
Gene patents probably dead worldwide following Australian court decision - cedricr
http://arstechnica.com/tech-policy/2015/10/gene-patents-probably-dead-worldwide-following-australian-court-decision/
======
ihodes
An odd title; this patent was already struck down by the Supreme Court of the
USA in 2013[0]. Now it's no longer valid in Australia. The cost of tests for
BRCA1/2 mutations is dropping dramatically; were the medical apparatus of the
USA not so drastically broken, the cost to consumers of this test would today
cost the consumer around $50 US. This is thanks largely to the ACLU and some
geneticists in NYC, including Harry Ostrer.

[0]:
[https://en.wikipedia.org/wiki/Myriad_Genetics#Association_fo...](https://en.wikipedia.org/wiki/Myriad_Genetics#Association_for_Molecular_Pathology_v._Myriad_Genetics)

~~~
matt_heimer
Does anyone know how the medical test at the heart of this legal issue
compares to something like the raw data from 23andme? 23andme v4 gives you 25
SNPs for BRCA1 and BRCA2.

~~~
ihodes
A comprehensive test looking at the BRCAs may deeply sequence sequence the
entire gene(s); spanning around 150 thousand base pairs. You'd not only want
to look for SNPs, but novel SNVs, and various structural variants (SVs) and
copy-number variants (CNVs). I don't know the most common class of mutations
for BRCA1 and 2, so it may be the case that a smaller, cheaper panel could be
nearly as effective as well.

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mirimir
Now, if we can just agree that natural products and traditional cures can't be
patented. India has been fighting hard for that.

~~~
ekianjo
If we could kill patents altogether that would be a much nicer step. Patents
are an invention from another Era and make absolutely no sense nowadays, and
we see them constantly abused to make our lives worse in the end.

~~~
doki_pen
Not true. Patents increase the incentive for people to do hard research and
development. Whether or not that increased incentive is necessary is
debatable.

~~~
Peaker
They also decrease the incentive for people to do research and development
(e.g: as derivative works from existing inventions).

Which effect is stronger? It is very plausible that overall, the decrease is
far stronger than the increase, as the vast majority of inventions are
derivative.

------
icanhackit
Looking at some of the for and against arguments regarding patents, let's play
a mental game: would new, valuable things still be created if the patent
system didn't exist?

I think yes. The creator wouldn't necessarily benefit directly, but in a way
we all indirectly benefit from new technology and ideas. Much the same as it
would be better for the poor to have free or affordable essential health care,
our society would have more able-bodied and able-minded people to work or even
conduct themselves in a way that didn't transmit their illness, whether
physically or through dependance.

By leaving the weak weakened, we indirectly transmit that ailment to others by
physical and economic forces. You're only as strong as your weakest point.

~~~
rayiner
The question is: what kind of valuable things would still be produced? You'll
still get iPhones, but will you get ARM cores or Snapdragon chipsets or LTE or
MPEG4 or pills that cure Hep-C?

The bigger picture is that almost all hard R&D takes place under the umbrella
of _some sort_ of protection from copying. Intel spends billions a year on
semiconductor R&D, and protects it with trade secrets. Pharma companies spend
billions on drug R&D and protect them with patents. Even internet companies
like Google and Facebook depend on being able to hide a lot of their "secret
sauce" (either algorithms or compilations of user information) on the server-
side where it can't be easily copied.

Hard R&D that isn't protected from copying is usually subsidized. The core
internet protocols were subsidized by the Government. Advances in core browser
protocols are subsidized by Internet companies that rely heavily on ad
revenue. Going back further in history, Bell Labs was subsidized by AT&T's
telephone monopoly and PARC was subsidized by Xerox's copier monopoly. That
model can work too, but has its own problems.

~~~
icanhackit
You make some compelling points but I'm still not convinced that this form of
protectionism is the only avenue to innovation. The strength of a company is
often in its organization, processes, location, and systems which are
difficult to copy in a cohesive way without being gifted with similar
circumstances. Why can't a company's strength and success in the marketplace
be defined by these characteristics as opposed to legislative shields? Winner-
takes-all systems often shape organizational behavior to be more defensive
than creative.

~~~
kbenson
Let's not reduce this argument to innovation for _companies_. Individuals
innovate and patent as well.

There is a tendency to focus purely on the negative effects of a system that
seems to be failing it's purpose. It's important to understand the system as a
whole, and it's history. Has the patent system ever functioned for the purpose
it was designed for? If it isn't functioning correctly now, is that in part or
in whole? Is it not functioning because it has been changed, because the world
has changed, or both.

Finally, is there a way to alter the system, whether that be to curtail it,
expand it, or just change how it operates, that might yield a better
functioning system?

