I patent your ass. And your leg. And your nostril.

April 2nd, 2010 by Ben Goldacre in bad science, legal chill, patents | 38 Comments »

Ben Goldacre, The Guardian, Saturday 2 April 2010

This week the Association for Molecular Pathology, working with the American Civil Liberties Union, won a major victory, overturning just some of the patents owned by a company called Myriad on the BRCA1 gene for breast cancer. There are three reasons why gene patents like these are stupid: only the last one is funny.

Patents in general are a sensible idea, because people are more likely to invest in innovation if they believe it will give them a competitive advantage over other people, and because patents allow people to share their discoveries safely, instead of monetising their advantage by keeping a discovery secret. But patents also act as a barrier to innovation, and gene patents bring these disadvantages into stark relief.

Different people have slightly different forms of the BRCA1 gene, and these confer different risks for breast cancer, so doctors like to run tests and see which form you have. Myriad were not granted a patent on these tests: instead they got a patent on the BRCA1 genes themselves, which are out there, present in humanity, and naturally-occurring parts of our bodies. This has had a chilling effect on clinical activity and research.

One of the plaintiffs in the case against them, for example, is a patient who had a BRCA1 test from Myriad, and would like it independently verified by someone else’s test of the same gene. She cannot have such a test: in the US, only Myriad are allowed to offer BRCA1 tests (and they charge over $3,000). The company have gone after people developing tests for risk of cancer using the BRCA1 gene, and this has retarded the development of new tests.

In fact, a survey in 2003 of all leading laboratory directors in the US looked at the extent of this research chill in all areas of medicine from gene patents, and found that 53% had “decided not to develop or perform a test/service for clinical or research purposes because of a patent”. This is not surprising, since a study from 2005 found that about a fifth of all the 23,688 genes in the human genome – the code that makes up you – have already been patented.

But these tests are just the tip of the research iceberg. Almost all basic science research on the BRCA1 breast cancer gene over the past 12 years has infringed Myriad’s patent, and although the company has tended not to go after basic science researchers, they have never promised that they won’t in the future, so this academic research on a major risk factor for a major killer – the most common cancer in women worldwide – continues only with Myriad’s indulgence, making it risky and uncertain work.

But that’s only the half of it.

A paper titled “Metastasizing patent claims in BRCA1″, just published in the journal Genomics, examines the true extent of the BRCA1 patents granted in 1998, and they are laughably absurd. The authors examine patent #5,747,282. This makes claim to any sequence of 15 nucleotides, the “letters” of the genetic code, coding for any part of the protein made by the BRCA1 gene (and if you can’t understand that last sentence, then you’re as ignorant as someone who has never read Coleridge).

First they calculate how absurdly broad this claim is, from first principles. There are about 1.6 million different 15-nucleotide sequences that could code for some part of the BRCA1 protein. There are 1.07 billion possible different 15-nucleotide sequences in total. Therefore, this patent covers roughly one in every 600 of all imaginable 15-nucleotide DNA sequences. Since a typical human gene is a sequence of about 10,000 nucleotides, then on average (if you assumed that human genes were random strings of nucleotides) you would expect every human gene to contain about 15 of the 15-nucleotide sequences claimed under the BRCA1 patent.

Then they tested their model against reality: in a giant computing task, they took all the 15-nucleotide sequences from the BRCA1 gene, and searched for them, just on chromosome 1: they found 340,000 matches, roughly the same as their theoretical prediction, and the equivalent of 14 infringing sequences on every human gene. The BRCA1 gene, incidentally, is on chromosome 17.

The claims in this patent therefore extend, if properly enforced, to almost every single gene, in every single person on the planet. There is a moral and practical argument to be had about patenting nature, but the rights conferred in this patent are basically absurd.


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38 Responses



  1. Sili said,

    April 5, 2010 at 1:32 pm

    Well, if Myriad owns BRCA1, why are they not responsible for the cancers caused by their gene?

    I know that doesn’t make any sense whatsoever, but since when has that ever mattered to the law. I say the poor women and other patients like her, sue Myriad for their medical costs.

