Federal Judge Rules Against Patenting the Sun

A while ago, I described how previous decisions allowing the patenting of human genes–and thereby making cheap, affordable diagnostics impossible–flew in the face of the goal of federally-funded research. There’s no reason to patent something and charge thousands of dollars for something a high school student could do (PCR and sequencing). From The NY Times (boldface mine):

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.

“If a decision like this were upheld, it would have a pretty significant impact on the future of medicine,” said Kenneth Chahine, a visiting law professor at the University of Utah who filed an amicus brief on the side of Myriad. He said that medicine was becoming more personalized, with genetic tests used not only to diagnose diseases but to determine which medicine was best for which patient.

Mr. Chahine, who once ran a biotechnology company, said the decision could also make it harder for young companies to raise money from investors. “The industry is going to have to get more creative about how to retain exclusivity and attract capital in the face of potentially weaker patent protection,” he said.

No, the reason the ‘industry’ will run into problems is that they’re trying to patent something with is now the technological equivalent of the stethoscope. Like I mentioned, a high school student with adequate supervision could do this. And keep in mind, most of these companies didn’t discover these disease-specific mutations, NIH funded researchers did. Which brings us to this:

Edward Reines, a patent lawyer who represents biotechnology firms but was not involved in the case, said loss of patent protection could diminish the incentives for genetic research.

“The genetic tools to solve the major health problems of our time have not been found yet,” said Mr. Reines, who is with the Silicon Valley office of the firm Weil, Gotshal & Manges. “These are the discoveries we want to motivate by providing incentives to all the researchers out there.”

I assure you, federally funded researchers at universities and private institutes have more than enough incentive to do this research. The real problem here is that many hospitals and most doctors are not doing simple molecular biology techniques, commonly done in high school laboratories, as part of standard practice (i.e., PCR, invented in 1986, and sequencing). One could make and sell kits for this to provide standardized reagents, but the profit margins would be much lower.

Oh, I see.

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1 Response to Federal Judge Rules Against Patenting the Sun

  1. Chirs S says:

    Spooky: I wrote the following in 2001.
    “Microarrays have become the modern equivalent of the microscope, and one can imagine the day when they supplant the stethoscope too”.
    So, this time only, I agree with you Mike. This story (debate) is going to float around for yonks however.

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