decision seems intuitively correct, it’s far from clear what this decision will do for the development of medical innovation. As I mentioned, the court suggsets that there would have been other ways for Myriad to recoup its investment in the development of this test, but the Justices are not scientists and they can’t really know whether any such alternative truly would have worked in this instance or in similar cases. In the long run, it may be that the ultimate result of this decision will be to reduce new testing and treatment.
Oh, then the word “monopoly” was mis-used?