  2. SteveGJ said,

    April 5, 2010 at 2:34 pm

    I’m of the view that US patent law is in as much need of reform as English libel law. Quite apart from the bizarre notion of being able to patent a gene (rather than a treatment), US patents can be taken out on software and business processes leading to a huge rash of speculative wide-ranging patents of dubious merit being taken out. There is now a whole class of patent trolls sitting on ideas, hoping to make it rich when a sympathetic judge grants them rights. Indeed this is the business plan of several companies who have no interest in producing products themselves.

    As with the libel law, the defendent of any infringement is often in the position of incurring huge legal costs where it is often cheaper to settle out of court. The wording of software patents and the infringment claims are often so wide as to make it near impossible to work out the merits of either.

    The US also introduces a whole range of other limitations – in most countries, basic R&D are not covered by patent. Academic and commercial organisations can quite happily perform research in the area, provided they do not sell (or give away) products which infringe on the license. To ban such “infringing” research would, if taken to its logical conclusion, mean that prospective competitors would be at a huge disadvantage when the patent finally runs out as they would have been unable to perform research in that area.

    As with UK libel law, the US patent system appears to be designed to make lawyers richer and entrench embedded advantages.

    The whole patent system was originally produced to encourage innocation. Where it is clearly acting as a way of suppressing it through the favouring of established interests, then it has moved from its original, intended purpose to one that does not serve society. Unfortunately the US (followed by the UK and many European countries) are following the route of for eve extending the scope of IPRs. Once IPRs start favouring a powerful and favoured subset of society, they are acting against the public interest.

  3. skyesteve said,

    April 5, 2010 at 3:40 pm

    Sorry – I’m completely stumped here. I understand how and why you can patent a test for a particular gene, genetic code, biochemical agent or whatever but how can you patent something that is part and parcel of human anatomy? Does this mean I can patent the heart which means only my company can do ECGs, echocardiograms, coronary angiograms, cardiac enzymes, etc., etc.? Or maybe I could patent the human brain such that no-one is ever allowed to think about anything without my permission? Come to think of it, I’d quite like that if it only applied to politicians…

  4. walks with tench said,

    April 5, 2010 at 5:30 pm

    What is Coleridge?

  5. phayes said,

    April 5, 2010 at 7:09 pm

    “Patents in general are a sensible idea, because people are more likely to invest in innovation if they believe it will give them a competitive advantage over other people, and because patents allow people to share their discoveries safely, instead of monetising their advantage by keeping a discovery secret. But patents also act as a barrier to innovation, and gene patents bring these disadvantages into stark relief.”

    An often unjustified (and rather silly) belief. And this is where it all goes horribly wrong on both sides of the argument: patents in general may or may not be a sensible idea – it seems a plausible hypothesis (at least to anyone unfamiliar with the reality of the real world patent system and its effects) – but quite likely, in general, they are not a sensible idea. As the famous quote by Machlup/Penrose goes: “If we did not have a patent system, it would be irresponsible, on the basis of our present knowledge of its economic consequences, to recommend instituting one. But since we have had a patent system for a long time, it would be irresponsible, on the basis of our present knowledge, to recommend abolishing it.”

    Gene patents, in general, don’t bring the disadvantages of the patent system into stark relief any more than do e.g. semiconductor, early aeronautical, steam engine or software patents. On the other hand Myriad’s BRCA patents /are/ highly illustrative of some of those disadvantages.

  6. pberry said,

    April 5, 2010 at 10:16 pm

    Patently absurd.

    OK pun aside, if everyone ignores a law does it make it unenforceable? There appears to be a completely different form of mass trespass going on here…

  7. psonic said,

    April 5, 2010 at 10:17 pm

    So does it follow that a woman who has a baby that has the BRCA1 gene is thereby infringing Myriad’s copyright?

  8. slm said,

    April 6, 2010 at 12:08 am

    I’m afraid you folks are not thinking big! I want to patent oxygen and all its derivatives. Every breath you take, your royalties belong to me. Oh, I forget, does alcohol incorporate any oxygen molecules?

