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Gene patents probably dead worldwide following Australian court decision
- guard-of-terra 11y agoIt is very reassuring that after 20 years of software patent debates courts decided to not start this over with genes.
- onewaystreet 11y ago> This is a result that will have major practical consequences, and is likely to save thousands of lives. No, companies will stop doing research now.
- 298219640 11y agoIf companies stop doing research then the research can be done by universities or similar institutes.
- kybernetyk 11y agoYes, but no university can afford to take the research results, make a cure from it and bring it to market. The regulatory overhead literally devours billions of dollars to get a new medicine approved. And if a company can not expect to have some exclusive rights on that for at least a few years no one is going to spend that money. Competitors could just take your medicine, copy it and sell for lower because they had no upfront costs of getting it approved. The economics behind pharmaceuticals are perverted - but at least they work.
- JulianMorrison 11y agoThe government can, though. And should.
- 298219640 11y agoOdds are the "make a cure from it" part would be a human invention and therefore patentable. And even if all "cures" are no longer patentable - society wants cures to diseases. So if the system isn't delivering cures society will change the approval system[1]. It's not like the current approval process was handed down from god on stone tablets. 1) Or change patent law to cover discoveries from nature.
- refurb 11y agoOdds are the "make a cure from it" part would be a human invention and therefore patentable. That's a use patent and it's inferior to a composition patent. Look at what's happening to Pfizer in the UK. They had a use patent on Lyrica, but no composition patent on it. That means anyone is free to make the drug. You can't really stop a doctor from using a drug for a certain disease if it's freely available.
- caf 11y agoHere we're not talking about medicines with ruinously expensive approval processes, though; we're talking about gene-based diagnostic tests. Non-invasive diagnostic tests don't have anything like the same kinds of regulatory hassles, because there isn't a question of side-effects - it's purely a question of how accurate they are.
- CamperBob2 11y agoMore likely they'll come up with a rhetorical workaround that makes perfect sense to judges, patent attorneys, and poorly-informed juries from the Australian equivalent of East Texas. With software patents, for instance, there may be no way to claim ownership of Algorithm X in a given jurisdiction's patent system, but there's probably no obstacle to claiming "A machine that executes Algorithm X." The problem then becomes tractable: just write the claims in such a manner that they cover all practical implementations of such a machine, present or future. It will now be the job of the company's patent counsel to come up with a similar artifice to claim ownership of any conceivable test or diagnostic process that involves specific BRCA genes. I'm sure they'll pull it off, somehow. Failing that, the company's lobbyists will simply ensure that the next regional or global trade agreement mandates that each ratifying nation implement gene patents.
- guard-of-terra 11y agoYou know. I can live with that, even if it's true. You know what I cannot live with? My genes being owned by somebody else.
- kybernetyk 11y ago>No, companies will stop doing research now. That's what I'm worried about, too. For example C60 [1] is a curious molecule that can't be patented anymore. In a rat study it showed to prolong the rats' lives by over 90% [2] by protecting the rats from cancer. Sadly there won't be any human study anytime soon (if at all) because it's just not financially viable without the possibility of patenting the stuff and extracting fantasy prices for it. [1] https://en.wikipedia.org/wiki/Buckminsterfullerene https://en.wikipedia.org/wiki/Buckminsterfullerene [2] http://www.kurzweilai.net/fullerene-c60-administration-doubles-rat-lifespan-with-no-toxicity http://www.kurzweilai.net/fullerene-c60-administration-doubl...
- JulianMorrison 11y agoGovernments need to directly fully fund studies in promising but unpatentable medicines.
- rmc 11y agoThere's enough billionares who want to live forever. They'll fund it, if only so their own lives last longer.
- JulianMorrison 11y agoYou'd be surprised. It's hard to get people to fund SENS anti-ageing through which they could literally live forever. In general, humans don't have a survival instinct, only a "don't die right now" instinct.
- flipp3r 11y agoYou should read the comment section of the second link. The badly done research was done by someone whose business is selling snake oil with c60 in it.
