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I can understand being able to patent how they find out what is in those genes, but I can't, for the life of me, understand how they can patent the genes themse

I can understand being able to patent how they find out what is in those genes, but I can't, for the life of me, understand how they can patent the genes themselves, such that nobody else can do anything that includes those genes. The second question I have is what is wrong with the appeals court and patents? They have been overturned many times by SCOTUS. Who is populating that court and why are they so in favor of patents?

rayiner 14y ago
Ironically, it's because a number of the Federal Circuit judges have technical backgrounds and worked in industry. The two judges in the majority in this opinion, Lourie and Moore, have a PhD in chemistry from U Penn and a BS/MS in Electrical Engineering from MIT, respectively. My engineering degree is in a non-CS field, and I have found that outside the software realm, scientists and engineers generally view the patent system positively. I think the Supreme Court, who isn't caught up in whether some specific process is technically like another process that's already patentable, is looking more at the broader ethical implications of certain types of patents.
zmmmmm 14y ago
There is so much hyperbole from both sides. The important thing to understand is that they are absolutely not patenting "genes" as such, despite what any sensationalist headline might read. From the article: "Myriad's argument is that when it isolates the genes by removing them from the body, this process changes their chemical structure, and the company's test looks for this distinct chemical form" So they are saying they are patenting not the gene, but a different compound that is produced by transforming the gene. They do not test the gene for BRCA mutations but the secondary compound. Having said this, I find this patent frightening because by definition, if their secondary compound is sufficiently different to the gene itself then it should be quite simple to work around this patent. However it is not; if it was, people would not be forced into paying $3000 for every breast cancer test. I do not believe that the entire medical community is too stupid to come up with a workaround. It has to be that this "secondary" compound is a trivial transformation of the DNA that occurs as a natural consequence of just about any attempt to extract it. If it wasn't, people would just be extracting it a different way and there wouldn't even be a court case. So I see the principle of this being generally OK but the specific case being wildly wrong.

rayiner 14y ago

Ironically, it's because a number of the Federal Circuit judges have technical backgrounds and worked in industry. The two judges in the majority in this opinion, Lourie and Moore, have a PhD in chemistry from U Penn and a BS/MS in Electrical Engineering from MIT, respectively. My engineering degree is in a non-CS field, and I have found that outside the software realm, scientists and engineers generally view the patent system positively. I think the Supreme Court, who isn't caught up in whether some specific process is technically like another process that's already patentable, is looking more at the broader ethical implications of certain types of patents.

zmmmmm 14y ago

There is so much hyperbole from both sides. The important thing to understand is that they are absolutely not patenting "genes" as such, despite what any sensationalist headline might read. From the article: "Myriad's argument is that when it isolates the genes by removing them from the body, this process changes their chemical structure, and the company's test looks for this distinct chemical form" So they are saying they are patenting not the gene, but a different compound that is produced by transforming the gene. They do not test the gene for BRCA mutations but the secondary compound. Having said this, I find this patent frightening because by definition, if their secondary compound is sufficiently different to the gene itself then it should be quite simple to work around this patent. However it is not; if it was, people would not be forced into paying $3000 for every breast cancer test. I do not believe that the entire medical community is too stupid to come up with a workaround. It has to be that this "secondary" compound is a trivial transformation of the DNA that occurs as a natural consequence of just about any attempt to extract it. If it wasn't, people would just be extracting it a different way and there wouldn't even be a court case. So I see the principle of this being generally OK but the specific case being wildly wrong.