    I’m going to be so rich.

    And I agree, the existing patent laws are a mess.

  9. PlasticManc said,

    April 6, 2010 at 12:56 am

    To paraphrase the opening:
    Patents are a sensible idea, so here is why they’re rubbish… They encourage innovation, and here’s how they cripple innovation…

    As members of a society will we only ever innovate or “do science” when we are hoping to materially benefit from a direct consequence? Have individuals who made discoveries purely for the love of it never become wealthy and successful anyway (and define wealth)? Does this blog exist only so Ben can get rich off it or because it gives him a “competitive advantage”?

    I am really growing to dislike the word “monetize”. Also I was interested to discover that on googling the words “we cannot eat money”, the first result is the full text of the quote on the bmj website.

  10. iantanner said,

    April 6, 2010 at 1:23 pm

    Ben,
    And the 3rd (funny) reason was…….? (unless i missed something!) Or was it getting ‘Ass’ into your headline?

  11. Steve Halsall said,

    April 6, 2010 at 3:22 pm

    Just as with Simon Singh’s libel case, this illustrates the dangers of allowing scientific arguments to be judged by people who might have no basic understanding of what they are talking about. Scientists are required to work within the framework of the law. Lawyers should be required to work within the framework of science, and if they don’t know what that is, they should be obliged to get a scientist to tell them.

    On another note, Phayes, I’m not sure why you have such a strong objection to patents. With no patents, the business model for every company would be to wait, watch, don’t research, then steal the idea. Since your costs would automatically be lower (none of that expensive research to cover), you would have an instant competitive advantage over the inventing company. So no private research would ever be done, and the government would have to do all of it. OK, maybe that is what you prefer, but I’m not sure that fixing the patent system is the best argument for nationalising the entire research system across all fields.

  12. phayes said,

    April 6, 2010 at 4:49 pm

    @Steve Halsall

    I didn’t actually express a strong objection to patents but your characterisation of the consequences of abolishing them is – to put it bluntly, sorry – (economic) nonsense anyway. There is quite a nice primer available for free download here: papers.ssrn.com/sol3/papers.cfm?abstract_id=642622

  13. metascrawl said,

    April 6, 2010 at 6:56 pm

    you really don’t like humanities graduates do you? on my english lit degree i learned a lot more about theories of knowledge (what constitutes it, who owns it, how it can become a commodity) than about wavey-haired romantic poets.

  14. kensol said,

    April 6, 2010 at 11:47 pm

    There is a complete misunderstanding of the issue here. The gene was not patented and naturally occurring things are not patented. What was patented was an “isolated DNA coding for a BRCA1 polypeptide” having a particular amino acid sequence. Isolated DNA does not occur in nature. Moreover, the isolation per se is not enough to make it patentable either. For the isolated DNA to be patentable, it must be new and not obvious from the “prior art.” If that particular DNA had never been isolated before, the isolated DNA new. So the next question is whether the isolated DNA is obvious. Although isolation of other types of DNA is known, the isolation of the particular DNA in question may still not be obvious from those prior isolations. It may be that the old isolation techniques do not work for this DNA and so some inventiveness was required for it. Or it may be that out of the many, many types of DNA, the inventors were the first to find one or one group that has a very important benefit not provided by the others. Any of the many, many types of DNA could be isolated, but the inventors found a reason to select this type of DNA or this group of DNA out of those many, many to isolate. This is really no different from finding a naturally occurring compound present in a minute quantity in a particular plant in the Amazon that cures cancer. Any of the compounds in any of the plants could be isolated –provided that you first knew which to isolate. However, the invention lies in figuring out that if just the right compound out of the thousands of compounds in in just the right plant species out of thousands of plant species is isolated, it can be used to cure cancer. Or maybe this illustration is clearer: You find that one of the thousands of different types of molecules in your special herbal tea –a molecule found only in that tea– cures cancer if it is given in a dose of one gram. However, only a microgram of it is present per cup of the tea. No one can drink the thousand cups of tea needed for that dose. Therefore, you isolate the compound from the water and other tea components. Once the compound is isolated, it can be used in all sorts of ways to provide the needed dose. A gram of it can be put in a capsule. A gram can be put in a drink. A gram can be injected. In other words, you figured out something no one knew or suspected that out of the thousands of compounds in the tea, this one present in only microscopic quantities, can be isolated from the rest to provide a new product that can be used in all sorts of ways to cure cancer –something that in its prior state was not possible or even imaginable. Or maybe it prevents rust. Or disinfects. Or . . .

