Gene patents in the United States: Difference between revisions
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#REDIRECT [[Biological patents in the United States]] |
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{{Patent law}} |
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A '''gene patent''' is a [[patent]] on a specific isolated [[gene]] sequence, its [[chemical composition]], the processes for obtaining or using it, or a combination of such [[Claim (patent)|claims]]. Gene patents are a part of the broader category of [[biological patent]]s. |
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Gene patents may claim the isolated natural sequences of genes, the use of a natural sequence for purposes such as diagnostic testing, or a natural sequence that has been altered by adding a promoter or other changes to make it more useful. In the United States, patents on genes have only been granted on isolated gene sequences with known functions, and these patents cannot be applied to the naturally occurring genes in humans or any other naturally occurring organism.<ref>{{cite web|title=Federal Register - Utility Examination Guidelines - Comments and Responses|url=http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=2001_register&docid=01-322-filed|date=January 5, 2001|accessdate=April 5, 2010}} See Comment 2 in which this objection is specifically raised and addressed.</ref> |
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== History == |
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The United States has been patenting chemical compositions based upon human products for over 100 years. |
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The first patent for a human product was granted on March 20, 1906 for a purified form of [[adrenaline]]. It was challenged and upheld in Parke-Davis v. Mulford <ref>Parke-Davis & Co. v. H.K. Mulford Co., 189 F. 95 (C.C.S.D.N.Y. 1911), Learned Hand, J.</ref> [[Learned Hand|Judge Hand]] argued that natural substances when they are purified are more useful than the original natural substances. <ref>Dutfield, Graham. "DNA Patenting: Implications for Public Health Research." Bulletin of the World Health Organization, May 2006, Volume 85, Issue 5.</ref> |
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In 1980, the U.S. Supreme Court, in ''[[Diamond v. Chakrabarty]]'', upheld the first patent on a newly created living organism, a bacterium for digesting crude oil in oil spills. The patent examiner for the [[United States Patent and Trademark Office]] had rejected the patent of a living organism, but Chakrabarty appealed. As a rule, raw natural material is generally rejected for patent approval by the USPTO. The Court ruled that as long as the organism is truly "man-made," such as through genetic engineering, then it is patentable. Because the DNA of Chakrabarty's organism was modified, it was patentable. |
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== Controversy == |
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Law professor Rebecca S. Eisenberg argues that gene patents produce an "anticommons" at odds with an ideal scientific [[commons]].<ref>http://journals.lww.com/academicmedicine/fulltext/2002/12001/why_the_gene_patenting_controversy_persists.9.aspx </ref> |
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Others claim that patents have not created this "anticommons" effect on research, based on surveys of scientists.<ref>http://www.thehastingscenter.org/Publications/BriefingBook/Detail.aspx?id=2174</ref><ref> [http://www.scienceprogress.org/2009/10/do-gene-patents-hurt-research/ Science Progress Blog]</ref> |
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Professional societies of [[pathologists]] have criticized patents on disease genes and exclusive licenses to perform DNA diagnostic tests. In the 2009 Myriad case, doctors and pathologists complained that the patent on [[BRCA1]] and [[BRCA2]] genes prevented patients from receiving second opinions on their test results. Pathologists complained that the patent prevented them from carrying out their medical practice of doing diagnostic tests on patient samples and interpreting the results.<ref name=Sweet>{{cite news|title=Association For Molecular Pathology, et al., vs. United States Patent and Trademark Office, et al. |date=March 29, 2010 |url=http://graphics8.nytimes.com/packages/pdf/national/20100329_patent_opinion.pdf|format=PDF|work=The New York Times|accessdate=March 30, 2010}}</ref> |
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Another example is a series of lawsuits filed by the Alzheimer’s Institute of America (AIA) starting in 2010, concerning a gene patent it controls. The patent covers a genetic mutation that predisposes to Alzheimer's, and more importantly, it applies to transgenic mice carrying the mutation. These mice are widely used in Alzheimer's research, both by academic scientists doing basic research and by companies that use the mice to test products in development. Two of these suits are directed to companies that were started based on inventions made at universities (Comentis and Avid), and in each of those cases, the university has been sued along with the company. While none of the suits target universities that are conducting basic research using the mice, one of the suits is against Jackson Labs, a nonprofit company that provides transgenic mice to academic and commercial researchers and is an important repository of such mice.<ref>[http://www.nature.com/news/2011/110405/full/472020a.html Patent dispute threatens US Alzheimer's research; Lawsuit could expose hundreds of scientists to property-rights litigation.] Erika Check Hayden, 5 April 2011, ''Nature'' 472, 20 (2011) | {{doi|10.1038/472020a}}</ref> |
