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View Diary: Genome Redacted? (48 comments)

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  •  What's the difference between this and (1+ / 0-)
    Recommended by:
    Larsstephens

    discovering a new species in the wild and then patenting it?

    •  Do you have a non-obvious use for (0+ / 0-)

      the new species?

      If you do, you can patent that as well if you discover it and make a compelling case to the patent office.

      For example, the BRCA gene that the ACLU is all worked up about is not patented per se, what is patented is the use of this gene in a medical diagnostic assay.  

      •  If I discover a new species, (1+ / 0-)
        Recommended by:
        DawnG

        then all its uses are new.

        •  No, not necessarily (0+ / 0-)

          the first use that you, as a person (I assume) would likely come up with would be to eat the new species . . . .

          Based on the history of humankind of eating pretty much anything, that is a completely obvious use of the new species and would not be patentable.

          •  I don't think that you know anything about this. (1+ / 0-)
            Recommended by:
            Larsstephens
          •  let's take an example from the real world. (5+ / 0-)

            This kid in Canada (14 I think) does a science fair experiment where he discovers a microorganism capible of eating plastic.

            Why should he be able to obtain a patent on that microorganism when it exists in nature?  The kid didn't change the organism to enable it to eat plastic, he just discovered that it does.  I can understand patenting a specific process that uses that micro oranism to break down plastic, but you can't patent the organism ITSELF.  

            Surely.

            Right?

            You are entitled to express your opinion. But you are NOT entitled to agreement.

            by DawnG on Tue Aug 18, 2009 at 03:48:09 PM PDT

            [ Parent ]

            •  That's pretty much exactly right (0+ / 0-)

              the kid can patent the use of the microorganism for eating plastic . .. . and like you say, not the bug itself.

              That's the same situation with patenting genes - for example the BRCA gene the ACLU is riled up about - the gene itself is not patented in any usual sense of the word, what is patented is the use of the gene in a medical diagnostic assay.

              If you are able to isolate this very same gene from your body and show that it can power race cars - for example - that's a completely different application and you almost certainly could patent that notwithstanding the previous patent wrt cancer detection.

              •  the kid can patent... (3+ / 0-)
                Recommended by:
                Roadbed Guy, OHdog, Larsstephens

                ...a specific process of using the mircoorganism, but surely can't patent all "plastic eating" uses for it.

                That'd be like patenting a goat for general use in weed control.  Goats eat weeds.  It's what they do in nature. Why is it you can patent what an organism naturally does?

                it doesn't make sense to me.

                You are entitled to express your opinion. But you are NOT entitled to agreement.

                by DawnG on Tue Aug 18, 2009 at 03:59:42 PM PDT

                [ Parent ]

                •  I suspect that if you were the first (1+ / 0-)
                  Recommended by:
                  Mike S

                  person to discover that a goat ate weeds, you might be able to patent that and raise herds of goats to compete with your local gasoline powered lawn control experts.

                  Of course, 17 years later, your patent would expire and everyone's goats could start eating weeds . . .

                  In any event, this use for a goat is completely well known and obvious so it can not be patented.

                  OTOH, if you wished to use a goat for pharming, that would be quite patentable I would think

      •  According to (0+ / 0-)

        the US Patent Office:

        ...any person who "invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent," subject to the conditions and requirements of the law. The word "process" is defined by law as a process, act or method, and primarily includes industrial or technical processes. The term "machine" used in the statute needs no explanation. The term "manufacture" refers to articles that are made, and includes all manufactured articles. The term "composition of matter" relates to chemical compositions and may include mixtures of ingredients as well as new chemical compounds. These classes of subject matter taken together include practically everything that is made by man and the processes for making the products.

        •  The entire patent law manual is thousands of (0+ / 0-)

          pages long - I'm not really sure what posting this short snippet is supposed to mean??

          •  The key part (0+ / 0-)

            of the passage is practically everything that is made by man and the processes for making the products, which explains why you can't get a patent on the solar system or a newly discovered species, and why you shouldn't be able to get a patent on a DNA sequence.

            •  Maybe you should read up on Taq polymerase (0+ / 0-)

              which is a natural enzyme (isolated, IIRC, from a bug obtained from a hotspring in Yellowstone Park of all places) that was patented for doing what it does naturally (i.e., synthesizing DNA at high temperature).

              There was a lot of grumbling over this patent in the biomedical research community, but that did not negate the fact that it exemplifies the concept that things that are natural can be patented if a novel use can be found for them (in this case, PCR . . ..).

              Citing 0.000001% of the patent code notwithstanding . . . .

              •  Thanks for the tip. (0+ / 0-)

                Among other things, I find this:

                In December 1999 U.S. District Judge Vaughn Walker ruled that the 1990 patent involving Taq polymerase was issued, in part, on misleading information and false claims by scientists with Cetus Corporation. The ruling supported a challenge by Promega Corporation against Hoffman-La Roche which purchased the Taq patents in 1991. Judge Walker cited previous discoveries by other laboratories, including the laboratory of Professor John Trela in the University of Cincinnati department of biological sciences, as the basis for the ruling.

                It occurs to me that this is not the same thing as the object of the ACLU suit.  DO you disagree?

                In addition, out of curiosity, I'd like to ask why you appear to be so antagonistic to the ACLU per se.  Or is that just my incorrect perception?

                •  The fundamental similarity is that (1+ / 0-)
                  Recommended by:
                  rhutcheson

                  in both cases something found in Nature was patented.  Or, more specifically, the entity itself was not patented, but a use for it was.

