Welcome, Guest! - or
Easy to remember!  »  VinNews.com

New York, NY - Lawsuit Against Trademark of Breast Cancer Genes

Published on: May 12, 2009 10:57 PM
By: CNN
Change text size Text Size  
Bookmark and Share

file photofile photo
New York, NY - Patents on two human genes linked to breast and ovarian cancers are being challenged in court by the American Civil Liberties Union, which argues that patenting pure genes is unconstitutional and hinders research for a cancer cure.

A lawyer in the case says patenting genes would be like patenting an eyeball removed from someone.

“Knowledge about our own bodies and the ability to make decisions about our health care are some of our most personal and fundamental rights,” said ACLU Executive Director Anthony D. Romero. “The government should not be granting private entities control over something as personal and basic to who we are as our genes.”

The ACLU, joined by the Public Patent Foundation, an organization affiliated with Benjamin N. Cardozo School of Law of Yeshiva University, filed the lawsuit today.

Myriad and the research foundation hold patents on the pair of genes—known as BRCA1 and BRCA2—that are responsible for many cases of hereditary breast and ovarian cancers.

Advertisement:

The ACLU contends that patenting the genes limits research and the free flow of information, and as a result violates the First Amendment. The lawsuit also challenges genetic patenting in general, noting that about 20 percent of all human genes are patented—including genes associated with Alzheimer’s disease, muscular dystrophy and asthma.

“It is absolutely our intent that upon victory this will rend invalid patents on many other genes,” said Dan Ravisher, executive director of the Public Patent Foundation and a patent law professor at Yeshiva University’s Benjamin N. Cardozo School of Law. “We just had to pick one case as our case.”

Ravisher offered an analogy to describe the plaintiffs’ argument, saying, “It’s like saying if someone removes your eyeball ... just because you remove the eyeball and wash it off, that doesn’t make the eyeball patentable.
“Now if they create another eyeball out of plastic or metal, then you can patent that.”

Officials at Myriad declined to comment. Tom Parks, the president of the University of Utah foundation, said he was not aware of the lawsuit.

More than 192,000 U.S. women are diagnosed with breast cancer each year—about 5 to 10 percent of those cases have a hereditary form of the disease, according to the National Cancer Institute. Mutation in the genes called BRCA1 and BRCA2—short for breast cancer 1 and breast cancer 2—are involved in many cases of hereditary breast and ovarian cancers, the institute said.

“A woman’s lifetime chance of developing breast and/or ovarian cancer is greatly increased if she inherits an altered BRCA1 or BRCA2 gene,” according to the institute.
Myriad’s patents give it exclusive right to perform diagnostic tests on the genes—forcing other researchers to request permission from the company before they can take a look at BRCA1 and BRCA2, the ACLU said. The patents also give the company the rights to future mutations on the BRCA2 gene and the power to exclude others from providing genetic testing.

The company also charged $3,000 a test, possibly keeping some women from seeking preventive genetic testing, the ACLU says.
“Women whose doctors recommend genetic testing should be able to find out whether they have the gene mutations linked to breast and ovarian cancer so that they are able to make choices that could save their lives, and these patents interfere with their ability to do so,” said Lenora Lapidus, director of ACLU’s Women’s Rights Project.

The plaintiffs in the lawsuit include several patients and more than a dozen universities, genetic specialists and medical associations, such as the Association for Molecular Pathology and the American College of Medical Genetics.

At least one expert said the ACLU should focus more on getting the patents reversed than arguing whether they are constitutional.
“I doubt they’re going to get far with argument that the patent is unconstitutional,” said Arthur Caplan, director of the Center for Bioethics at the University of Pennsylvania.

“A better argument would be that they were wrong when they granted the patent,” he added referring to the patent office.
Caplan said patents are privileges, not “carved in stone.” He noted that the defendants may have identified the genes, but didn’t actually work on them. So, the government could reverse the patents on the genes.

“It’s like trying to patent the moon,” he said. “You didn’t do anything to create it, just discovered something that already existed. You can’t patent things that are publicly available, that anyone can find. You have to create something, make something, do something with the thing.”