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While there is some controversy concerning the patenting of isolated genes and the way those patents are used, and there is controversy concerning patents on the diagnostic uses of genes (the real source of dispute in the Myriad court case), it is difficult to find controversy surrounding patents on genes that are used to manufacture therapeutic proteins (for an example of patents on therapeutic proteins, the drug candidate that is the subject of the early part of the movie '[[Extraordinary Measures]]' was covered in part by a classic gene patent, US Patent 6,770,468.[http://patft1.uspto.gov/netacgi/nph-Parser?patentnumber=6770468]) There is also little controversy concerning the role of gene patents in the chemical industry—for instance in the manufacture of enzymes used in consumer products or industrial processes.[http://nzic.org.nz/ChemProcesses/biotech/12H.pdf] |
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==Myriad Genetics case== |
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{{Main|Association for Molecular Pathology v. Myriad Genetics}} |
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''[[Association for Molecular Pathology v. Myriad Genetics]]'' [[Docket (court)|No. 11-725]] is a case challenging the [[Patentable subject matter|validity]] of [[gene patent]]s in the United States, specifically challenging certain claims in issued [[patent]]s owned or controlled by [[Myriad Genetics]] that cover [[DNA extraction|isolated DNA]] sequences, methods to diagnose propensity to cancer by looking for mutated [[DNA]] sequences, and methods to identify drugs using isolated DNA sequences. |
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The case was originally heard in the [[United States District Court for the Southern District of New York]], which ruled that all the challenged claims were not patent eligible. Myriad then appealed to the [[United States Court of Appeals for the Federal Circuit]]. The Circuit court overturned the previous decision in part, ruling that isolated DNA which does not exist alone in nature ''can'' be patented and that the drug screening claims were valid, and confirmed in part, finding the diagnosic claims unpatentable. The plaintiffs appealed to the Supreme Court, which granted cert and remanded the case back to the Federal Circuit. The Federal Circuit did not change its opinion, so on September 25, 2012, the American Civil Liberties Union and the Public Patent Foundation filed a petition for certiorari with the Supreme Court with respect to the second Federal Circuit Decision. As of December 2012 isolated genes remain patentable in the US. |
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On November 30, 2012, the [[Supreme Court of the United States|Supreme Court]] agreed to hear the plaintiffs' appeal of the Federal Circuit's ruling. It is anticipated that the court will rule on whether isolated genes are patentable.<ref>{{cite web |title=Supreme Court Grants Myriad’s Petition for Cert. |url=http://www.natlawreview.com/article/supreme-court-grants-myriad-s-petition-cert|publisher=Schwegman, Lundberg & Woessner, P.A. |work=The National Law Review|date=December 3, 2012|accessdate=December 5, 2012}}</ref> |
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== See also == |
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* [[Human Genome Project]] |
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* [[Implications of US gene patent invalidation on Australia]] |
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== References == |
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<!--See http://en.wikipedia.org/wiki/Wikipedia:Footnotes for an explanation of how to generate footnotes using the <ref(erences/)> tags--> |
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{{Reflist|2}} |
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== External links == |
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*[http://www.wileyrein.com/newsroom.cfm?sp=newsreleases&id=767 Amicus Brief by Dr. James Watson] |
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*[http://www.genomicslawreport.com/ Genomics Law Report.] Newsletter published by law firm of Robinson Bradshaw & Hinson. |
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*[http://genomics.energy.gov/ The Human Genome Project information pages] |
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*[http://www.ornl.gov/sci/techresources/Human_Genome/elsi/patents.shtml Human Genome Project pages on Genetics and Patenting] |
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*[http://www.wipo.int/wipo_magazine/en/2006/05/article_0008.html Bioethics and Patent Law: The Cases of Moore and the Hagahai People] by Anja von der Ropp and Tony Taubman, ''[[WIPO]] Magazine'', September 2006. |
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{{DEFAULTSORT:Gene Patent}} |
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[[Category:Genetics]] |
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[[Category:Biological patent law]] |
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[[Category:Science and law]] |
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Latest revision as of 19:13, 13 June 2013
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