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Supreme Court to Decide if Human Genes Can be Patented
Life News ^ | December 3, 2012 | Steven Ertelt

Posted on 12/03/2012 2:43:57 PM PST by NYer

The Supreme Court will decide whether human genes can be patented.

From the Reuters story:

The nation’s highest court in a brief order agreed to review a case over whether Myriad Genetics Inc may patent two genes linked to hereditary breast and ovarian cancer. In a 2-1 ruling on August 16, a panel of the U.S. Federal Circuit Court of Appeals in Washington, D.C., upheld the biotechnology company’s right to patent “isolated” genes that account for most inherited forms of the two cancers.

Actually, my headline, Supremes to Decide Others Can Own Your Genes, is a bit misleading. If the Supremes allow genes to be patented, that will not mean that the patent holder actually own bits of you. But it would mean that the company would possess the exclusive right to commercially benefit from the use of the patented genes in the manufacture and testing of products during the term of the patent. If others wanted to use the same gene in research or manufacture, they would have to pay a licensing fee.

Here’s the problem: A patent is supposed to protect a human invention. A gene–even if isolated–is not a human invention. It occurs naturally. In that sense, I don’t see the controversy. Genes should not be patentable.

But more than the niceties of pure law are involved. For example, opponents of patenting genes claim–and I think they are right–that allowing a natural part of the body to be patented opens the human body to commoditization. Plus:

Sandra Park, a lawyer for the ACLU Women’s Rights Project who worked on the appeal, in a phone interview called Friday’s decision to take the case a “huge step” toward ensuring the provision of needed medical care and research and that patients can access their own genetic information. She estimated that more than 4,000 of the roughly 22,000 genes in the human genome have U.S. patents. “For many people, understanding their genetic risk of disease is crucial to planning medical care,” she said. “People need to understand that risk so they can plan for screening and other major medical decisions with their doctors.”

Supporters of the patent claim that such protections are essential to the overarching research project:

Supporters of Salt Lake City-based Myriad, in contrast, have said denying patent protection could slow advances in personalized medicine, which uses genetic tests to identify specific therapies for individual patients. Peter Meldrum, Myriad’s chief executive, said in a statement that the Supreme Court’s ultimate decision could affect the providing of medical treatment to hundreds of millions of people. He said Myriad’s own diagnostic test has helped nearly 1 million people learn about their risk of hereditary cancer. “The discovery and development of pioneering diagnostics and therapeutics require a huge investment and our U.S. patent system is the engine that drives this innovation,” he said.

I’m one of those old fashioned types: If the law needs to be modernized for the good of the Republic, by all means fix it. In other words, if our science has moved to the place that current parameters of patent law unduly stifle progress, revise the definition of what is patentable, and the terms thereof, via the legislative process. But don’t have judges just decide that because they no longer like the policy consequences of the law, they can just unilaterally change its definitions and meaning.

Right. I knew you needed a good laugh.

(In a related story, the European Court refused to allow the patenting of embryonic stem cell products because they are derived from destroying embryos.)


TOPICS: News/Current Events
KEYWORDS: bioethics; gentics; scotus
LifeNews.com Note: Wesley J. Smith, J.D., is a special consultant to the Center for Bioethics and Culture. He writes at his blog, Secondhand Smoke.
1 posted on 12/03/2012 2:44:04 PM PST by NYer
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To: netmilsmom; thefrankbaum; Tax-chick; GregB; saradippity; Berlin_Freeper; Litany; SumProVita; ...

Catholic ping!


2 posted on 12/03/2012 2:45:28 PM PST by NYer ("Before I formed you in the womb I knew you." --Jeremiah 1:5)
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To: NYer

Anyone know what Constitutional issue is raised here to justify SCOUTS involvement?


3 posted on 12/03/2012 2:48:37 PM PST by PapaNew
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To: NYer
Couldn't God make a claim to prior art? :-)

But seriously, how do you patent something you did not create but simply catalogued? Maybe a process patent on how you did it, but the gene itself?

4 posted on 12/03/2012 2:49:24 PM PST by 5thGenTexan
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To: NYer
Try again...

Anyone know what Constitutional issue is raised here to justify SCOTUS involvement?

5 posted on 12/03/2012 2:49:24 PM PST by PapaNew
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To: PapaNew

“Congress shall have the power...To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;” From Article 1 Section 8.

This is the relevant section of the U.S. Constitution. While I am a proponent of biotechnology and intellectual property - I don’t think one should be able to patent the use of a gene. Patents are for “Authors and Inventors”, they did not “invent” the gene in question - although they did discover it. Do they have the “exclusive right” to their “discoveries” that they did not invent? I don’t think so.


6 posted on 12/03/2012 2:59:22 PM PST by allmendream (Tea Party did not send GOP to D.C. to negotiate the terms of our surrender to socialism)
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To: NYer

I don’t grok the whole story, but it sounds like cultured “ordinary” human cells (i.e. not fetal, not that secular law would care, but it matters in pro-life philosophy) are being coaxed genetically into doing tricks in Petri dishes, and this is what is being proposed for patenting, like one might patent a variety of fruit tree.

Now if you’re talking about breeding people with these designer genes, that’s a whole nother brouhaha.


