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My appearance at the Pioneer Awards is part of a longer trip that includes three days in Cedar Rapids, Iowa as guest of honor at ICON 35: A Steam Powered Convention of the Future -- they're footing the bill to get me from London to the USA. I'll be doing a post on ICON later, but I wanted to mention them here -- without their support, I couldn't do the EFF event.
The suit was brought by the ACLU and the Public Patent Foundation, who argued that US Patent and Trademark Office was wrong to grant patents on genes, as these are not patentable subject matter. The judge agreed, saying that gene patents are patents on a "law of nature" and called the isolation of genes and filing patents on them "a lawyer's trick that circumvents the prohibition on the direct patenting of the DNA in our bodies but which, in practice, reaches the same result."
Which sounds to me like a precedent against all patents that rely on isolated genes. Of course, this isn't over: the pharma/biotech stalwarts interviewed in the linked NYT piece are talking appeal, and I'm sure they'll try to go all the way to the Supreme Court.
I think that the problem here is in the untested idea that imparting exclusive rights to the genome will incentivize more research than allowing anyone to build on discoveries in the genome. It's clear that some exclusive rights provide an incentive so some people to do work. But these exclusive rights also scare off people who have good ideas but are worried about being bankrupted by someone who beat them to the patent.
Combined with that is the natural abhorrence many of us feel at the thought that genes might be patented. Genes aren't a good subject for propertization. Your genes aren't even yours -- you didn't create them. Your parents didn't really create them, either. You're your genes' steward, as are we all, and so many of us have a strong intuition that when someone else claims to own something from our genome, they're being ridiculous, or evil, or both.
Myriad Genetics, the company that holds the patents with the University of Utah Research Foundation, asked the court to dismiss the case, claiming that the work of isolating the DNA from the body transforms it and makes it patentable. Such patents, it said, have been granted for decades; the Supreme Court upheld patents on living organisms in 1980. In fact, many in the patent field had predicted the courts would throw out the suit.ACLU Challenges Patents On Breast Cancer Genes: BRCA
Judge Sweet, however, ruled that the patents were "improperly granted" because they involved a "law of nature." He said that many critics of gene patents considered the idea that isolating a gene made it patentable "a 'lawyer's trick' that circumvents the prohibition on the direct patenting of the DNA in our bodies but which, in practice, reaches the same result."
The case could have far-reaching implications. About 20 percent of human genes have been patented, and multibillion-dollar industries have been built atop the intellectual property rights that the patents grant.
(Image: Dna rendering, a Creative Commons Attribution (2.0) image from ynse's photostream)
The cellphone business is patented up to its eyeballs. Dumped at ground zero in the wasteland of owned ideas, newcomers typically have to pay as much as ten percent of sales to the old guard. Apple declined Nokia's invitations to give it money, and as a result is now the target of a lawsuit filed by the Finnish manufacturer. Read the rest
Read the rest