- kybernetyk 11y agoHmm, interesting. Has anyone here access to the referenced paper [1] and can confirm that "Anthony Loera" worked on it? [1] http://linkinghub.elsevier.com/retrieve/pii/S0142961212003237?via=sd http://linkinghub.elsevier.com/retrieve/pii/S014296121200323... Ref.: Baati T, et al., The prolongation of the lifespan of rats by repeated oral administration of [60]fullerene, Biomaterials (2012), doi:10.1016/j.biomaterials.2012.03.036
- Intermernet 11y agoFrom https://en.wikipedia.org/wiki/BRCA1 https://en.wikipedia.org/wiki/BRCA1 "The first evidence for the existence of such a gene was provided by Mary-Claire King's laboratory at UC Berkeley in 1990. Four years later, after an international race to find it, the gene was cloned in 1994 by scientists at University of Utah, National Institute of Environmental Health Sciences (NIEHS) and Myriad Genetics." Myriad Genetics are the sole licensee of the patent. They weren't solely responsible for it's discovery, or successful cloning. From https://en.wikipedia.org/wiki/Myriad_Genetics#BRCA1_co-discoverers https://en.wikipedia.org/wiki/Myriad_Genetics#BRCA1_co-disco...: >BRCA1 co-discoverers National Institute of Environmental Health Sciences (NIEHS) University of Utah Research Foundation Université Laval/Endo Research – Quebec The Hospital for Sick Children – University of Toronto University of Tokyo Myriad Genetics, Inc. >BRCA2 co-discoverers University of Utah Research Foundation The Hospital for Sick Children – University of Toronto University of Pennsylvania Myriad Genetics, Inc. The research was done by many organisations, not just "companies", and was done with no guarantee of profit. There are some researchers who are actually altruistic, and believe in medical progress to save lives.
- lololomg 11y agoI literally can't tell if you're serious or if you're being sarcastic
- belorn 11y agoDoes that mean that National Institutes of Health can also shut down its research, saving some $30 billion in taxes to go elsewhere? Here we have tax money that funds universities and researchers, and apparently 20 years patents are required to find uses from all that work. Lets also forget that passing drug test also grants additional state granted monopolies as a way to encourage just the very scenario stated above.
- hliyan 11y agoIt's good to see a rational decision with regards to science coming out of Australia. Aussies have been getting too much bad rap due to the Abbot government.
- eru 11y agoWe just tossed Abbott. Let's see if that helps.
- shoo 11y agoHe wasn't tossed, his party threw him out. We still have to wear the shame of collectively permitting those bastards to be voted in to federal government. They're still there.
- caf 11y agoHis party gave him the arse because polling showed he was seriously on the nose with the electorate and had been so since shortly after his election.
- DomreiRoam 11y agoI think this press [1] release of the institut curie gives a lot of information. other press release can be find here [2]. [1] http://www.institut-curie.org/sites/default/files/myriad-genetics-predisposition-breastt-cance.pdf http://www.institut-curie.org/sites/default/files/myriad-gen... [2] http://www.institut-curie.org/press-release/by-type/377 http://www.institut-curie.org/press-release/by-type/377
- pjc50 11y agoThat's dated 2008?
- DomreiRoam 11y agoYes but at this time the institut who is specialized in cancer had done lots of research and was very against the privatization of the public research and that the researcher couldn't research further because of this patent. The Curie institut reacted to the patent as a research institution, here we have the impact on a practical health issue.
- mirimir 11y agoNow, if we can just agree that natural products and traditional cures can't be patented. India has been fighting hard for that.
- ekianjo 11y agoIf we could kill patents altogether that would be a much nicer step. Patents are an invention from another Era and make absolutely no sense nowadays, and we see them constantly abused to make our lives worse in the end.
- Cyph0n 11y agoNo it wouldn't. Talented people would have little incentive to create something new.
- noir_lord 11y agoTalented people created things for thousands of years before patents.
- Cyph0n 11y agoPeople have lived thousands of years without refrigeration.
- CamperBob2 11y agoRefrigeration is an excellent example of something that could have easily been developed and refined without patent protection. Consumers win when innovators compete with each other. Patents replace market competition with a foot race.
- oldmanjay 11y agoand yet somehow we have more technical innovation now than we ever did outside of a patent system. there is a lot of emotional and assertive speculation around this issue but all of the hard facts that are available very strongly suggest patents work despite occasional (if highly publicized) conflict. how does your theory accommodate that fact?
- deleted 11y ago[deleted]
- personjerry 11y agoAlthough we might be clear on what we perceive to be the right ruling, it is not always so simple. For example, what if we claimed in software that any software program, given that it is merely a series of bits, is therefore merely a number, and thus a "product of mathematics" not produced by man?
- lifeisstillgood 11y agoCopyright is far and away the best IP category for software - I strongly argue it is a form of literacy anyway. And I am not convinced there is any mathematics outside the mind of humans - it's an odd one, but is not maths a model of the world rather than the world itself?
- taylorfinley 11y agoSome would argue there are no human minds outside of math (Max Tegmark, for example)
- thaumasiotes 11y ago> is not maths a model of the world rather than the world itself? This isn't right. It sounds like a very "the unreasonable effectiveness of mathematics" view of things. Any model of anything is math. The world is bound by the math, not the other way around.
- Bouncingsoul1 11y agoSomething like this https://en.wikipedia.org/wiki/Illegal_number https://en.wikipedia.org/wiki/Illegal_number ?
