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SCOTUSwatch: Gene Patents
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Games Meister
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Apr 15, 2013, 12:03 PM
 
http://www.nytimes.com/2013/04/15/bu...anted=all&_r=0

The case, which will come before the court on Monday, involves patents held by Myriad Genetics on two human genes, which, when mutated, give a woman a high risk of getting breast or ovarian cancer. The patents give Myriad a monopoly on testing for these mutations, a highly lucrative business.
Opponents of gene patents say no company should have rights to what is essentially part of the human body. They contend that Myriad’s monopoly has impeded medical progress and access to testing — in some cases denying patients their own genetic information.

Myriad and its allies in the biotechnology industry counter that a ruling that invalidates gene patents would upend three decades of patenting practice and undermine billions of dollars of investments to develop not only genetic tests but also biotech drugs, DNA-based vaccines and genetically modified crops.
An advisory committee to the Health and Human Services Department said in a 2010 report that gene patents were not necessary to spur development of genetic tests. There are about 50 tests offered for mutations that cause cystic fibrosis, for instance, despite the lack of the exclusivity that patents provide.
Yeah, so I think this pretty is crazy. How can you patent a naturally occurring phenomenon? It's like patenting a new element that's discovered, or a flower or an animal. There's a lot of legitimate conversation ot be had about patents in this country, but this strikes me as the most absurd I've read.
     
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Apr 15, 2013, 01:34 PM
 
Originally Posted by The Final Dakar View Post
Originally Posted by nytimes
For one thing, the Myriad patents at issue are due to expire over the next two years.
The thing about biotech patents is that even though the technology moves fast, it's still not much faster than the rate at which patents expire. Two years from now, society will be able to fully exploit this discovery, and if it's a valuable discovery then why shouldn't the person/group that discovered it be rewarded? How much slower would the importance of these genes have been revealed in the first place, without the incentive of patents (and compare that time to the patent lifetime of 17(?) years).

Edit: maybe the solution is to shorten the length of time that patents are good for, to 10 years or even less. It's still enough time to make money off it.
     
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Apr 15, 2013, 01:45 PM
 
Originally Posted by Uncle Skeleton View Post
Two years from now, society will be able to fully exploit this discovery
This argument strikes me as misleading. The patent was awarded in 1994. So Myriad has had a monopoly on testing for these breast cancer genes for 18 years.


Originally Posted by Uncle Skeleton View Post
and if it's a valuable discovery then why shouldn't the person/group that discovered it be rewarded?
Should someone be rewarded with exclusivity for finding an element, flower or animal first?

Edit: God damn it skeleton are you doing Devil's Advocate here?
     
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Apr 15, 2013, 02:06 PM
 
You aren't allowed to patent naturally occurring phenomena. The patent office has been buying the reasoning that one changes the chemicals when they're removed from the body. Perhaps by adding dyes for reading the code. But it's the code that's being patented.

Since the gene code is patented, and the code is (of course) unchanged by any scanning prep, this reasoning is suspicious. The Federal Circuit hears all patent appeals, and the FC really likes their patents on everything. I'm hoping the Supreme Court slaps them down. Again. No one should have patents on things people are born with. That's awfully close to having an ownership interest in another person, which is illegal in most countries.

If the patent takes effect when your gene code leaves the body, a license might one day be required to have a baby. Or a haircut.
     
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Apr 15, 2013, 02:09 PM
 
Well that's kinda one of my questions. If someone is born with the gene in question are they in violation? The question sounds stupid, but I can't think of an apropos metaphor regarding other legal patents that one may possess.

Edit: Eugenics is going to be twice as fun when people can patent cures for bad genetic combinations are advantageous genetic codings.
     
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Apr 15, 2013, 02:59 PM
 
Justices debate gene patenting issues: In Plain English : SCOTUSblog

He began his argument by asking the Justices to focus on one question: what had Myriad actually invented? He was willing to agree that Myriad had “unlocked the secrets” of the BRCA genes, but he emphasized that the “genes themselves are decisions made by nature, not Myriad.” Thus, although Myriad should get the “credit” for isolating the BRCA genes, he concluded, it did not deserve a patent for that.
Thus, the Chief Justice repeatedly (and skeptically) pressed attorney Gregory Castanias, representing Myriad Genetics, to explain how the process of isolating the BRCA genes was any different from merely “snipping” them out of a chromosome, while Justice Sotomayor emphasized that Myriad could only obtain a patent if it had added to nature – which, her remarks suggested, she did not believe it had. Other Justices echoed this line of thinking. Justice Kagan, for example, asked Castanias whether the first person to isolate a human chromosome would be entitled to a patent and then extended that hypothetical to ask whether the first person who discovered the liver could get a patent on that. And Justice Kennedy observed that Myriad’s reasoning could apply equally to a patent for atomic energy.
Although the Justices seemed to be moving in the direction of a holding that isolated DNA cannot be patented, it was also apparent that they had qualms about the broader implications of their decision and how they might limit it. Justice Kagan was one of the first to raise these concerns, asking Hansen to explain what incentives a company like Myriad would have to make the very substantial investment (in this case, approximately $500 million before breaking even) to isolate the gene in the first place. The Justices seemed unsatisfied with Hansen’s first answers, in which he tried to reassure the Court by noting that other laboratories would not have even tried to get a patent for the genes and that scientists would be willing to do the research because of the recognition that they would receive for important discoveries.
     