    Finally, note that the mere fact that the claims cover many species does not make something unpatentable. A patent for a telephone can cover telephones made out of thousands of different materials or that come in a thousand different colors. That doesn’t make it unpatentable if the materials or colors are not related to the patentable aspect, nor should it. Similarly, you might find that molecules that include a particular functional group at one end can do something wonderful. Let’s say, kill anthrax. It might not matter what groups are at the other end of the molecule, far away from the special functional group, is. Millions of different groups can be attached to that other end of the molecule. The point is that your invention is the use of the functional group to kill anthrax and the other end of the molecule is irrelevant. Should someone be permitted to avoid your patent by simply making an irrelevant change to the other end of the molecule?

  15. Filias Cupio said,

    April 7, 2010 at 5:15 am

    “There are about 1.6 million different 15-nucleotide sequences that could code for some part of the BRCA1 protein.”

    How do you get this? BRCA1 has 1863 amino acids (www.ncbi.nlm.nih.gov/protein/AAC37594.1), so 3×1863=5589 nucleotides, so 5589-14 = 5575 15-nucleotide sequences. For every SNP (single nucleotide polymorphism) which occurs in the gene we need to add another 15 to this number*. Even with a generous allocation of SNPs, we aren’t getting close to 1.6 million.

    (If we include the introns, the BRCA1 gene has length 78422 nucleotides, still way short of 1.6 million.)

    *Theoretically, if two SNPs occur within 15 bases of each other, this multiplies the possibilities. In practise, linkage disequilibrium will prevent these extra possibilities from occurring.

  16. phayes said,

    April 7, 2010 at 6:25 am

    @kensol

    “There is a complete misunderstanding of the issue here. The gene was not patented and naturally occurring things are not patented. …”

    The complete misunderstanding of the issue is yours. Real people, as opposed to patent lawyers, don’t actually care very much about the fine distinctions in patent law and because the exclusion of pure discoveries etc. from patentable subject matter are combined with a (to outsiders) counter-intuitively low standard of non-obviousness, the distinctions are often without a practical difference. That said, you are not even correct in asserting that the gene sequence itself was not patented. As is clear from the patent claims² and as the (fully qualified) patent lawyers who wrote the BRCA complaint¹ stated: “The patents cover the genes themselves.”

    ¹ www.aclu.org/free-speech/brca-complaint
    www.aclu.org/free-speech/brca-genes-and-patents#05

    ² “What is claimed is:

    1. An isolated DNA coding for a BRCA1 polypeptide, said polypeptide having the amino acid sequence set forth in SEQ ID NO:2. …”

    www.patentstorm.us/patents/5747282/claims.html

  17. Tehn said,

    April 7, 2010 at 11:43 am

    @Filias Cupio

    I’d guess they use any sequence of fifteen nucleotides that code for part of the protein whether the codons are the ones found naturally or not, it looks like the patent would cover that.

  18. Filias Cupio said,

    April 7, 2010 at 12:53 pm

    @Tehn

    Hm, rough calculation: assume that always 3rd codon possition is 4-fold degenerate, 1st and 2nd nondegenerate. A 15 base sequence has 5 3rd codons, and so 4^5=1024 synonymous sequences. We needed to go from 5500 to 1.6 million, a factor of about 300. Yep, that would about do it.