Personally, I'm not for abolishing patents. They had a very clearly defined
purpose (innovation encouragement) when they were first created. I think
they've been mostly perverted into another purpose (wealth protection), more-
so in some industries than others. They've been expanded from court rulings to
cover things which were not originally thought patentable. What we need here
is a well reasoned legislative overhaul. What we'll get if we're extremely
lucky is a hole-ridden clusterfuck of revisions, but if we're lucky, it will
somewhat address the current problems. The new problems will be something we
discover and address tomorrow.

~~~
JoeAltmaier
I don't think you can disentangle those two purposes. Innovation is encouraged
precisely because you can profit from your invention.

I believe the cost and delay of patent litigation is the real problem. It's
important to identify the critical issue before effective change can happen.

~~~
kbenson
My point was when wealth protection is a tool to bolster innovation, then the
incentives are aligned correctly. When people, or more importantly
legislators, forget that and think the _purpose_ of patents is to reward for
innovation, we get some perverse incentives. In a perfect world, protection
would be inversely proportional to the amount of innovation the sector is
experiencing, and would also be scaled to the amount the innovation helps. But
those are both hard to measure realistically.

------
mcv
Did Myriad really claim to own the gene itself as their invention? If so,
there are a lot of people who'd probably like to sue them for infecting them
with that invention.

It seems to me that all Myriad could possibly patent, is a unique detection
method for that gene. But that wouldn't stop anyone from using a different
detection method.

But what interests me more about this case is that the article expects an
Australian court decision to be taken as global jurisprudence. What's the
logic behind that? And is that really where we're headed?

~~~
dbbolton
SCOTUS struck down patents on naturally occurring gene sequences themselves
and decided that the "mere isolation" thereof cannot be patented:

[https://en.wikipedia.org/wiki/Ass%27n_for_Molecular_Patholog...](https://en.wikipedia.org/wiki/Ass%27n_for_Molecular_Pathology_v._Myriad_Genetics,_Inc.#Decision_of_the_Supreme_Court)

However, "artificial" sequences can be. I'm not aware of any test cases that
establish boundaries on the difference though. It would be logical to assume
you'd have to alter the nucleotide sequence to the extent that the resulting
peptide or protein is not naturally occurring (e.g. changing a TTT codon to
TTC wouldn't suffice, since both will ultimately be translated into
phenylalanine).

Contrary to this reasoning, complementary DNA _is_ patentable in the US on the
grounds that it's "not naturally occurring". So, if you take the mRNA
corresponding to an un-patentable DNA sequence and mix it with a few enzymes
and nucleotides that react in a deterministic fashion, you can then patent the
sequence of the final product:

[https://en.wikipedia.org/wiki/Complementary_DNA](https://en.wikipedia.org/wiki/Complementary_DNA)

In a gross oversimplification, it's almost as if the court said: "you can't
patent natural English words, but you can patent the ROT13 versions of them".

But regarding methods, the majority opinion clearly said they're fair game
(just as you can't patent gold, but you could patent a novel approach to
mining or extracting it) and there are several valid examples in the US today:

[https://en.wikipedia.org/wiki/Biological_patents_in_the_Unit...](https://en.wikipedia.org/wiki/Biological_patents_in_the_United_States#Gene_patents)

------
guard-of-terra
It is very reassuring that after 20 years of software patent debates courts
decided to not start this over with genes.

------
hliyan
It's good to see a rational decision with regards to science coming out of
Australia. Aussies have been getting too much bad rap due to the Abbot
government.

~~~
eru
We just tossed Abbott. Let's see if that helps.

~~~
shoo
He wasn't tossed, his party threw him out. We still have to wear the shame of
collectively permitting those bastards to be voted in to federal government.
They're still there.

~~~
caf
His party gave him the arse because polling showed he was seriously on the
nose with the electorate and had been so since shortly after his election.

------
amelius
Does this mean that Monsanto's patents are also invalid?

~~~
tectec
I would think that Monsanto's patents are quite different. They use plant
breeding to _create_ new varieties. These patents of Myriad Genetics are just
using DNA sequencing to find existing genes.

~~~
vesinisa
I agree with your view that Monsanto is unlikely affected, but the article is
quite misleadingly named. With "gene patent" I immediately think of Monsanto.
But this ruling seems to only affect those who claim exclusive right to
_discovering_ properties of existing genes - not those who _create_ organisms
with unique genetic properties, like Monsanto.

------
DomreiRoam
I think this press [1] release of the institut curie gives a lot of
information. other press release can be find here [2].

[1] [http://www.institut-curie.org/sites/default/files/myriad-
gen...](http://www.institut-curie.org/sites/default/files/myriad-genetics-
predisposition-breastt-cance.pdf) [2] [http://www.institut-curie.org/press-
release/by-type/377](http://www.institut-curie.org/press-release/by-type/377)

~~~
pjc50
That's dated 2008?

~~~
DomreiRoam
Yes but at this time the institut who is specialized in cancer had done lots
of research and was very against the privatization of the public research and
that the researcher couldn't research further because of this patent.

The Curie institut reacted to the patent as a research institution, here we
have the impact on a practical health issue.

------
stillsut
Patents are a trade: you get an 18 year monopoly for public disclosure of how
your innovation works.