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Apr 15, 2013, 03:47 PM
 
Originally Posted by The Final Dakar View Post
This argument strikes me as misleading. The patent was awarded in 1994. So Myriad has had a monopoly on testing for these breast cancer genes for 18 years.
How many years would be a good number?


Should someone be rewarded with exclusivity for finding an element, flower or animal first?
If what they discovered was that the element, flower or animal causes a common form of cancer, then maybe. If no one else would have discovered it before the patent period expires, then definitely. Would we be better off with no private sector scientific research at all? That's an honest question; you might think the public/private balance is misaligned, but if you think there should be no balance at all (all public), then that's kind of a different question isn't it?


Edit: God damn it skeleton are you doing Devil's Advocate here?
No. I think it's a bad idea to kick private-sector science and innovation in the nuts, and put all our eggs in the public sector basket. After the patent period expires, we all get the knowledge free and clear. In the mean time, we get to buy it, which itself is still better than the option we would have if no one was working on it in the first place. Knowledge has value, and buying it (temporarily!) is not as unthinkable as you make it sound.
( Last edited by Uncle Skeleton; Apr 15, 2013 at 04:01 PM. )
     
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Apr 16, 2013, 09:09 AM
 
Patented:

     
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Apr 16, 2013, 10:15 AM
 
Originally Posted by Uncle Skeleton View Post
How many years would be a good number?
Zero. As pointed out already, you can't patent natural occurring phenomena.


Originally Posted by Uncle Skeleton View Post
If no one else would have discovered it before the patent period expires, then definitely.
Isn't that an unanswerable question?


Originally Posted by Uncle Skeleton View Post
Would we be better off with no private sector scientific research at all? That's an honest question; you might think the public/private balance is misaligned, but if you think there should be no balance at all (all public), then that's kind of a different question isn't it?

No. I think it's a bad idea to kick private-sector science and innovation in the nuts, and put all our eggs in the public sector basket. After the patent period expires, we all get the knowledge free and clear. In the mean time, we get to buy it, which itself is still better than the option we would have if no one was working on it in the first place. Knowledge has value, and buying it (temporarily!) is not as unthinkable as you make it sound.
Does this case present this kind of binary proposition?
     
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Apr 16, 2013, 01:54 PM
 
Originally Posted by The Final Dakar View Post
Zero. As pointed out already, you can't patent natural occurring phenomena.
I know that "patenting the gene" is how it's described by both sides, but I think that's a misleading description leading to a misunderstanding of what the patent protects. It makes it sound like you are violating the patent just for being a person who carries that gene. What the patent covers is the usage of that gene as a test for cancer risk. We wouldn't be able to use the gene to test for cancer risk if not for the research done to discover that it works for that, and un-coincidentally that usage of the gene is the only part of the gene that is patented.


Isn't that an unanswerable question?
It's no different than traditional patents in that respect. Would someone else have come along and invented the light bulb, if Edison weren't incentivized by the patent system to invest his efforts doing it? Of course we'll never know, however the logic doesn't change just because the "light bulb" in this story is a (use for a) gene or other naturally occurring phenomenon, instead of an artificial product.


Does this case present this kind of binary proposition?
Yes, since your answer to the question above is "zero" (how long should the patent hold). How are private-sector researchers ever going to be able to afford to do research, if copycats will be able to undersell them the instant they announce their discovery? That was the point of patents, after all, to remedy the copycat problem.
     
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Apr 16, 2013, 02:29 PM
 
Originally Posted by Uncle Skeleton View Post
I know that "patenting the gene" is how it's described by both sides, but I think that's a misleading description leading to a misunderstanding of what the patent protects. It makes it sound like you are violating the patent just for being a person who carries that gene. What the patent covers is the usage of that gene as a test for cancer risk. We wouldn't be able to use the gene to test for cancer risk if not for the research done to discover that it works for that, and un-coincidentally that usage of the gene is the only part of the gene that is patented.
That gene is part of the human body, right? It's naturally occurring? If I discover that you can diagnose the likelihood of a disease from webbed toes, why can I patent webbed toes? Is the fact that this discovery took place at the molecular level an important distinction?

Originally Posted by Uncle Skeleton View Post
Yes, since your answer to the question above is "zero" (how long should the patent hold).
A patent regarding naturally occurring phenomena. This is not all patents. Not even close.

Originally Posted by Uncle Skeleton View Post
How are private-sector researchers ever going to be able to afford to do research, if copycats will be able to undersell them the instant they announce their discovery? That was the point of patents, after all, to remedy the copycat problem.
Correct me if I'm wrong, but isn't the money in diagnostics, prevention and cures? I understand they made the diagnostics possible, but they didn't patent a method (how to look), they patented the location (where to look).
     