    However, I can’t imagine what use you could make of a 15 base sequence which decoded to the right proteins, but wasn’t actually in the BRCA1 gene. You couldn’t use the DNA to detect which BRCA1 allele someone was carrying. It would be like not only patenting eel-filled hovercraft, but also patenting all possible sentences expressing “my hovercraft is full of eels”.

  19. Deasun said,

    April 7, 2010 at 1:53 pm

    Filias – “It would be like not only patenting eel-filled hovercraft, but also patenting all possible sentences expressing “my hovercraft is full of eels”.”

    That indeed is the implication of the arguement and the extent of the patent.

  20. Deasun said,

    April 7, 2010 at 1:54 pm

    Argument that is…

  21. kensol said,

    April 7, 2010 at 4:10 pm

    @phayes

    You say that the misunderstanding is mine because “[r]eal people, as opposed to patent lawyers, don’t actually care very much about the fine distinctions in patent law . . .” Isn’t that what I said, that your so-called “real people” are having a misunderstanding? You further state that I am “not even correct in asserting that the gene sequence itself was not patented. As is clear from the patent claims² and as the (fully qualified) patent lawyers who wrote the BRCA complaint¹ stated: ‘The patents cover the genes themselves.’” First, I never said anything about whether the gene sequence itself was patented. Second, look at the claims you yourself quoted to prove your point: “An isolated DNA . . .” That is supposed to prove that it is claiming not an “isolated DNA”? And, of course, the “fully qualified” patent lawyers who drafted the complaint would dismissively describe the claims in a way most favorable to them. That is supposed to prove something?

  22. kensol said,

    April 7, 2010 at 7:42 pm

    @phayes

    BTW, I just checked. Although you aver that the lawyers who “wrote the BRCA complaint” were “fully qualified” patent lawyers (plural), I just took a look and out of the five signatories, I see only one who is a registered patent lawyer. The complaint also explicitly recognizes and admits that the claims do NOT cover genes in their native environment, but rather “isolated” DNA.

  23. prion said,

    April 9, 2010 at 2:45 am

    “One of the plaintiffs in the case against them, for example, is a patient who had a BRCA1 test from Myriad, and would like it independently verified by someone else’s test of the same gene. She cannot have such a test:”

    That’s no different to quite a few pathology tests. Troponin T for MI and the entire principle of its measurement (Roche) springs to mind (OK Troponin I is also available, but that’s no use in neonates, for example). There’s also free light chain measurement which is increasingly important in myeloma, and is only offered by Binding Site. I can think of plenty of others past and present…like the whole basis of PCR and the associated enzymes taken from wild organisms. Why shouldn’t those companies have the opportunity to benefit from their research for a period of time? I don’t see how it’s different to any other product.

    It is reminiscent of some of the accusations thrown at Monsanto – they were widely thought to have “patented genes” or “patented plants” for one of their transgenic crops, when they had actually patented the USE of the genes and related oligonucleotides. There’s a very fine distinction.

  24. quasilobachevski said,

    April 9, 2010 at 9:28 pm

    kensol,

    I’m confused. In comment #15, you wrote

    The gene was not patented…

    Now, in #22, you write

    I never said anything about whether the gene sequence itself was patented…

    Perhaps you could explain to the lay spectators (like me) the difference between a gene and a gene sequence?

  25. prion said,

    April 10, 2010 at 1:43 am

    @quasilobachevski – My understanding of the Myriad case is that they patented the right to isolate the gene sequence, i.e. to chop it out of the rest of the DNA and purify it. They don’t have a patent on “the gene” as it sits in your body in its natural state – so my understanding is completely different from Ben’s interpretation here. I disagree with the statement “The claims in this patent therefore extend, if properly enforced, to almost every single gene, in every single person on the planet.”

    I think the confusion comes from the fact that some people think if a company have a patent on the use of something, they ‘own’ that thing. Patent isn’t ownership, it is the right to produce/apply certain technology. If a company has patented every use of a specific human gene sequence they can think of, including the act of isolating that sequence or any part of it, it doesn’t mean they somehow ‘own’ people’s genes. They just have the exclusive right to do stuff based on those genes. In the same way, the copyright of a particular music album belongs to a specific artist, but that doesn’t stop you owning the CD. Or if a pharma company have patented the purification and medicinal use of a compound that occurs naturally, it doesn’t mean they ‘own’ that compound wherever it occurs – just the right to do certain stuff with it.

