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New York - Federal Court Upholds Patenting on Human Genes

Published on: August 1, 2011 09:30 PM
By: AP
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New York - A federal court said that human genes can be patented, reversing a lower court’s ruling that involved a test for breast cancer but which could have hurt research and profits for drugmakers and agriculture companies.

Judge Alan Lourie’s ruling says the genes can be patented because the isolated DNA has a “markedly different chemical structure” from DNA within the body. The U.S. Patent and Trademark Office has been awarding patents on human genes for almost 30 years.

“The ability to visualize a DNA molecule through a microscope, or by any other means, when it is bonded to other genetic material, is worlds apart from possessing an isolated DNA molecule that is in hand and usable,” Lourie wrote for a 2-to-1 majority. “It is the difference between knowledge of nature and reducing a portion of nature to concrete form, the latter activity being what the patent laws seek to encourage and protect.”

The lawsuit concerned two patents held by Myriad Genetics Inc. of Salt Lake City. Myriad’s BRACAnalysis test looks for mutations on the breast cancer predisposition gene, or BRCA. Those mutations are associated with much greater risks of breast and ovarian cancer. The American Civil Liberties Union argued that genes couldn’t be patented, and in March 2010, a New York district court agreed.

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“Today’s ruling is a blow to the idea that patent law cannot impede the free flow of ideas in scientific research,” said Chris Hansen, a staff attorney with the ACLU Speech, Privacy and Technology Project.

ACLU Attorney Sandra Park said the ACLU will consult with its clients to decide whether to appeal or seek another remedy. The plaintiffs include geneticists who said they were not able to continue their work because of Myriad’s patents, along with breast cancer and women’s health groups, patients, and groups of researchers, pathologists, and laboratory professionals.

Myriad was able to continue selling the BRACAnalysis test despite the previous ruling from Judge Robert Sweet of the U.S. District Court for the Southern District of New York.

Lourie ruled against Myriad on five claims, saying the company cannot patent comparisons and analysis of DNA sequences. The company said it still holds 237 claims that are not affected by the decision. The company’s shares rose 2.3 percent in aftermarket trading.


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Read Comments (8)  —  Post Yours »

1

 Aug 01, 2011 at 11:30 PM Pereles Says:

from where (or whom) do they get the genes in the first place? Not sure how this works, but I'm thinking that if people are donating their cells, shouldn't everyone else benefit without huge profits for the pharmaceuticals? Just asking, although I don't fully understand the concept...

2

 Aug 02, 2011 at 12:25 AM PappaBarAbba Says:

Can G-d be sued for breaching the patent. If so, can the various houses of G-d in each religious domination be taken in payment?

3

 Aug 02, 2011 at 05:21 AM Anonymous Says:

Reply to #1  
Pereles Says:

from where (or whom) do they get the genes in the first place? Not sure how this works, but I'm thinking that if people are donating their cells, shouldn't everyone else benefit without huge profits for the pharmaceuticals? Just asking, although I don't fully understand the concept...

you're right, you don't understand how this works.

4

 Aug 02, 2011 at 05:22 AM Anonymous Says:

Reply to #2  
PappaBarAbba Says:

Can G-d be sued for breaching the patent. If so, can the various houses of G-d in each religious domination be taken in payment?

what did you think was so clever about this comment?

5

 Aug 02, 2011 at 08:28 AM acomment Says:

And when the gene is found in a person, do they own them too?

6

 Aug 02, 2011 at 09:35 AM Chaim_Ben-Yehuda Says:

Now what leads me to think that comment #3 and comment #4 came from the same (anonymous) contributor?

7

 Aug 02, 2011 at 11:14 AM sandymoos Says:

Reply to #4  
Anonymous Says:

what did you think was so clever about this comment?

Yov've got just too much time on your hands....

8

 Aug 02, 2011 at 12:41 PM ComeOn Says:

Anything that is bad for the ACLU is good for America.

9

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