An End to Gene Patents?

Friday, April 02, 2010

ACLU First Amendment Working Group attorney, Chris Hansen, talks about this week’s New York federal court ruling that declared patents on genes associated with hereditary breast and ovarian cancer invalid. And Nathan Tinker, executive director of the New York Biotechnology Association, explores the ruling's potential impact on the biotech industry.


Chris Hansen and Nathan Tinker

Comments [22]

B Toman from NY

@ PL Hayes

Thanks for your comment. We agree there! Once you have the isolated gene you can do amazing, non-obvious things, inventive things! And if the decision is overturned you will be find investors willing to risk their money to help you do it!

Apr. 03 2010 10:34 PM
PL Hayes from Aberystwyth

@B Toman

“Once you have isolated the gene (the sequence of nucleotides) and you know what it does, you can do amazing things with it -- this is the definition of "biotechnology."”

Amazing, non-obvious, invented-not-discovered (or “isolated”) things.

Apr. 03 2010 05:19 AM
PL Hayes from Aberystwyth

@Nathan Tinker

a) The decision does not “deny the patentability of US based genetic research” (and the tacit assumption that denying patentability in some field/industry is necessarily a bad thing is extremely economically naïve anyway!)¹.

b) Why on earth would research “quickly migrate to Europe and Asia”? Do research laboratories need to be located in the same jurisdiction as the Patent Office to which they apply for patent privileges in that jurisdiction's market? Of course not. [Several large companies' patent departments - most notably Phillips, IIRC - tried exactly that scaremongering tactic during the fight over software patents in Europe in 2005. It backfired of course.]

¹ The patent system may work well in some industries and fields but in general it seems to be sustained largely by Pollyanna-ish economic crackpottery, fallacy and mythology.

Apr. 03 2010 04:41 AM
B Toman from New York

There is a too-common misconception going around about this case.

It is nicely (and frustratingly) captured by Brian's lead for the show, when he talks about "patents on your genes."

Why is this wrong? You are made of cells, each with a nucleus, inside of which is a mass of DNA in paired chromosomes. In humans chromosomes are millions of nucleotides long (ranging from ~47M nucleotides to ~247M nucleotides long). There are 578 genes on the shortest chromosome; over 4000 on the longest. There are no road signs, no color-coded sticky notes that say - new gene starts here! Gene ends here! Just long long chains of nucleotides.

In contrast, "gene patents" cover isolated, shorter nucleotide sequences with known functions.

Isolated nucleotide sequences with known functions do not exist in nature (not much, anyway).

Once you have isolated the gene (the sequence of nucleotides) and you know what it does, you can do amazing things with it -- this is the definition of "biotechnology." You can stick the gene in a bacteria, grow that bacteria up, purify the protein that comes out, and have a drug -- a drug that can save lives, say -- the life of your kids who are dying from a terrible disease (see the recent movie Extraordinary Measures - based on a true story.) You can make a vaccine that will prevent your daughter from getting cervical cancer. You can make an enzyme for laundry detergent that will make your shirts nice and bright. And yes, you can develop ways to test for mutations in the gene, so you can diagnose disease. All kinds of things. Things you cannot do with a naturally occurring gene like one of yours, which is just not useful for industrial purposes because it is locked away on a chromosome in a nucleus in a cell in your body, working for you.

So please -- no one can patent "your genes" because your genes are not isolated -- they are part of your body. And nobody wants to anyway, because your genes are useless for making products.

Apr. 02 2010 11:46 PM
Nathan Tinker from New York City


Thanks so much for letting me take part in today's conversation. This is a very complicated issue which a few minutes of radio time can introduce, but not completely elucidate. Your listeners' comments are all thoughtful and insightful, and I appreciate their consideration.

There two points I would like to make:

1) regarding Rob-from-the-Bronx's question: If the Myriad decision stands (ie, confirmed by the Supreme Court), the US will be the ONLY developed country that does NOT recognize the patentability of human genes: Europe, China, Japan all recognize that genes are patentable things. By denying the patentability of US-based genetic research, that research will quickly migrate to Europe and Asia. In order to maintain the US's leadership in biotechnology, and our accessibility to these life-saving therapies, it is vital that we have the opportunity to protect the discoveries we make.

2) Regarding John-from-the-office's question: Yes, this ruling could impact all such patents, including antibiotics derived from fungus cells; bio-fuels and other plant-derived clean energy products; and vitamins derived from plants--in other words, a wide variety of products that enhance and improve our lives.

Thanks again,
Nathan Tinker
Executive Director
New York Biotechnology Association

Apr. 02 2010 01:25 PM
Miguel Jimenez from Manhattan

The economist Dean Baker has been debunking the justifications for the current patent regime for years.