- personjerry 11y agoYeah, that's exactly what I was drawing on. I'm suggesting it as an arguably similar situation where we appeal to "nature" to deny patents. I brought it up because I think that HN might be more likely to consider software as "ownable" but DNA as not, which could seem like an arbitrary distinction (until we really get to a better reason than "nature").
- amelius 11y agoDoes this mean that Monsanto's patents are also invalid?
- tectec 11y agoI would think that Monsanto's patents are quite different. They use plant breeding to create new varieties. These patents of Myriad Genetics are just using DNA sequencing to find existing genes.
- vesinisa 11y agoI agree with your view that Monsanto is unlikely affected, but the article is quite misleadingly named. With "gene patent" I immediately think of Monsanto. But this ruling seems to only affect those who claim exclusive right to discovering properties of existing genes - not those who create organisms with unique genetic properties, like Monsanto.
- searine 11y agoNo. Monsanto created novel genes, based on real ones.
- hibikir 11y agoMonsanto patents are more complicated than that though, as you can see by searching the USPTO. The enzyme is patented, the genes that produce it are patented, the introduction of those genes into a specific cultivar are patented, and crossings between their varieties and any other variety are patented. So, even if one of the patents was invalidated, the rest would still make it pretty difficult to commercialize anything. Say you get the DNA sequence that will provide enzymes to protect from glyphosphate, and the patent is invalidated. You still have to introduce that sequence to a bacteria, introduce it into a plant in a way that expresses the gene, and then do enough crossings to make sure it doesn't interfere with the rest of the plant's functions. So, even from the Monsanto patent, it's probably 8 years of work before you can sell anything. And by then, the market has moved forward.
- icanhackit 11y agoLooking at some of the for and against arguments regarding patents, let's play a mental game: would new, valuable things still be created if the patent system didn't exist? I think yes. The creator wouldn't necessarily benefit directly, but in a way we all indirectly benefit from new technology and ideas. Much the same as it would be better for the poor to have free or affordable essential health care, our society would have more able-bodied and able-minded people to work or even conduct themselves in a way that didn't transmit their illness, whether physically or through dependance. By leaving the weak weakened, we indirectly transmit that ailment to others by physical and economic forces. You're only as strong as your weakest point.
- mtgx 11y agoThat's nice, but if I'm Turing Pharmaceuticals or Microsoft, I probably don't care about all of that, and I only care about my immediate gain and exploitation of the patent system.
- icanhackit 11y agoSo perhaps the innovation could be in the process, not the result?
- epmatsw 11y agoI think that's a misleading question. I don't think anyone is arguing that all innovation would go away if the patent system was removed. However, it seems possible that innovations that require high initial investment and low ongoing costs (medications, gene patents, etc.) would be produced at a lower rate if the incentives the current system provides were removed.
- icanhackit 11y agoit seems possible that innovations that require high initial investment and low ongoing costs (medications, gene patents, etc.) would be produced at a lower rate Good point, I don't necessarily disagree. But is a lot of the R&D to get around existing patents, rather than build a new thing entirely? In the software world I think we can safely say yes. Regarding medical research I'm not qualified to say. I'd love to hear from anyone with some insight.
- stillsut 11y agoPatents are a trade: you get an 18 year monopoly for public disclosure of how your innovation works. In societies that lack patent protection, much innovation becomes a trade secret guarded against public use for generations, think China and the silk trade. By removing patents, you remove the incentive to make public how your medicine works. That, actually sounds scarier to me than temporary price mark ups.
- Gatsky 11y agoI think the fears that this will stifle innovation are greatly exaggerated. In fact, this patent was stifling innovation. Because of the expense, we have tested far fewer patients than we could have for BRCA1/2 mutations, and there thus remain many mutations of unknown significance that can only be resolved with more detailed clinical annotation from testing many more people. It's a classic case of a patent hampering the usefulness of an invention, so that someone can make money. Myriad really were relentless opportunists with very well fed lawyers. The idea of a patent on a gene is completely nonsensical to anybody working in genomics these days. I can pay $1000 and sequence all 3 billion base pairs of my DNA. Using open source software and publicly available databases funded by governments and charities I can analyse my own DNA. What role does a gene patent have in any of this? What if I discover that I have an unreported variant in the patented gene? Can I now patent my own version of the gene, and charge my offspring a license fee for reproducing this gene each time one of their cells divide? Do they pay extra if they are homozygous? Soul-destroying patent disputes have become a feature of the life sciences, it drives me mad. The story is always the same. A scientist performing research in a seemingly unimpressive field discovers something interesting. They generously publish their rough results because that's how science works. Then someone else comes along and refines it a bit before slapping a patent on it, because nobody else has yet. 20 years of legal battles ensue. Companies are still fighting over the PCR patents for example, even AFTER the patents have expired [1]. Now it looks like the same crap is going to transpire with CRISPR. The funny thing about these cases is that most of the research and innovation happens at the beginning, before the patents are even in operation, again questioning the notion that patents foster innovation. As has been pointed out many times before, it is rare for a biotech/life sciences company to generate the kind of profit that permits them to do blue sky research. Most of that happens from government funded work. Big pharma doesn't really count, it costs them too much to develop each drug. They certainly don't have anything akin to Bell Labs, Xerox PARC or Google X. Anyway, Myriad actually doesn't have any products any more. All the extremely simple tests they do can be run by anyone. They offer a whole lot of 'services' like genetic counselling and patient education, but that's all to create a veneer of legitimacy and hide the fact they are patent trolls. I feel sorry for their scientists trying to do research in this environment. [1] http://en.wikipedia.org/wiki/Polymerase_chain_reaction#Patent_disputes http://en.wikipedia.org/wiki/Polymerase_chain_reaction#Paten...