In societies that lack patent protection, much innovation becomes a trade
secret guarded against public use for generations, think China and the silk
trade.

By removing patents, you remove the incentive to make public how your medicine
works. That, actually sounds scarier to me than temporary price mark ups.

------
personjerry
Although we might be clear on what we perceive to be the right ruling, it is
not always so simple. For example, what if we claimed in software that any
software program, given that it is merely a series of bits, is therefore
merely a number, and thus a "product of mathematics" not produced by man?

~~~
lifeisstillgood
Copyright is far and away the best IP category for software - I strongly argue
it is a form of literacy anyway.

And I am not convinced there is any mathematics outside the mind of humans -
it's an odd one, but is not maths a model of the world rather than the world
itself?

~~~
thaumasiotes
> is not maths a model of the world rather than the world itself?

This isn't right. It sounds like a very "the unreasonable effectiveness of
mathematics" view of things.

Any model of anything is math. The world is bound by the math, not the other
way around.

------
Gatsky
I think the fears that this will stifle innovation are greatly exaggerated. In
fact, this patent was stifling innovation. Because of the expense, we have
tested far fewer patients than we could have for BRCA1/2 mutations, and there
thus remain many mutations of unknown significance that can only be resolved
with more detailed clinical annotation from testing many more people. It's a
classic case of a patent hampering the usefulness of an invention, so that
someone can make money.

Myriad really were relentless opportunists with very well fed lawyers. The
idea of a patent on a gene is completely nonsensical to anybody working in
genomics these days. I can pay $1000 and sequence all 3 billion base pairs of
my DNA. Using open source software and publicly available databases funded by
governments and charities I can analyse my own DNA. What role does a gene
patent have in any of this? What if I discover that I have an unreported
variant in the patented gene? Can I now patent my own version of the gene, and
charge my offspring a license fee for reproducing this gene each time one of
their cells divide? Do they pay extra if they are homozygous?

Soul-destroying patent disputes have become a feature of the life sciences, it
drives me mad. The story is always the same. A scientist performing research
in a seemingly unimpressive field discovers something interesting. They
generously publish their rough results because that's how science works. Then
someone else comes along and refines it a bit before slapping a patent on it,
because nobody else has yet. 20 years of legal battles ensue. Companies are
still fighting over the PCR patents for example, even AFTER the patents have
expired [1]. Now it looks like the same crap is going to transpire with
CRISPR. The funny thing about these cases is that most of the research and
innovation happens at the beginning, before the patents are even in operation,
again questioning the notion that patents foster innovation.

As has been pointed out many times before, it is rare for a biotech/life
sciences company to generate the kind of profit that permits them to do blue
sky research. Most of that happens from government funded work. Big pharma
doesn't really count, it costs them too much to develop each drug. They
certainly don't have anything akin to Bell Labs, Xerox PARC or Google X.

Anyway, Myriad actually doesn't have any products any more. All the extremely
simple tests they do can be run by anyone. They offer a whole lot of
'services' like genetic counselling and patient education, but that's all to
create a veneer of legitimacy and hide the fact they are patent trolls. I feel
sorry for their scientists trying to do research in this environment.

[1]
[http://en.wikipedia.org/wiki/Polymerase_chain_reaction#Paten...](http://en.wikipedia.org/wiki/Polymerase_chain_reaction#Patent_disputes)

------
daveloyall
I first read "gene _patients_ probably dead".

------
onewaystreet
> This is a result that will have major practical consequences, and is likely
> to save thousands of lives.

No, companies will stop doing research now.

~~~
kybernetyk
>No, companies will stop doing research now.

That's what I'm worried about, too.

For example C60 [1] is a curious molecule that can't be patented anymore. In a
rat study it showed to prolong the rats' lives by over 90% [2] by protecting
the rats from cancer.

Sadly there won't be any human study anytime soon (if at all) because it's
just not financially viable without the possibility of patenting the stuff and
extracting fantasy prices for it.

[1]
[https://en.wikipedia.org/wiki/Buckminsterfullerene](https://en.wikipedia.org/wiki/Buckminsterfullerene)

[2] [http://www.kurzweilai.net/fullerene-c60-administration-
doubl...](http://www.kurzweilai.net/fullerene-c60-administration-doubles-rat-
lifespan-with-no-toxicity)

~~~
flipp3r
You should read the comment section of the second link. The badly done
research was done by someone whose business is selling snake oil with c60 in
it.

~~~
kybernetyk
Hmm, interesting.

Has anyone here access to the referenced paper [1] and can confirm that
"Anthony Loera" worked on it?

[1]
[http://linkinghub.elsevier.com/retrieve/pii/S014296121200323...](http://linkinghub.elsevier.com/retrieve/pii/S0142961212003237?via=sd)

Ref.: Baati T, et al., The prolongation of the lifespan of rats by repeated
oral administration of [60]fullerene, Biomaterials (2012),
doi:10.1016/j.biomaterials.2012.03.036