 


More of today's headlines

Munich, Germany - Suspected Nazi war criminal John Demjanjuk is fit enough to be held in jail until such time as he goes on trial, German prison doctors say. Mr... Union County, NJ - A Holocaust survivor and longtime New Jersey developer, who was indicted on charges of corruption and had his passport revoked, received special...

 

You can now automatically hide comments - New!

Don't worry, you can always display comments when you need to.

Total24

Read Comments (24)  —  Post Yours »

1

 May 12, 2009 at 10:38 PM Anonymous Says:

They may be right on the moral ground, but you want to encourage people to invent and discover knowledge, than that's the worst move.

2

 May 12, 2009 at 10:24 PM na nach Says:

an interesting topic: I hear the issue why the patent shouldn't be allowed. however there is another side of the coin, if a company gets the rights to themselfs for one thing, then they also have the power and confidence to invest a lot of money since they know no one will come and grab away from them, because they own this issue on there own. so we must look at both sides.

3

 May 13, 2009 at 02:48 AM retired patent attorney Says:

Reply to #2  
na nach Says:

an interesting topic: I hear the issue why the patent shouldn't be allowed. however there is another side of the coin, if a company gets the rights to themselfs for one thing, then they also have the power and confidence to invest a lot of money since they know no one will come and grab away from them, because they own this issue on there own. so we must look at both sides.

the professor at the end of he article is right they did not really invent anything it is a process in a natural gene in the body if they would have found a drug or treatment or engineered the mutation fine, but in laymen terms they own nothing thus its no different then someone trying to patent an arm or leg. What the company could have patented (at least tried to) is its testing methodology to find mutations and possible gene therapy treatment. It is anyone's guess why the patent office allowed genes to be patented probably due to the newness of the matter someone was asleep at the switch, and the patent should not have been granted.

4

 May 13, 2009 at 06:48 AM Satmar Man Says:

Both sides have good, strong arguments.

If we remove the financial incentive, research will slow down, and it will be many years until these type of breakthroughs will develop.

If we grant standard patent rights, it gives private firms long-term control over the products of their research, instead of giving it to the public.

But, if the research did not happen, the public would not have it either.

Why not compromise. Allow the patent, but make it for a shorter term. Long enough to allow profit taking, but half the time than the "guestimated" time the research would have taken otherwise.

This way, the public gets the results in "half the time" and the research firms still have the financial motivation to continue development.

Or, maybe after the first time period expires, allow the patend-holding company to still get a small fee for the use of its "early-expired" patents. Maybe only 20% of what they would have received before.

5

 May 13, 2009 at 07:29 AM Pashuteh Yid Says:

I have always wondered how such stupid patents could be granted, and used an anlogy to the sun, like the author above used to the moon. Maybe if I patent the sun, I can make money off anybody who saves money on lights during the day, since he is using my sun to light his house.

6

 May 13, 2009 at 07:18 AM Anonymous Says:

I absolutely hope they win! In this case, nobody except the patent holder is even allowed to conduct research on that gene sequence (unless they pay for permission), so nobody else can try to use the gene to find a cure or treatment for these cancers. Outrageous! It should never be allowed to patent the human body, or any part thereof.

7

 May 13, 2009 at 07:13 AM gedalye Says:

i would say a 'yeshsivah' university would have a patent argument on a original torah thought etc, looks like its not the kind of yeshivah. wonder why yeshivas like ponovitch. mir, viznitz dont have such problems

8

 May 13, 2009 at 07:39 AM Anonymous Says:

why is it different then canavan or famil dys?? all because of money? same basic concept if it will help the world? let them patent and give SMALL royalties but let the reseaarch continue!

9

 May 13, 2009 at 07:38 AM na nach Says:

Reply to #3  
retired patent attorney Says:

the professor at the end of he article is right they did not really invent anything it is a process in a natural gene in the body if they would have found a drug or treatment or engineered the mutation fine, but in laymen terms they own nothing thus its no different then someone trying to patent an arm or leg. What the company could have patented (at least tried to) is its testing methodology to find mutations and possible gene therapy treatment. It is anyone's guess why the patent office allowed genes to be patented probably due to the newness of the matter someone was asleep at the switch, and the patent should not have been granted.

do getting these patents work with bribes? lobbying? like everything else?!?

