Genetic rights and wrongs

Sep 12, 2014

By Nature


It is perhaps unexpected that the United States — the oft-lampooned home of patents on peanut-butter-and-jelly sandwiches and ways to swing a swing — is emerging as one of the most hostile towards patents on naturally occurring genes.

Last week, Australia had the opportunity to join the United States in taking a dim view on such licensing of nature. But a federal court there instead upheld a patent claim on the cancer-associated gene BRCA1. In doing so, the country remains with Canada, Japan and several countries in the European Union, all of which, unlike the United States, recognize such patents.

The patent on BRCA1 has become a touchstone in the debate over ‘gene patents’, a broad term that can cover a wide swath of patent claims on DNA sequences. Certain mutations in BRCA1increase the risk of, in particular, breast and ovarian cancers. And Myriad Genetics, a genetic-testing company in Salt Lake City, Utah, has aggressively defended its patents, which cover the abnormal BRCA1 sequence and tests to identify it.

In the United States, debate on gene patenting has been tied to clear public-health concerns. Myriad’s monopoly bred worry that women would have only a single option for BRCA1 testing, with no possibility of receiving a second, confirmatory test elsewhere. So when advocates challenged US patents on BRCA1 and the closely related gene, BRCA2, the case provoked a passionate response from the public. The patents were defeated in a landmark decision last year that changed decades of legal practice in the field (see Nature 498, 281–282; 2013).

Australia is in a different situation. The BRCA patents have not been enforced there, either by Myriad or by the company that has licensed them in Australia: Genetic Technologies of Melbourne. Despite the fervent involvement in the case of patient advocates, including cancer survivors, the spectre of gene patents in Australia remains more theoretical.

11 comments on “Genetic rights and wrongs

  • 1
    Light Wave says:

    Human Genes should not be patented as a human I agree…..but poor old America is being painted here as some kinda left out paragon of virtue….hahah that’s the biggest lie ever – Pharmaceutical giants from USA UK and other first world countries and their medical and drug Patents are the same corporations (who are owned and run by people)……that watch poor people die throughout the world without giving a proportionate amount of free humanitarian help to them……….Instead they all make more profits for their rich corporations who monopolise their health care and make wealth from others pain and suffering….

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  • I would be perfectly happy for technology to read genes to be patented. However deciphering the genome?! This is where we end up when we fail to fund public research. Everyone wants to squeeze a buck, understandable if it is the only way you can conduct research, but it stands in stark contrast to say Salks giving the polio vaccine to the world.

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  • 4
    aquilacane says:

    if any of these companies go after you just patent their legal teams approach and copyright their opening statements then sue them.

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  • 5
    old-toy-boy says:

    I feel that the idea of patenting existing genes to be fundamentally immoral. These things are discoveries not inventions. Discovering a gene takes much less effort in comparison to designing and developing a completely new sequence of DNA. I suspect the only reason that the various patent offices around the world would allow discoveries to be patented is to enforce a protection racket on other(s), countries who happen to be already using the products of those genes. The case I recall was some firm in the UK wanted to patent the medicinal properties of turmeric, Enforce it in India where even the lowest of the low knew about those properties. But because India did not have a co-ordinated patent protection system , this firm thought they could get away with it. This firm was not in the business of doing any research, they were simple patent predators, they were in the business of looking for legal loopholes where people can be cheated or exploited. Nearly forgot, the government and the patent office of this country turned a blind eye because they contributed to the wealth/tax of the economy. (A bit like state sponsored piracy).

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  • 6
    old-toy-boy says:

    Note to Mods, If you have to throw in a picture of DNA, Please use a proper one, not a symbolic one, (we all need to maintain and encourage scientific accuracey… )

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  • Note to old-toy-boy, nothing to do with us! Contrary to popular belief, we have no control over either the technical design of the site or the content that gets posted on it. We are here to ensure all comments are within the Terms of Use. That’s it. Nothing else.

    The mods

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  • I hope the same courts will be just as accommodating to the victims of this “invention” when they take the company to court for damages.

    Put another way, I see no particular issue with granting the patient provided the company is responsible for the environmental clean-up at the companies cost.

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  • As most of the commenters here seem to agree, the last thing we need in the US is more patents. The whole system of patent law was created to encourage innovation and sharing of information about inventions. But now our ridiculous patent system has become a major drag on innovation. Many major technology firms spend more money on legal fights patents than they do on R&D.

    Plus, as others have noted, there are some fundamental issues here that relate to whether discoveries should be patentable. You can’t patent gravity and threaten to sue anyone who drops something unless they pay you a license fee! (Or at least you shouldn’t be able to – with our current system, I wouldn’t be surprised if someone couldn’t get away with it.) Similarly, just because you discover that a certain gene has a certain function, that doesn’t mean you should have the exclusive rights to use that information – and prevent others from using it. Especially when human health and life is at stake.

    So contact your congressman and ask him to support patent reform! (EFF has some good resources on this.)

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  • Way back when, it may have been approximately one patent to one invention, or at most a handful of patents to make up one invention.

    These days, an invention like the latest smartphone could be comprised of hundreds or even thousands of patentable components without which it could not work.

    Back to the current topic, a naturally occurring gene-for-whatever is not an invention, it’s a discovery and it really shouldn’t be patentable. Or — just maybe — if you catalog a significant number of genes, it might be a copyrightable work; but that wouldn’t stop someone representing the same facts in a different way, just as we have many copyrightable dictionaries containing essentially the same information.

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