    And I want to stress again that there are plenty of important pathology tests (some for cancer diagnosis/prognosis) that are under patent. It is a routine part of medical testing. But because they aren’t based on DNA/genes they don’t seem to provoke the same interest.

  26. notzed said,

    April 10, 2010 at 3:10 am

    “Patents in general are a sensible idea”

    I’m sorry Ben, but this is total bullshit. Patents are not sensible at all. They were conceived in an age when some knowledge was locked in trade secrets, and they were just a way to increase the control over the knowledge. Even from they start they hampered innovation and were a cost to society, and that was when the patent offices had time to properly review the applications.

    But now they simply getting completely out of hand, private rentiers are extracting a private tax for every action you take in your daily life. Everything from eating and shitting to talking to your friends. Soon (or perhaps already if you no longer use paper and pencil) you will not be able to even vote without a consortia of private rentiers extracting their dues. The commons of humanity itself is being divvied up and shared amongst a cabal of trans-national corporations simply for their own private profit.

    I’m no economist by I believe there is ample economic theory that demonstrates that monopolies are always bad, always. Patents are just a limited-time monopoly, and even more absurdly: on ideas. It is Randian toss to suggest that patents and personal greed are needed to inspire innovation.

    People solve problems and innovate because that’s what we have evolved to do, and because we’ve just had ‘nothing better to do’ with all that time we gained once we discovered the innovation of agriculture and shared that with everyone else. Unless you could sing and tell stories … but even the arts is chock-full of innovation precisely because it is in its nature to freely share ideas and build upon the shared human knowledge of the past.

    Seriously, just where would we be if the first monkey to pick up a stick decided to keep the innovation of tool use to him/herself for their own personal benefit? Probably chucking real shit at each other and not just barbed words over electronics.

    It is a sad sad day that the **fashion industry** is the only industry which ‘gets it’ that true innovation is the exhaustively rapid changing of ideas, not locking them up behind a pay-wall for 20 years at a go. They are arguably the most innovative industry on the planet precisely because ideas are shared and ‘stolen’ (a stupid word here: you cannot steal something if the other person still has it). Even agriculture – without which would simply not exist – is being locked up inside someone’s pocket.

    Really, a few gene patents are nothing on all that.

  27. phayes said,

    April 10, 2010 at 4:13 am

    @prion

    “My understanding of the Myriad case is that they patented the right to isolate the gene sequence, i.e. to chop it out of the rest of the DNA and purify it. They don’t have a patent on “the gene” as it sits in your body in its natural state – so my understanding is completely different from Ben’s interpretation here.

    I think the confusion comes from the fact that some people think if a company have a patent on the use of something, they ‘own’ that thing. Patent isn’t ownership, it is the right to produce/apply certain technology.”

    Oh my! More Goldacrely confusion and gross misunderstanding: a patent confers the right to exclude others from “producing/applying” certain technology – not the right to “produce/apply” that technology!!! Don’t you know the difference (and that if you don’t, everything you say about patents is, therefore, utter nonsense)?

    *sigh*

  28. prion said,

    April 10, 2010 at 5:33 pm

    Well if you’re the one with the patent, you’re the only one with the legal right to apply the technology (because your patent allows you to stop anyone else from doing so). I think you’re the one who’s confused.

  29. prion said,

    April 10, 2010 at 5:34 pm

    *self-righteous sigh*

  30. phayes said,

    April 10, 2010 at 6:26 pm

    “ … The exact nature of the right conferred must be carefully distinguished, and the key is in the words “right to exclude” in the phrase just quoted. The patent does not grant the right to make, use, offer for sale or sell or import the invention but only grants the exclusive nature of the right. … ”

    www.uspto.gov/web/offices/pac/doc/general/nature.htm

    It’s one of the distinctions that does actually make an important difference both legally and economically.

