US Judge Rules Gene Patents Invalid ?because they are Natural

Van Mensvoort
April 17th 2010

Did you know that about 20 percent of your body isn't really yours? It has been patented by some corporation you probably never heard of. You can't patent gold, you can't patent gravity or the speed of light. And yet, 20 percent of the human genome has indeed been patented, in what critics argue is a slippage of the patent and copyright system. Times are changing, however.

Genome patents began about 30 years in the U.S. (following an important 1980 ruling), and have been ongoing in other nations, as well. In a recent ruling though, a US federal judge has overturned the patents on two genes linked to breast and ovarian cancer on the grounds that they are not man-made, but products of nature.

The BRCA1 and 2 genes were patented by the company Myriad Genetics, that charged women more than $3000 to test for genetic mutations. The American Civil Liberties Union and individual breast cancer patients took the case to the federal court. They argued that the patent stifled medical research. The ruling could have implications for another 2000 human genes which are currently under patent.

The ruling is a huge step forward for encouraging more real research into genetic testing, rather than locking up important information. Yet we do anticipate some future troubles in response to the statement that you cannot patent something natural. If the discussion on 'what can and can't be patented' comes to the question 'what is natural and what isn't?', we can expect some fierce debates on what it exactly means to be natural – especially as we are living in a time in which things that the made and the born are fusing and our notions of nature and culture are shifting accordingly.

Obviously, within the NextNature.net quarters we are eager and prepared to have this discussion. In the end it might well turn out that one can patent bananas, carrots, hurricanes, global warming and engineered microbes, but not computer viruses, financial systems and razor species. Perhaps a way out would be to turn the definition around and say: Nature is that which can not be patented?

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Koert van Mensvoort
Posted 12/12/2010 – 19:32

Update:
Reversing a longstanding policy, the federal government declared that human and other genes should not be eligible for patents because they are part of nature. The new position could have a huge impact on medicine and on the biotechnology industry.
The new position was declared in a friend-of-the-court brief filed by the Department of Justice late Friday in a case involving two human genes linked to breast and ovarian cancer.
“We acknowledge that this conclusion is contrary to the longstanding practice of the Patent and Trademark Office, as well as the practice of the National Institutes of Health and other government agencies that have in the past sought and obtained patents for isolated genomic DNA,” the brief said.
http://www.nytimes.com/2010/10/30/business/30drug.html?_r=2
Thanks Rogerio.

Adrian Woods
Posted 12/08/2010 – 14:56

David Koepsell shares his in depth knowledge on (human) gene patenting in his book "Who owns you?'. A recommended and relatively up to date read if you are interested in the subject mentioned above. He introduces you to the world of genomics, whereafter he continues about the intellectual property right and gene ownership.
But one mustn't forget that the possibility to patent genes was one of the keys to complete the HGP in a short timespan, but what do we do with this in a post-HGP era? And how do we relate to our own genes? Who and why should we create privacy laws regarding genes?
Part of my latest 'ornamism project' exhibition was an introductory to gene patenting, a small step towards broadening the public knowledge about the subject, also discovering that the public knowledge is nihil. It would be a great topic for discussion within the wide range of next nature. And i concur with Arnoud van den Heuvel, i also like the last question, a interesting linkage to next nature.

Zack
Posted 30/04/2010 – 15:59

What is interesting to me is not only the legal definition of "nature" but the legal definition of "gene" and what is actually patented.
It is all a bit confusing because the concept of a "gene" is human constructed unit, and thus a bit fuzzy and "un-natural" in its own right. (Not to forgive bad policy or company abuse of IP regimes).
If I understand the legalize correctly it is not the "gene" but a sequence (which basically a visualization) or a chemical compositions.
From the wikipedia article on Gene Patents "A gene patent is a patent on a specific isolated gene sequence, its chemical composition, processes for obtaining or using it, or a combination of such claims. "
Also a bit out of date but: a c.2007 visualization of the patents on the X and Y chromosome of the human genome: http://zackdenfeld.com/genome/progress.html showing some interesting and significant sex preferences under the old patent regime.

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Should men be able to give birth to children?


Koert van Mensvoort: Is the artificial womb frankenstein-like symbol of (male) engineers trying to steal the magical womb from women? Or… is it a feminist project and needed to reach through equality between the sexes? I personally lean towards the latter. To me it feels like progress if a girl can tell a guy to carry the womb for a change.

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