- daveloyall 11y agoI first read "gene patients probably dead".
- mcv 11y agoDid Myriad really claim to own the gene itself as their invention? If so, there are a lot of people who'd probably like to sue them for infecting them with that invention. It seems to me that all Myriad could possibly patent, is a unique detection method for that gene. But that wouldn't stop anyone from using a different detection method. But what interests me more about this case is that the article expects an Australian court decision to be taken as global jurisprudence. What's the logic behind that? And is that really where we're headed?
- AnimalMuppet 11y ago> But what interests me more about this case is that the article expects an Australian court decision to be taken as global jurisprudence. What's the logic behind that? I wondered that, too. But in a parallel comment, ihodes pointed out that this was already ruled unpatentable by the US court system. Courts do keep an eye on decisions from other nations; if they find the logic convincing, they're likely to adopt it. So if the US and Australia are following the same logic, it's likely to be adopted pretty much universally.
- legohead 11y agoThe article mentions that the US Supreme Court already denied them a patent. The fact another well-developed country has denied them solidifies the ruling.
- dbbolton 11y agoSCOTUS struck down patents on naturally occurring gene sequences themselves and decided that the "mere isolation" thereof cannot be patented: https://en.wikipedia.org/wiki/Ass%27n_for_Molecular_Pathology_v._Myriad_Genetics,_Inc.#Decision_of_the_Supreme_Court https://en.wikipedia.org/wiki/Ass%27n_for_Molecular_Patholog... However, "artificial" sequences can be. I'm not aware of any test cases that establish boundaries on the difference though. It would be logical to assume you'd have to alter the nucleotide sequence to the extent that the resulting peptide or protein is not naturally occurring (e.g. changing a TTT codon to TTC wouldn't suffice, since both will ultimately be translated into phenylalanine). Contrary to this reasoning, complementary DNA is patentable in the US on the grounds that it's "not naturally occurring". So, if you take the mRNA corresponding to an un-patentable DNA sequence and mix it with a few enzymes and nucleotides that react in a deterministic fashion, you can then patent the sequence of the final product: https://en.wikipedia.org/wiki/Complementary_DNA https://en.wikipedia.org/wiki/Complementary_DNA In a gross oversimplification, it's almost as if the court said: "you can't patent natural English words, but you can patent the ROT13 versions of them". But regarding methods, the majority opinion clearly said they're fair game (just as you can't patent gold, but you could patent a novel approach to mining or extracting it) and there are several valid examples in the US today: https://en.wikipedia.org/wiki/Biological_patents_in_the_United_States#Gene_patents https://en.wikipedia.org/wiki/Biological_patents_in_the_Unit...
- ihodes 11y agoAn odd title; this patent was already struck down by the Supreme Court of the USA in 2013[0]. Now it's no longer valid in Australia. The cost of tests for BRCA1/2 mutations is dropping dramatically; were the medical apparatus of the USA not so drastically broken, the cost to consumers of this test would today cost the consumer around $50 US. This is thanks largely to the ACLU and some geneticists in NYC, including Harry Ostrer. [0]: https://en.wikipedia.org/wiki/Myriad_Genetics#Association_for_Molecular_Pathology_v._Myriad_Genetics https://en.wikipedia.org/wiki/Myriad_Genetics#Association_fo...
- matt_heimer 11y agoDoes anyone know how the medical test at the heart of this legal issue compares to something like the raw data from 23andme? 23andme v4 gives you 25 SNPs for BRCA1 and BRCA2.
- ihodes 11y agoA comprehensive test looking at the BRCAs may deeply sequence sequence the entire gene(s); spanning around 150 thousand base pairs. You'd not only want to look for SNPs, but novel SNVs, and various structural variants (SVs) and copy-number variants (CNVs). I don't know the most common class of mutations for BRCA1 and 2, so it may be the case that a smaller, cheaper panel could be nearly as effective as well.