10

 May 13, 2009 at 07:55 AM Anonymous Says:

Reply to #6  
Anonymous Says:

I absolutely hope they win! In this case, nobody except the patent holder is even allowed to conduct research on that gene sequence (unless they pay for permission), so nobody else can try to use the gene to find a cure or treatment for these cancers. Outrageous! It should never be allowed to patent the human body, or any part thereof.

Great talking point. But not realistic. The new gene sequence would not be known if they were not patentable.
What is wrong with paying for permission?
Like the Satmar Man says, give them a patent, and good profits for a number of years, then reduce them to a small fee. We must protect the original researcher's right to profit from their research, or it will not be funded by the drug companies, and other for-profit companies who are now funding this lucrative research.

Satmar Man is right. It is the fact that this research is lucrative which generates the incentive for investment.

11

 May 13, 2009 at 08:12 AM Mr. G. Says:

Genae Girard received a diagnosis of breast cancer in 2006, she knew she would be facing medical challenges and high expenses. But she did not expect to run into patent problems.

Ms. Girard took a genetic test to see if her genes also put her at increased risk for ovarian cancer, which might require the removal of her ovaries. The test came back positive, so she wanted a second opinion from another test. But there can be no second opinion. The decision by the government more than 10 years ago allowed the single company, Myriad Genetics, to own the patent on two genes that are closely associated with increased risk for breast cancer and ovarian cancer, and on the testing that measures that risk.

Ms. Girard, 39, who lives in the Austin, Tex., area, also filed a lawsuit against Myriad and the Patent Office, challenging the decision to grant a patent on a gene to Myriad and companies like it. She was joined by four other cancer patients, by professional organizations of pathologists with more than 100,000 members and by several individual pathologists and genetic researchers.

12

 May 13, 2009 at 08:09 AM Satmar Man Says:

Reply to #5  
Pashuteh Yid Says:

I have always wondered how such stupid patents could be granted, and used an anlogy to the sun, like the author above used to the moon. Maybe if I patent the sun, I can make money off anybody who saves money on lights during the day, since he is using my sun to light his house.

Why not patent the Sun if you created it?

Hashem created it, and for his "fee" he wants us to obey him.

But, to respond to your post. I was not kidding. If you had researched and developed the technology to create a giant light source, call it a sun, or it can be an illuminating sattelite which orbits your planet.
Let's say we find a cold, dark planet, too far from any useful star. We can't live there without great difficulty.
But, you, the great scientist, Dr. Pashuteh Yid, Ph.D., figured out a way to place something in orbit around this planet, which would give light, heat, and all the correct radiating wavelengths needed, in the proper intensities, YOU SHOULD HAVE THE RIGHT TO CHARGE PEOPLE TO LIVE UNDER IT.

If someone else funds the actual building, he will pay you a royalty on the technology YOU invented.

Just like when we finally build settlements on the moon, or airless planets. We will develop underground cities, or cities under domes of some type. We will artificially provide air, heat and water. Every resident will be required to pay an AIR FEE or "invited" to leave. There would be no choice. Just because YOU need something, does not give you the right to take it for free... including air. You don't go to live in those places unless you know you will be able to pay your Air Fees.
If your situation changes, you would be given, let's say, 7 days to "Pay up or leave" at your own expense. Maybe you will be required to post a return ticket as part of your license to stay.
But, bottom line is:
Just because YOU need something, does not give you the right to take it for free.

Just because we all NEED those genes, does not give us the right to take them from those who developed them. We must pay for them.
You need a place to live. You may not rent one of my apartments for free. Pay or get out. That is reality. (no, I do not own any property.)