                  Beyond that, the ACLU is out in some fantasy land claiming that the gene itself was patented in some nebulous way that prevents futher use or study in any way. That's not true at all  (as has been discussed to death already in the comments to this diary).

                  IIRC, the objections to the Taq patent were more grounded in reality and did not hinge on some nebulous concept that natural occurring things should/could not be patented.  Rather, the claim was that the ability of Taq to synthesize DNA at high temperature was already known to the scientific community, in essence it was in the public domain, and thus could not be patented for that reason.  

                  •  So your disagreement is not (0+ / 0-)

                    with the suit itself, but just with the description in the diary?

                    •  I would have no objection to the suit (1+ / 0-)
                      Recommended by:
                      rhutcheson

                      if it was being filed by an organization (a competing company, perhaps?) with an appropriate interest in removing restrictions on the use of BRCA as a diagnostic for cancer.

                      Just why the ACLU has opted to get involved in the murky world of patent disputes in biotechnology - an area it appears to know next to nothing about based on the descriptions they provide in the links given in the diary - is just plain bizarre for a political organization.

                      All that I can see that they are doing is taking something very narrow (one company using one gene for one purpose) and - to put it bluntly - fearmongering based on the scientific ignorance of the general population, that corporations can now own the genes inside of all of us.  I really have no idea why they are doing this - fundraising and publicity, I presume. The bottome line is that they really, really need to stick to what they're known for (e.g., politics and human rights . .. ).

                      •  If there's no standing, then the suit will be (0+ / 0-)

                        dismissed, I assume, but you never mentioned that until now.  Sounds more like your beef is against the ACLU itself.  If so, why?

                        •  The thing about all of this is that (0+ / 0-)

                          the generic issue of whether or not genes can be patented has been settled for many years.

                          So, rightly or wrongly, there is now completely watertight precedent that genes can - for specifically-defined purposed - indeed be patented.  

                          This basic fact was hashed out over a decade ago after (IIRC) Craig Ventner (perhaps the biggest asshole/publicity hound currently in science for whatever that's worth) was involved in efforts (based on NIH-funded research) to patent something like 20% of the human genes that had been sequenced up to that time (ca. 1990).  

                          Of course, this attempt generated a huge uproar - leading to lively debate on topics such as "is patenting genes legal?" "is patenting genes ethical" etc etc.  Regardless of anyone's personal feelings on this issue, the basic concept that genes *can* be patented became well-established to the point that scholarly, retrospective-type books are now available on this topic.

                          Thus, the ACLU has to know that their current efforts are entirely futile from a legal POV (in fact, if you look for their legal brief - available at one of the links supplied in the diary - it reads like it was written by a high school intern without a legal *or* scientific background.  Compared to one written by a $6000 an hour lawyer who actually has a scientific background (which is quite a rarity for a lawyer, hence the high cost) who are employed to write legal complaints when the complainant is actually serious about winning.

                          Essentially, this whole things smacks of a sophomoric publicity stunt well below what you'd expect of a rather esteemed organization such as the ACLU.  I'm still scratching my head as to what the "real" motivation is . . . .

                          •  The ACLU site (0+ / 0-)

                            gives a different perspective than yours

                            1. citing plantiffs who clearly have standing and scientific expertise, among them: Association For Molecular Pathology, American College Of Medical Genetics, American Society For Clinical Pathology, and College Of American Pathologists; and
                            1. giving statements of support from what sound to me to be reputable organizations, including International Center for Technology Assessment, Council for Responsible Genetics, Center for Genetics and Society.

                            But again, can you tell me if you have some grudge on this issue and/or this organization?

                          •  Did you read their complaint? (1+ / 0-)
                            Recommended by:
                            rhutcheson

                            available here

                            It is simply just so much gibberish.

                            For example - and I hope this will be an easy-to-understand example - claims 51 and 98 directly contradict each other

                            Claim 51 claims that genes taken out of a cell are *exactly the same* as genes inside of a cell in all respects including their functions.

                            Then Claim 98 (more correctly, btw) claims that genes interact with each other (and a vast array of other cellular components, btw) in complicated and undefined ways.  Well no, that can't be true if #51 is accurate in that genes are in every way identical inside a cell (where they can interact with other genes) and in isolated form outside the cell (where they cannot).

                            You'd think that they'd at least be able to get somebody to proof read this document for internal consistency. . . .. right now, it's gotta be an embarrasment to the academic researchers they lined up to support them (in the earlier claims).

                          •  I'm going to read the complaint now. n/t (0+ / 0-)
                          •  I've looked at the complaint (0+ / 0-)

                            and at Myriad Genetics' patent #7250497 "Large deletions in human BRCA1 gene and use thereof" in which the assignee claims, among many items, "1. An isolated nucleic acid comprising SEQ ID NO:6, and the complement thereof."

                            I'm not competent to assess the patent and IANAL.  However, I can read, so I was struck by the passage in the ACLU complaint which states that Haig Kazazian, the Seymour Gray Professor of Molecular Medicine in Genetics in the Department of Genetics at the University of Pennsylvania School of Medicine

                            "received a cease and desist letter from defendant Myriad as a result of work that was being done in the Genetic Diagnostic Laboratory of the Department of Genetics.  The laboratory directed by Dr. Kazazian was and is prohibited from doing routine screening for BRCA1 and BRCA2  genes for research or part of clinical practice without Myriad's permission as a direct result of the patents challenged by this action.

                            This passage alone seems to indicate standing and puts to doubt your claim that the patents do not interfere with legitimate clinical and academic processes.

                            So again, I'm wondering why you are so adamant in your attack on this issue.

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