Twenty percent of the human genome is patented. I expect that someday in the future, my morning will be interrupted by a lawyer telling me that the company he represents holds a patent on the biochemical conversion of foodstuffs to energy suitable for powering a biological organism and that I should cease and desist eating my Cheerios.
I did my graduate studies in biochem, and this patenting gene issue used to bug me a lot. But I've come to terms with it, given that a lot of progress was actually driven by biotech companies ...
'a lot of progress was actually driven by biotech companies' -- well, so they tell you, conveniently leaving out the details of NIST grants and other forms of government funding ;)
What does a gene patent mean in terms of the human genome? If I have a child, doesn't that infringe on one of those gene patents? If I cut myself and the skin grows back, this infringes, right?
You might say, no, no, it's only when we transclude that gene in a strain of E. coli to make better guar gum or something, and I'd say how do you know that didn't occur in nature already by some unlikely but theoretically possible process?
Two words: BAD LAW.
The process to identify and obtain a particular gene is patentable, not the gene itself.
What will they do when they find the gene for being a self-important profiteering geneticist? Because I'd buy it.
Juan Xavier Larrea said:
"The process to identify and obtain a particular gene is patentable, not the gene itself."
I am not familiar with these particular patents, but living organisms themselves (including genes) are patentable, not just the process of isolating a gene. The biological matter also does not have to be transgenic. See J.E.M. v. Pioneer HiBred at: http://tinyurl.com/9mndu
U.S. patent law is much scarier than most people realize.
does this scare the hell out of anyone else??
Patent isn't copyright. If you wanna make a copy of your genes, or eat your food, that's okay. Your own cells sequence your genome all the time. But they use natural techniques. Your body's cellular aerobic activity is not something some white-coat did.
The language found in 35 USC 101, Inventions patentable (http://www.bitlaw.com/source/35usc/101.html) was ruled to include plant life because the particular plant in the deciding case that Andy linked to was protected under the Plant Variety Protection Act (PVPA). Besides, the petitioner in this case was clearly in breach of a licensing agreement.
Furthermore, Justice Scalia noted that the USC 101 provision was ruled to include "human-made, genetically engineered" bacteria in the Diamond v. Chakrabarty case in 1980 (http://caselaw.lp.findlaw.com/scripts/printer_friendly.pl?page=us/447/303.html).
Assuredly, it is reasonable to consider Mike's note that a manufactured organism may already exist in nature, but listen, as soon as someone discovers an oil-eating bacteria strain in the wild, let me know. I'll take a petri dish with a culture of it and 'accidentally' drop it in an Alaskan or Saudi oil field. Oops, sorry.
Regardless, once natural organisms begin popping up to contradict claims of human engineering on such organisms, it would be my guess that the ambiguity in the statutes that Scalia uses as the stare decisis justification for his ruling would be resolved. The statutes would be amended to specify distinctions between collections of organisms that had been actually engineered, and (more or less) identical ones found in the wild.
Yeah, what Nels said. Anyway, to say that a gene is patented is a gross simplification. If I remember
my IP class right, a more correct but longer way is to say that (1) the process of isolating a particular gene
is patented, and/or (2) the gene in isolation is patented. (2) is based on the premise that an isolated chemical
is a new and useful product, and there is no prior art because the chemical does not exist in nature in an
isolated, pure form.
The 20% statistic is meaningless without looking at the individual claims - I bet most of them have loads of limitations beyond merely reciting the sequence.
This thread is closed to new comments. Thanks to everyone who responded.
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jason07 18 2005 5:07PM
Isn't the bogusness of these patents covered by prior art, or inevitable discovery? Or the fact that genes are "inventions" at all, but discoveries?