Apr. 02 2010 10:53 AM
Rob from the Bronx from Bronx, NY

If we are allowed to patent genes, are other nations bound to respect these patents?

Apr. 02 2010 10:44 AM

Brian time for you to patent that goatee!

Apr. 02 2010 10:43 AM
Jean van Mach from Manhattan

I work in academic biomedical research. There are other genes that have also been patented, by academic institutions and industry, such as the cellular receptors for HIV.

My BRCA1, your BRCA1, my CCR5, your CCR5 .. if it's my genetic material, my DNA, I don't think anyone should be able to patent genetic material that exists naturally.

Finally, reason comes to gene patenting!

New biotechs, despite popular belief in the industry, can apply other business models - they can patent new methods, information, tests, diagnostics, drugs, etc.

Apr. 02 2010 10:43 AM
Catherine from Rockville Centre

Nathan Tinker's arguments don't hold water. If he's arguing that private researchers are spending billions on research, then let's make all that research publicly funded. Voila, problem solved. The PUBLIC then gets back its investment by more public money going to create therapies.

Apr. 02 2010 10:43 AM
Jenn from Upper East Side

All science takes a long time and a lot of work to do. But most of us have to come up with something new and innovative to get a patent. In general, I think patenting slows the scientific enterprise significantly. Just publish it!

Apr. 02 2010 10:42 AM
Scott Smith from Manhattan

Let's see, according to the advocate from the ACLU, because other companies were working on identifying the BRCA gene, there was no need for the incentive of patent protection to identify the gene. By that logic, all the companies that ever bid on any contract should prove that the lure of payment for the contract is not needed to entice the winning contractor to bid on the contract.

Apr. 02 2010 10:42 AM
Matt from Bronx, NY

Most of the people who dedicate their lives to this kind of research, Mr. Tinker, are working under public funding. And that's a fact.

Also, by patenting the gene you prevent researchers from using OTHER processes to purify the gene. These arguments are nonsensical.

Apr. 02 2010 10:42 AM
JP from Mahnhattan

Judge Sweets decision is a double edged sword. Although the Myriad case is limited, to natural versus altered genetic material. I believe one of the answers is to make all information openly available to researchers just like open source software which is being done. This will help the patients ultimately amd improve the acceleration of ultimate cures.
However, with regard to the economics of the issue. gene research costs a lot of money. Sequencing the human genome is just the first step. What do you do with a lot of letters? The computers, technical staff have invested time and money to say nothing of training. Costs have to be recovered. You'll put people like me out on the un employment line - an uncommon economic indicator :)

Apr. 02 2010 10:42 AM
d in NYC

This is really being presented as an emotional argument (which always happens with issues around breast cancer innovation), and no one is getting to the underlying issues.

Firstly, why has the ACLU brought this suit only now, once this product has been commercialized, as opposed to all the years elapsed while R&D was conducted? The motives of the doctors' associations, etc, aren't completely altruistic--they let Myriad prove the concept before they brought the suit.

Also, the argument that public organizations (universities, etc) will get discoveries to commercialization is ridiculous--that almost never happens. Look at the record of commercialization of IP pre- the Bayh-Dole act.

Also, what the patent holders own are not your or my version of the gene but a version of the gene that sits inside a particular artificial vector?

Finally, what motive would a company have to not allow a diagnostic test to become CLIA certified, and thus go on formulary?

The ACLU is bending the truth to elicit an emotional response.

Apr. 02 2010 10:42 AM
john from office

What about seed and food patents??Will the court decision affect that.

Apr. 02 2010 10:42 AM
CJ from NY

And you wonder why people are skeptical of science. When a company spends so much time and money on monopolizing an industry, you have to wonder if their priority is really helping people.

Apr. 02 2010 10:38 AM
Matt from Bronx, NY

The idea of patenting a gene is a joke. Which is why Mr. Tinker can't make a reasonable defense of it.

Apr. 02 2010 10:37 AM
Paul from New Rochelle

Human genome mapping was half public and half private. Does that mean we don't have access to half of our genome?

Apr. 02 2010 10:37 AM
michael from brooklyn

this whole argument seems almost as outlandish as your "corporations can now vote" april fool's day joke yesterday. Its not gene. It was not made by anyone. I can't patent my child even though I helped "make" him, but that's cause he's a person.

Apr. 02 2010 10:34 AM

As a biologist I can say that the work you put in to purify a gene is trivial not more than a week.


Apr. 02 2010 10:33 AM
Paul from New Rochelle

Didn't the human genome mapping involve private and public research teams. So 1/2 the genome is public and half private?

Apr. 02 2010 10:32 AM

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