13

 May 13, 2009 at 08:16 AM Anonymous Says:

Lets say you undertake an expensive expedition to discover the North Pole. It costs millions and you finally reach your goal and discover it. Does that make it yours? While you are there you discover that Inuits/Eskimos have been living there for centuries. Can you take their land away from them becuause you spent money to find it? No. Same here. THe drug companies/universities spent millions to discover this gene. But it belongs to the person in whose body it was found. And the millions of pther people in whose body it is found. They can exploit their first discoverer advantage by tinkering with it and finding cures but it doesnt belong to them. They cannot prevent other scientists from tinkering with it. This was a mistake by the patent office or someone was paid off to grant it. It must be reversed. The patent has also made mistakes in granting patents to "ideas" such as a technique to avoid taxes legally. THese should not be patentable.

14

 May 13, 2009 at 08:37 AM Anonymous Says:

Reply to #13  
Anonymous Says:

Lets say you undertake an expensive expedition to discover the North Pole. It costs millions and you finally reach your goal and discover it. Does that make it yours? While you are there you discover that Inuits/Eskimos have been living there for centuries. Can you take their land away from them becuause you spent money to find it? No. Same here. THe drug companies/universities spent millions to discover this gene. But it belongs to the person in whose body it was found. And the millions of pther people in whose body it is found. They can exploit their first discoverer advantage by tinkering with it and finding cures but it doesnt belong to them. They cannot prevent other scientists from tinkering with it. This was a mistake by the patent office or someone was paid off to grant it. It must be reversed. The patent has also made mistakes in granting patents to "ideas" such as a technique to avoid taxes legally. THese should not be patentable.

Did you ever hear of Homesteading?

You explored, travelled, and took yourself a piece of land. Your expense, your efforts. This made it yours.
Others came to live near you. They needed to respect YOUR borders and fences. If they wanted to live on the land you staked out, THEY PAID YOU.

Yes, there may be some mistakes in the patent rulings/decisions of the past, which may need correcting.
But the concept that just because we all want/need the product/concept or idea should give us the right to use it without paying the discoverer his fee.

The truth of the matter is, if you take the profit away from research, we will not move forward, and the best medical research will not happen.
So, keeping it profitable will save lives.
Taking the profit out will cost lives.

15

 May 13, 2009 at 09:51 AM Anonymous Says:

People are missing the point. No one is arguing that you can't patent the TEST. If the company develops a process to test for a gene, of course they can patent the process. But patenting the gene itself is like patenting the arm or the leg, and shouldn't be allowed.

16

 May 13, 2009 at 09:51 AM Anonymous Says:

Reply to #14  
Anonymous Says:

Did you ever hear of Homesteading?

You explored, travelled, and took yourself a piece of land. Your expense, your efforts. This made it yours.
Others came to live near you. They needed to respect YOUR borders and fences. If they wanted to live on the land you staked out, THEY PAID YOU.

Yes, there may be some mistakes in the patent rulings/decisions of the past, which may need correcting.
But the concept that just because we all want/need the product/concept or idea should give us the right to use it without paying the discoverer his fee.

The truth of the matter is, if you take the profit away from research, we will not move forward, and the best medical research will not happen.
So, keeping it profitable will save lives.
Taking the profit out will cost lives.

“ Did you ever hear of Homesteading?

You explored, travelled, and took yourself a piece of land. Your expense, your efforts. This made it yours."

That's not homesteading - that's called squatting. Homesteading is legal where allowed by law, and squatting otherwise. Homesteading is no longer available in the U.S. since 1974, I believe.

17

 May 13, 2009 at 09:46 AM Charles Hall Says:

I can't believe that on this supposedly frum site there has been no mention of the halachic issues regarding intellectual property, and whether I have a right under Torah law or Rabbinic law to control the use of one of my scientific discoveries.

18

 May 13, 2009 at 09:41 AM Anonymous Says:

Reply to #12  
Satmar Man Says:

Why not patent the Sun if you created it?

Hashem created it, and for his "fee" he wants us to obey him.

