Tuesday, March 30, 2010

Myriad loses!

U.S. District Judge Robert Sweet wrote in his opinion in the Myriad case: "Because the claimed isolated DNA is not markedly different from native DNA as it exists in nature, it constitutes unpatentable subject matter." Judge Sweet confined his ruling to patent law, and did not base his decision on the First Amendment arguments presented by the ACLU and other plaintiffs.

See Reuters story-- Judge in New York dismisses human gene patent. Two human genes associated with breast and ovarian cancers cannot be patented because they are a product of nature, a federal judge ruled on March 29.

However dramatic the result, one suspects it will not hold up on appeal to the Court of Appeals for the Federal Circuit.

The New York Times wrote: The decision, if upheld, could throw into doubt the patents covering thousands of human genes and reshape the law of intellectual property

The key words there are "if upheld."

The NYT also had the text: Bryan Roberts, a prominent Silicon Valley venture capitalist, said the decision could push more work aimed at discovering genes and diagnostic tests to universities. “The government is going to become the funder for content discovery because it’s going to be very hard to justify it outside of academia.”

IPBiz newsflash, a lot of the gene work ALREADY is in the university context, as are PROPOSALS for tests and methods. Refer to the Ariad and Rochester opinions. Actually developing tests is perhaps a different matter. Note that Myriad was formed in 1991 by University of Utah researcher Mark Skolnick and that The University of Utah Research Foundation licensed several of the patents to Myriad. Recall also where Genentech came from.

**In terms of misunderstanding of the story, note what came from the AP and into the Washington Post in a story by LARRY NEUMEISTER:

The ruling came in a long-running fight between scientists who believe that genes carrying the secrets of life should not be exploited for commercial gain and companies that argue that a patent is a reward for years of expensive research that moves science forward. It was almost sure to be appealed to the 2nd U.S. Circuit Court of Appeals in Manhattan.

IPBiz notes that it is certain that the case will NOT be appealed to the 2nd U.S. Circuit Court of Appeals in Manhattan, unless we have a time warp to a pre-Reagan era.

The AP report also contained reference to Jesse Reynolds, who has separately been outspoken on California's CIRM:

"The evidence has mounted that human gene patents are doing more harm than good," and resulted more by accident than a well-thought-out policy, said Jesse Reynolds, a policy analyst at the Center for Genetics and Society. The center is a nonprofit policy research group advocating for oversight and responsible use of biotechnologies.

One presumes Jesse is talking about legal policy on gene patents rather than suggesting the work leading to the patents is not-well-thought-out.

**See previous IPBiz posts





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