    Anyway, I apologise for my sarcasm and “self-righteous sigh”, prion: too many encounters over the years with both people of little knowledge of the patent system and people who use their knowledge of it in order to mislead. :)

  31. Robert Carnegie said,

    April 11, 2010 at 6:13 am

    A couple of points.

    If inventions aren’t legally protected then inventors indeed will not invent stuff, or will deploy inventions only with technology in place to protect their trade secrets, or both. I think we’re already hearing of medical treatment companies reporting that some possible treatments are not worth investigating because they can’t produce the thing, get it approved for use on real patients outside trials, and then make the money back on it, before the patent expires. Of course there’s a point of view that medicine shouldn’t be done for money, but on the other hand, doctors, nurses, pharmacists, have to eat.

    A rather colourful and pretty good science fiction thriller [The Long Habit of Living] may be of interest. In the book, the most important medical treatment in the future world is a combination of longevity and rejuvenation procedures and cures-for-everything collectively called The Stileman Process, which are good for ten years per treatment in exchange for all your money – yes, it was devised by a socialist – not to be less than a million (and inflation hasn’t yet made that easy: and so much for socialism: I didn’t write the book). Much of the Stileman system isn’t patented, simply secret, and by various means, intended and otherwise, the Stileman Foundation indirectly controls and stifles pretty much all medical research, too. That the story proceeds to reveal that the Foundation has just fallen into the control of a lunatic and the hero/heroine suddenly acquire many of the powers of DC Comics’ “The Flash” at a very convenient time should not be a distraction from the questions of political philosophy that are raised.

    Two, there’s also a point of view that scientific “knowledge” is only going to be an artificial model of the physical world anyway, distinct from the real thing. For instance, if you want to stay sane when your favourite scientific theory is displaced by a new one, you need a philosophy of detachment such as this. Well then, it follows that scientific experimental results are inventions, because you may find eventually you’re wrong about what the real world is like. Practically it’s very unliely that fundamental ideas about how genes and cancer work are going to be overturned any time soon, but they are still ideas and are created by human imagination. Or, these days, sometimes inside a computer, but, well… it probably still counts.

  32. phayes said,

    April 11, 2010 at 3:30 pm

    @kensol

    “The complaint also explicitly recognizes and admits that the claims do NOT cover genes in their native environment, but rather “isolated” DNA.”

    Gosh! So we won’t all have to cease using our own genes or pay vast sums in licensing fees to innumerable gene patent owners after all. Well that is a relief!

    *si…

    @Robert Carnegie

    “If inventions aren’t legally protected then inventors indeed will not invent stuff, or will deploy inventions only with technology in place to protect their trade secrets, or both.”

    The reality of innovation economics and the patent system is very different than the simplistic popular myths:

    papers.ssrn.com/sol3/papers.cfm?abstract_id=642622

    For a more hard-hitting and entertaining, “everything you thought you knew about IP is wrong”, perspective, see here:

    levine.sscnet.ucla.edu/general/intellectual/againstfinal.htm

  33. xpatent said,

    April 16, 2010 at 3:10 pm

    I’m not a gene patent expert, so have stayed out of this, but there are a few things that stick out here.

    1. The headline to this piece is blatantly sensationalist and not remotely in line with the reality of what a patent on a gene sequence is. Have you started writing for the Daily Mail while I wasn’t watching, Dr Godlacre?

    2. It matters not one jot what the legal complaint said the scope of the patent was. If the patent would be invalid were it blue, the complaint would have argued that it was blue even if it was blatantly pink. That’s US lawyers for you. What matters is which arguments in the complaint were accepted by the courts or the USPTO or whoever it was who decided on it.

    3. This is an old patent, dating back as far as 1994. US law hasn’t got much better, I don’t think, but there were some significant (and as far I can tell very sensible) changes to biotechnology patent law since 1998 in Europe. The EP version of this patent has since be restricted during opposition to a method of diagnosing a predisposition to cancer based on particular germline alteration.