But, to respond to your post. I was not kidding. If you had researched and developed the technology to create a giant light source, call it a sun, or it can be an illuminating sattelite which orbits your planet.
Let's say we find a cold, dark planet, too far from any useful star. We can't live there without great difficulty.
But, you, the great scientist, Dr. Pashuteh Yid, Ph.D., figured out a way to place something in orbit around this planet, which would give light, heat, and all the correct radiating wavelengths needed, in the proper intensities, YOU SHOULD HAVE THE RIGHT TO CHARGE PEOPLE TO LIVE UNDER IT.

If someone else funds the actual building, he will pay you a royalty on the technology YOU invented.

Just like when we finally build settlements on the moon, or airless planets. We will develop underground cities, or cities under domes of some type. We will artificially provide air, heat and water. Every resident will be required to pay an AIR FEE or "invited" to leave. There would be no choice. Just because YOU need something, does not give you the right to take it for free... including air. You don't go to live in those places unless you know you will be able to pay your Air Fees.
If your situation changes, you would be given, let's say, 7 days to "Pay up or leave" at your own expense. Maybe you will be required to post a return ticket as part of your license to stay.
But, bottom line is:
Just because YOU need something, does not give you the right to take it for free.

Just because we all NEED those genes, does not give us the right to take them from those who developed them. We must pay for them.
You need a place to live. You may not rent one of my apartments for free. Pay or get out. That is reality. (no, I do not own any property.)

Satmar Man says:
"Just because we all NEED those genes, does not give us the right to take them from those who developed them."

They did not DEVELOP the genes, they discovered them. Big difference there.

19

 May 13, 2009 at 10:22 AM Raphael Kaufman Says:

The value of the Patent system, and the main reason it was instituted is that patent applicants must publish their discoveries. The new invention or process then becomes public knowledge. The period of exclusivity encourages inventors to produce new ideas, after which they become are available to others to use, modify or improve. Note that many companies choose not to patent some of their discoveries specifically to keep them secret.

20

 May 13, 2009 at 10:50 AM Anonymous Says:

Reply to #18  
Anonymous Says:

Satmar Man says:
"Just because we all NEED those genes, does not give us the right to take them from those who developed them."

They did not DEVELOP the genes, they discovered them. Big difference there.

You are playing a semantic game.

Develop, discover, engineer, invent, ....

If there is a piece of previously untitled land out there, and you only find it and use it for it to be your under the Homesteading concept.

Wait and see. As we travel to other planets, people will "Claim" planets and moons for themselves or their countries.

Miners used to cross these United States, searching for areas flush with gold or whatever they were looking for. Then, they filed their claim. It was theirs!

But... it was there all the time.....

Yes, but THEY found it! They found a way to use it.
They can license it.
YOU can use it. Just pay for the right to do so.

If we kill the rights to patent genes, here is what will happen.

Some will just kill that kind of research programs from their company of university.

Others will continue, just keep everything secret. They will never file for any patents at all. They will simply sell rights in secret. They will need to use KGB type secrecy, but they will.
And... this will slow down progress, and cost many, many lives.

21

 May 13, 2009 at 12:01 PM Salty Says:

Reply to #14  
Anonymous Says:

Did you ever hear of Homesteading?

You explored, travelled, and took yourself a piece of land. Your expense, your efforts. This made it yours.
Others came to live near you. They needed to respect YOUR borders and fences. If they wanted to live on the land you staked out, THEY PAID YOU.

Yes, there may be some mistakes in the patent rulings/decisions of the past, which may need correcting.
But the concept that just because we all want/need the product/concept or idea should give us the right to use it without paying the discoverer his fee.

The truth of the matter is, if you take the profit away from research, we will not move forward, and the best medical research will not happen.
So, keeping it profitable will save lives.
Taking the profit out will cost lives.

This is all about the ability to improve something that you own, and profit from the effort that you put into it.

According to the Plaintifs argument, we should just do away with all private property ownership. I mean, I didn't make the land that I own, and it was always there for anyone else to come along and see. So why should I get to own a parcel of land that is physically available to everyone else?
Well, If I can't profit from my use of the land (i.e. profit from crops, mineral mining, or rent from buildings that I build on the land), then what's the use of me putting any effort or money into the land in the first place? Why should a farmer plant and grow crops that he can take to the market to sell, when I have the ability to go on his land and take for free anything that he's put in the hard work to grow?

