U.S. Says Genes Should Not Be Eligible for Patents

Gene patents have not been a "problem" in the same way as software patents. And, unlike software patents, they are more likely to represent a significant R&#38;D investment by the applicant.<p>(I am the author of the paper that showed how much of the human genome is patented. "Intellectual property landscape of the human genome", Science 2005. <a href="http://www.sciencemag.org/cgi/content/summary/310/5746/239" rel="nofollow">http://www.sciencemag.org/cgi/content/summary/310/5746/239</a> )<p>The brief filed by the government does not alter the law, it's just a letter to the court that says "this is the current, consensus opinion of the executive branch." The current law states that DNA (or any other naturally occurring chemical) cannot be patented unless it is significantly transformed from it's natural state. However, purification of the DNA is usually enough to render it patentable. That, of course, is not difficult with current molecular biology techniques.<p>But, like any other technology, patent applications covering DNA must meet many other requirements including non-obviousness and usefulness. Thus, the claims granted by the USPTO have become increasingly narrow as the field has matured and there is more prior art. That is, just like any new technology area the initially granted patents are broad, but they narrow over time.<p>So, that is a long way of saying, this might be a tempest in a teapot. Especially because most court watchers expect the Federal Circuit to reverse the District Court and keep the status quo.

Good.<p>DNA is just a sequence of bits, software is too.<p>Genetics has turned into a minefield because of patents.<p>Cross-licensing crap worse than even software.<p>It will probably take another decade if this ever changes, but I'm hopeful!

The government's actual position is more subtle than the NYT title suggests:<p>"While the government took the plaintiffs’ side on the issue of isolated DNA, it sided with Myriad on patentability of manipulated DNA."

I am, frankly, amazed that gene patents are now ineligible where software/business method patents remain so. This <i>might</i> be consistent with whatever theology the courts have sanctified, but it is the exact opposite of what makes sense for business and innovation.<p>Firms are forced to pay for their research toward FDA approval, and that approval is extended only to a very specific drug or treatment. The narrowness of this channel yields one of the only business situations where patent law, from an innovation perspective, makes sense.<p>Contrast this with business method patents and software patents: you can use a zillion different idea, each independently patentable, for any business or product, there is a much smaller barrier to entry, and there are many ways to accomplish the same thing. Patents go from being quite valuable for the innovator to being, at best, a distraction, and at worst, a minefield.<p>Oy.

That's the first sane official statement about patents I've heard in a long time. There must be something I'm missing in this debate, because to me the fact that naturally occurring genes are not inventions is as obvious as that mathematical theorems are. (It's actually even <i>more</i> obvious, the genes can be plainly seen around us, when you know they're there.) It's as if software algorithms were written on the leaves of trees around us, but we needed to dye them to see the source.<p>Whether a <i>synthetic</i> gene is an invention is a different story to me. That's much more closely related to whether software is patentable. But no one would seriously argue that they could patent RSA if they turned a rock over and found the algorithm written down, no matter how many stones they had to turn to find it.

To play devil's advocate - one could argue that allowing gene's to be patented would result in a vast amount of resources being invested, immediately, to decode and determine precisely what each of them do - with the rewards from such decoding being secured for 18 years (patent lifetime) - at which point anyone would be free to use the information.<p>In the absence of a patent incentive, the alternative, then, will hopefully be large government and other large public investments making up the difference.

I'm sure Ozzy Osbourne is relieved: <a href="http://www.scientificamerican.com/article.cfm?id=ozzy-osbourne-genome" rel="nofollow">http://www.scientificamerican.com/article.cfm?id=ozzy-osbour...</a>

Ugh, anyone seen Food Inc.? It still doesn't solve the problem of Monsanto and their genetically modified crop, bullying small farmers.