    4. phayes is an active Internet anti-patent lobbyist who uses his basic knowledge to muddy waters as much as he can and who has a habit of accuses any patent attorney who disagrees with him of being a money-seeking, self-interested whore, but praises and quotes (or mis-quotes in this case) any who happen to say something that might support his agenda. Best to ignore him, really.

  34. phayes said,

    April 16, 2010 at 6:58 pm

    Feel free to clarify and expand on your ignorant and defamatory assertions, xpatent – either here or in the forum thread.

  35. Dr Spence said,

    April 18, 2010 at 4:58 pm

    Wrong Wrong Wrong!
    Myriad discovered a relationship between polymorphisms in the BRCA1 gene and a predisposition to breast cancer. The nature of the polymorphisms was not predictable and therefore quite reasonably patentable. How they chose to realize the value of this valid patent was a business decision which one may agree or disagree with.
    To be honest I’m sick of people who do not understand how patent law works and the criteria for what is patentable and what is not spouting off about how wrong it is to patent biological discoveries.It cost Myriad many millions of dollars to discover the BRCA1 breast cancer relationship – they deserve to profit from it. DISCLOSURE – I have no relationship or financial interest in Myriad Genetics. I just want to teach you all that their patents is valid and that without patents we would still be using leeches in medicine!

  36. phayes said,

    April 18, 2010 at 9:02 pm

    “I just want to teach you all that their patents is valid and that without patents we would still be using leeches in medicine!”

    Like xpatent, not too bright are you, Dr Spence?

  37. phayes said,

    April 18, 2010 at 9:04 pm

    Honestly!… fucking moronic twerps.

  38. phayes said,

    April 19, 2010 at 10:05 am

    “The search for a genetic basis for breast and ovarian cancer began in earnest in 1988 with the formation of a U.K. research group that later became the International Breast Cancer Linkage Consortium. U.S. researchers were conducting similar research, and at the 1990 American Society of Human Genetics Meeting, a team led by Mary-Claire King announced the localization through linkage analysis of a gene associated with increased risk for breast cancer (BRCA1) to the long arm of chromosome 17. In August 1994, Mark Skolnick and researchers at Myriad, along with colleagues at the University of Utah, the U.S. National Institutes of Health (NIH), and McGill University sequenced BRCA1. This research was supported in part by funding from the pharmaceutical company Eli Lilly, but also from government agencies such as the NIH which provided Skolnick with more than $5 million specifically to look for BRCA1. Skolnick and Myriad filed for U.S. ‘composition-of-matter’ and ‘methods-of-use’ patents on the whole gene, as well as for a variety of deleterious mutations.

    After the 1990 discovery of BRCA1, it quickly became apparent that at least one other gene was involved in hereditary breast and ovarian cancer, leading researchers to continue their search for BRCA2. The patenting of BRCA1 by Myriad, and the resulting ability of a company to control access to and pricing of the gene for use in research and for susceptibility or diagnostic tests, presented a disturbing scenario to many of the researchers involved in the hunt for BRCA1 and BRCA2. A race ensued between Skolnick at Myriad, and a consortium of U.K. researchers led by Michael Stratton at the Institute for Cancer Research and the Sanger Centre, to be the first to discover and control (i.e., patent) BRCA2. In September 1994, BRCA2 was localized through linkage analysis to chromosome 13. On December 22 the following year, the day before it was to publish the sequence for BRCA2 in the journal Nature, the U.K. consortium held a press conference to announce their discovery as well as their filing of a U.K. gene patent. Despite opposition to the patent process by many U.K. researchers, it was agreed that a patent was necessary to prevent exclusive control by companies such as Myriad. A patent on BRCA252 was filed by CRC Technology, the commercial arm of the Cancer Research Campaign (CRC), the charity that had funded much of the BRCA research in the U.K. The afternoon of the press conference, Myriad announced that they had also discovered the gene (supposedly at an earlier date than the U.K. researchers) and had filed for a U.S. patent.” –Bryn Williams-Jones.

    www.genethics.ca/personal/HistoryPatent.pdf