Judge Overturns Corporate Patent on Human DNA

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Tuesday, March 30, 2010 at 1:26 pm

A federal judge on Monday struck down the patent, held jointly by the University of Utah and Myriad Genetics, over BCRA1 and BCRA2, two human genes in which mutations can cause breast and ovarian cancer. The case was filed in 2009 by the ACLU, which argued not just that the BCRA1 and BCRA2 gene patents were invalid, but that a 1979 Supreme Court decision upholding patents on engineered organisms did not apply to existing parts of the human genome and that such patents were unconstitutional. The judge agreed that the patents were invalid, but did not rule on the larger institutional question.

Myriad and the University of Utah argued that the technique used to find the specific genes made the genes they found patentable, but the judge didn’t buy it.

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.”

Lawyer’s tricks, apparently, work on patent application examiners but not federal judges.

The ACLU notes that more than 2,000 human genes are currently under patent based on the legal idea, now overruled, that just discovering the existence of a gene means one can claim ownership over it.

Approximately 20 percent of all human genes are patented, including genes associated with Alzheimer’s disease, muscular dystrophy, colon cancer, asthma and many other illnesses.

The Myriad and University of Utah patent over the BCRA1 and BCRA2 genes allowed Myriad to charge $3,000 for a screening exam to detect cancerous mutations to the genes, and forbade other organizations from developing alternative tests. Researchers interested in any type of research on the BCRA1 and BCRA2 genes — which are associated with a 500 percent higher risk of developing breast or ovarian cancer — had to get (and often pay for) the company’s permission to perform their research.

Companies that patent the building blocks of human life (and non-profit educational institutions that clearly make money from these arrangements) claim that the legal ruling, which may still be appealed, will stifle research: one researcher indicated that it will make it difficult for companies pursuing medicines targeted at individuals’ DNA from patenting individuals’ DNA profiles, as though that’s a bad idea. Of course, the Myriad test for the BCRA1 and BCRA2 gene will still be patented: They just can’t prevent competitors from patenting a different test that could find the same mutations any longer.

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uberVU - social comments
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This post was mentioned on Twitter by leahlibrarian: RT @TWI_news: Judge Overturns Corporate Patent on Human DNA http://bit.ly/asZf2c // Shame on you, University of Utah and Myriad #devious…


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strangely_enough
Comment posted March 30, 2010 @ 5:55 pm

If by “lawyer's tricks” you mean whatever largess can be lavished on a government employee without technically breaking the law, well, you've got a point. Future employment can be a huge motivator.

They just can’t prevent competitors from patenting a different test that could find the same mutations any longer.

WINNER!1!
Somehow, I think there is just way too much money involved, and some aggrieved corporate right (to own people, or at least the valuable parts of them), for this not to end up in front of the Supreme Court.


ajm8127
Comment posted March 30, 2010 @ 6:28 pm

The white man “discovered” the existence of North America, and they claimed ownership of it.


DNA testing
Comment posted March 30, 2010 @ 7:29 pm

Patent on human DNA??

“more than 2,000 human genes are currently under patent”

Am I maybe using some of those genes and violating some patent?


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Comment posted March 31, 2010 @ 5:42 am

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Philip123
Comment posted April 1, 2010 @ 10:37 am

There's a fascinating take on this at the Skeptic's Health Journal, sort of provides some of the background to the debate, if interested you can read on it here, http://healthjournalclub.blogspot.com/


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shasad
Comment posted February 11, 2011 @ 2:00 pm

I want to share with you that The European Court of Justice (ECJ) has made a controversial decision to hand down judgement on a case which had requested a preliminary ruling on the biotechnology Directive’s legal protection regarding genetic material.


Patent
Comment posted February 11, 2011 @ 2:44 pm

I believe that The issue at hand was that the patent protection only applied to the DNA sequence coding in a form in which it could be expressed into a plant, and not when it was present in harvested goods or as isolated DNA. On a general scale, Article 9 of the Directive 98/44 does not confer patent protection when the patented product no longer performs its function but has the potential to do so again if extracted and introduced into a living organism.


Kiran Machiraju
Comment posted April 9, 2011 @ 5:48 am

A living being cannot acquire patents and rights on another living being! Patenting DNA is the same. If the DNA is developed into some intelligent organism then what will be it’s fate? Living at the mercy of money-thirsty patent holders and bullies? What if God took a patent on us when he made us? If there was ever a GOD, he made us from scratch and yet, he did not take any patents. Life is not just an object to play around. These DNA scientists are not doing the right thing. Release them for the benefit of mankind.


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