Patents, genes and Jews

Share on FacebookShare on Google+Email this to someoneTweet about this on Twitter

Slate has an interesting piece up that highlights the controversy with patenting aspects of the BRCA2 gene. Of course the article focuses on the specific case of Jews, but as far as the ultimate issues of intellectual rights relating to genetic sequences and the methods to ascertain their identity, this is the tip of the iceberg. Today we are squabbling over music and film, but in the near future I suspect that we are going to focus less on such trivialities.

8 Comments

  1. They keep talking about “patenting a gene”, but when they mention specifics, it sounds like they’re patenting a device. Patenting a device is no big deal – it’s what patents have always been about. In what way are they patenting a gene?

  2. I think they have patented a gene, and as such they can license their and only their testing kit to a doctor to detect this gene allele specific to a certain form of breast cancer? 
     
    I think they have patented the sequence needed to produce this gene?

  3. Can’t we stop them from patenting genes? It’s not like they invented the gene… I know there’s more to this but could someone explain it to me?

  4. I don’t know what they did or didn’t patent, but under US law you cannot patent something that exists in nature.

  5. I don’t know what they did or didn’t patent, but under US law you cannot patent something that exists in nature. 
     
    ok, this isn’t what they did here, i think basically they patented the test from what i can gather. but what if a company takes a gene found in nature, and mutagenizes it, and sells it for gene therapy? (assuming it has positive properties and you can get a vector to do the requisite funny business) that kosher? the analogy with many drugs is pretty clear i think-take something you find in nature, and improve on it. 
     
    but here’s my counterpoint: what if they find that there are people (after the patent) who naturally carry the mutant allele? does that invalidate their patent? if it is one person?

  6. No it wouldn’t.  
     
    They would still own the rights to the “procedure” which gets you from the non-mutant allele to the mutant one.  
     
    In this case, they are simply patenting the technology which they use in identifying the mutation. If they invented the said technology, they should benefit from it, even if it disproportionately affects one group.

  7. The case law that you might want to look at is DIAMOND v. CHAKRABARTY, 447 U.S. 303 (1980). 
    The holding stated, in part –  
     
    In 1952, when the patent laws were recodified, Congress replaced the word “art” with “process,” but otherwise left Jefferson’s language intact. The Committee Reports accompanying the 1952 Act inform us that Congress intended statutory subject matter to “include anything under the sun that is made by man.”  
     
    As for improving something, for a patent to be issued, the invention doesn’t have to be “improved” in the sense of better, only different. See 35 USC 101, 102 & 103 for more info. In a nutshell, an invention has to be new, useful and non-obvious in order to be awarded a patent with volumes of case law defining those terms.

  8. but here’s my counterpoint: what if they find that there are people (after the patent) who naturally carry the mutant allele? does that invalidate their patent? if it is one person? 
     
    The patent would still be valid for the procedure rather than the end-state. 
     
    Further, the patent would probably be stronger for the gene therapy vector that was used to introduce the mutant allele into the patient, for which there is no natural counterpart. Competitors can’t go and synthesize the naturally occuring variant and have patients ingest it as a pill :) and expect it to work.

a