7 posted on 12/03/2012 2:59:56 PM PST by HiTech RedNeck (How long before all this "fairness" kills everybody, even the poor it was supposed to help???)
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To: NYer

IMO, the individual should be the owner of their own genes.

If a company discovers an important gene, they should have to get permission and a license to utilize it. The owner should get compensation on each instance of it’s utilization.

If a company devises a new gene, it could patent that. However, if that gene surfaced in an individual naturally, that person and not the gene manipulator would own the gene going forward.

There’s plenty of opportunity for all parties to have a financial stake here, and reasonably, if greed doesn’t rule the day.


8 posted on 12/03/2012 3:05:26 PM PST by DoughtyOne (Hurricane Sandy..., a week later and over 60 million Americans still didn't have power.)
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To: DoughtyOne

This might push the concept of a cultivar a bit too much. They just copied somebody’s cancer gene. They could patent the process for copying, but not the copy.


9 posted on 12/03/2012 3:10:22 PM PST by HiTech RedNeck (How long before all this "fairness" kills everybody, even the poor it was supposed to help???)
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To: HiTech RedNeck

You first comment seemed to imply I’m trying to set up something that is unreasoned. Could be...

The cancer gene part you mentioned sounds reasonable to me.


10 posted on 12/03/2012 3:38:41 PM PST by DoughtyOne (Hurricane Sandy..., a week later and over 60 million Americans still didn't have power.)
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To: DoughtyOne

I mean the folks who want it to be patented might push the concept of the most analogous thing I can think of, a cultivar of some agricultural plant, a bit far. They copied this gene out of a source. They didn’t breed it in.


11 posted on 12/03/2012 3:42:26 PM PST by HiTech RedNeck (How long before all this "fairness" kills everybody, even the poor it was supposed to help???)
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To: HiTech RedNeck

Okay, I understand. We agree then. Thank you.


12 posted on 12/03/2012 3:50:06 PM PST by DoughtyOne (Hurricane Sandy..., a week later and over 60 million Americans still didn't have power.)
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To: NYer

Patenting Human Genes? Hello? Can you say Levi’s, Wrangler, Lee?
All those are for humans, and they are patented.


13 posted on 12/03/2012 4:06:22 PM PST by irishtenor (Everything in moderation, however, too much whiskey is just enough... Mark Twain)
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To: NYer

One way around this would for some small portion of the population to file for a provisional patent on their own Genes. It’s relatively inexpensive. Just a few bucks and no lawyers involved...

After one year of not filing for a patent, it automatically passes into public domain and becomes non-patentable. If one person in 10 did this, it would cover all of the human genes out there.


14 posted on 12/03/2012 4:23:15 PM PST by babygene
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To: NYer
An oldie by goodie: Patenting Life, by Michael Crichton
15 posted on 12/03/2012 4:35:23 PM PST by E. Pluribus Unum ("The more numerous the laws, the more corrupt the state." - Cornelius Tacitus, Roman Senator)
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To: PapaNew
Anyone know what Constitutional issue is raised here to justify SCOUTS involvement?

Before the federal government packed the US Patent Office and all other federal bureaucracies with illiterate, affirmative-actioned Eric Holder's people, software and genes were not patentable. Once Eric Holder's people started running the show, they patented ANYTHING, since they didn't understand any of it anyway.

Patenting Life, by Michael Crichton

16 posted on 12/03/2012 4:40:21 PM PST by E. Pluribus Unum ("The more numerous the laws, the more corrupt the state." - Cornelius Tacitus, Roman Senator)
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To: PapaNew
Anyone know what Constitutional issue is raised here to justify SCOUTS involvement?

Before the federal government packed the US Patent Office and all other federal bureaucracies with illiterate, affirmative-actioned Eric Holder's people, software and genes were not patentable. Once Eric Holder's people started running the show, they patented ANYTHING, since they didn't understand any of it anyway.

Patenting Life, by Michael Crichton

17 posted on 12/03/2012 4:40:36 PM PST by E. Pluribus Unum ("The more numerous the laws, the more corrupt the state." - Cornelius Tacitus, Roman Senator)
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To: allmendream

Thanks. I feel better that at least they’re in the right ballpark.


18 posted on 12/03/2012 6:13:17 PM PST by PapaNew
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To: NYer; Lurking Libertarian; JDW11235; Clairity; TheOldLady; Spacetrucker; Art in Idaho; GregNH; ...

FReepmail me to subscribe to or unsubscribe from the SCOTUS ping list.

19 posted on 12/05/2012 7:27:48 AM PST by BuckeyeTexan
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To: PapaNew

Article 1 section 8, which gives the fedgov the authority to issue patents and thus puts the federal laws passed pursuant thereto within SCOTUS jurisdiction.


20 posted on 12/16/2012 8:22:53 PM PST by piytar (The predator-class is furious that their prey are shooting back.)
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To: piytar
Article 1 section 8, which gives the fedgov the authority to issue patents and thus puts the federal laws passed pursuant thereto within SCOTUS jurisdiction.

Thanks - you got me in the right church. Looks like the pew is Clause 8, I believe.

21 posted on 12/16/2012 9:44:02 PM PST by PapaNew
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