There are over 30,000 genes in the human genome and we only know a tiny fraction of what those genes control. If this lawsuit wins, I believe that this will completly kill the genetic research market.
Yes, universities may still continue to do some research on genes, but if you do your research, you'll find that even when a university uses public money to research a gene, they all still privately patent the gene and license its use out, for profit, to another lab. That lab is very often one owned by the university itself. If you take away the profit, I believe that you'll see that university funding going into other projects and not into profitless genetic research.

That's my two cents!

Disclosure:
I am an employee at Myriad Genetics but these views are all my own personal views and should not be seen as an official position or statement from Myriad Genetics. I'm not an officer or marketting guy, just a "regular" worker who enjoys working for this company and finds the subject being discussed very interesting.


22

 May 13, 2009 at 11:57 AM Anonymous Says:

If a guy needs a guarantee of ownership over your genes to study and discover them, maybe we would rather have someone else studying them. Most of this research goes on in universities with government and non-profit grant money anyway.

23

 May 14, 2009 at 08:24 PM Pashuteh Yid Says:

Reply to #12  
Satmar Man Says:

Why not patent the Sun if you created it?

Hashem created it, and for his "fee" he wants us to obey him.

But, to respond to your post. I was not kidding. If you had researched and developed the technology to create a giant light source, call it a sun, or it can be an illuminating sattelite which orbits your planet.
Let's say we find a cold, dark planet, too far from any useful star. We can't live there without great difficulty.
But, you, the great scientist, Dr. Pashuteh Yid, Ph.D., figured out a way to place something in orbit around this planet, which would give light, heat, and all the correct radiating wavelengths needed, in the proper intensities, YOU SHOULD HAVE THE RIGHT TO CHARGE PEOPLE TO LIVE UNDER IT.

If someone else funds the actual building, he will pay you a royalty on the technology YOU invented.

Just like when we finally build settlements on the moon, or airless planets. We will develop underground cities, or cities under domes of some type. We will artificially provide air, heat and water. Every resident will be required to pay an AIR FEE or "invited" to leave. There would be no choice. Just because YOU need something, does not give you the right to take it for free... including air. You don't go to live in those places unless you know you will be able to pay your Air Fees.
If your situation changes, you would be given, let's say, 7 days to "Pay up or leave" at your own expense. Maybe you will be required to post a return ticket as part of your license to stay.
But, bottom line is:
Just because YOU need something, does not give you the right to take it for free.

Just because we all NEED those genes, does not give us the right to take them from those who developed them. We must pay for them.
You need a place to live. You may not rent one of my apartments for free. Pay or get out. That is reality. (no, I do not own any property.)

As many have pointed out, there is a big difference between inventing something new, and reporting on a sequence of letters (ACGT) that you happened to work out. You must create a new entity to deserve a patent, not uncover something preexisting in nature. Why did Maxwell (or Faraday, and others in that chevra) not patent his equations, and prevent everybody from using electricity or magnetism? Why didn't Watson patent DNA to begin with, and prevent anybody else from working on any genes, period? Can the discoverer of the electron have patented it, so nobody could study it and develop electronic devices. It is so totally absurd.

If you develop a new technology or device or machine which never existed before, you of course deserve a patent. But when you report on something which has already existed, and you didn't even modify it in any way, how can you think of getting a patent? You deserve the recognition of being first, but not the rights to prevent others from using it.

As far as incentive goes, the incentive to cure cancer is always there and will drive research. Voiding these kinds of silly patents will not have any effect on the big picture. It is the cure that is the big prize and will pay off handsomely. These genes have not cured anything.

24

 May 18, 2009 at 11:12 AM Anonymous Says:

#1. These genes & their variants were discovered with government grants, not just private funds.

#2. These genes & their variants are products of nature, according to laws of nature. Should Newton have been able to patent the law of gravity? Would undergraduate physics students have to pay royalties every time they used gravitational equations?

25

Sign-in to post a comment

Scroll Up
Advertisements:

Sell your scrap gold and broken jewelry and earn hard cash sell gold today!