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Apr 16, 2013, 03:21 PM
 
Originally Posted by The Final Dakar View Post
That gene is part of the human body, right? It's naturally occurring? If I discover that you can diagnose the likelihood of a disease from webbed toes, why can I patent webbed toes? Is the fact that this discovery took place at the molecular level an important distinction?
Even if it doesn't occur in nature, a patent has to be useful, non-obvious, and novel. Is your analogy those things? Especially for the "useful" requirement, anyone without webbed toes would probably find the method un-useful, which is most people.

Furthermore, patents don't protect against DIY, they only protect against other merchants. If the patent is on the proverbial "better mousetrap," then it doesn't protect an inventor from anyone who builds the new mousetrap for themselves, only against someone else selling the mousetrap. So to make your analogy an apt one, the method you describe must be complicated enough that a consumer must pay someone to do it for them. Because the question has to be about the competition of copycats, not the competition of no-sale. (and when people gain the ability to read their own genome, this whole patented gene issue will be moot)

So tell me if you object to these adjustments to your analogy... the method can be done on anyone not just those with webbed toes (maybe the test is to analyze the ratio of toe lengths to each other), it is novel and non-obvious, and it's not feasible for a lay person to do it to themselves for some reason. They must hire a professional to crunch the numbers. I don't see why such a method shouldn't be patentable. It serves the core function of patents: it prevents copycats from stifling the research that would make that discovery possible in the first place.


A patent regarding naturally occurring phenomena. This is not all patents. Not even close.
Yes, and that is the question you asked: if we disallow patents on genes, does that mean we kill private-sector research on how to utilize those genes? Yes, yes it does.


Correct me if I'm wrong, but isn't the money in diagnostics, prevention and cures? I understand they made the diagnostics possible, but they didn't patent a method (how to look), they patented the location (where to look).
Where to look (for the gene) is how to look (for cancer risk).
     
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Apr 16, 2013, 04:23 PM
 
Originally Posted by Uncle Skeleton View Post
Even if it doesn't occur in nature, a patent has to be useful, non-obvious, and novel. Is your analogy those things? Especially for the "useful" requirement, anyone without webbed toes would probably find the method un-useful, which is most people.

Furthermore, patents don't protect against DIY, they only protect against other merchants. If the patent is on the proverbial "better mousetrap," then it doesn't protect an inventor from anyone who builds the new mousetrap for themselves, only against someone else selling the mousetrap. So to make your analogy an apt one, the method you describe must be complicated enough that a consumer must pay someone to do it for them. Because the question has to be about the competition of copycats, not the competition of no-sale. (and when people gain the ability to read their own genome, this whole patented gene issue will be moot)

So tell me if you object to these adjustments to your analogy... the method can be done on anyone not just those with webbed toes (maybe the test is to analyze the ratio of toe lengths to each other), it is novel and non-obvious, and it's not feasible for a lay person to do it to themselves for some reason. They must hire a professional to crunch the numbers. I don't see why such a method shouldn't be patentable. It serves the core function of patents: it prevents copycats from stifling the research that would make that discovery possible in the first place.
Good lord that's a lot of text and not a single answer. I don't think all my questions were irrelevant.


Originally Posted by Uncle Skeleton View Post
Yes, and that is the question you asked: if we disallow patents on genes, does that mean we kill private-sector research on how to utilize those genes? Yes, yes it does.
Is that your opinion or is there some evidence that's been presented to that effect (I haven't seen anything to that effect in the articles I've read on this case so far)? I won't pretend to know all the possible uses for genetic research.


Originally Posted by Uncle Skeleton View Post
Where to look (for the gene) is how to look (for cancer risk).
Do you have something to add, other than just reversing my statement?
     
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Apr 16, 2013, 04:37 PM
 
Originally Posted by The Final Dakar View Post
Good lord that's a lot of text and not a single answer. I don't think all my questions were irrelevant.
I don't know why you're being so bitchy. I'll try to not let it affect me.
Instead of just listing the various ways your analogy was inapplicable, I was trying to suggest a way to fix each of those ways in order to make it work. Was that a mistake?


Is that your opinion or is there some evidence that's been presented to that effect (I haven't seen anything to that effect in the articles I've read on this case so far)? I won't pretend to know all the possible uses for genetic research.
It's the whole reason the concept of patents exists in the first place. I don't know what basis you're questioning it on.

Edit: also evidence (reasoning) was already posted in this thread:
"Justice Kagan was one of the first to raise these concerns, asking Hansen to explain what incentives a company like Myriad would have to make the very substantial investment (in this case, approximately $500 million before breaking even) to isolate the gene in the first place. The Justices seemed unsatisfied with Hansen’s first answers, in which he tried to reassure the Court by noting that other laboratories would not have even tried to get a patent for the genes and that scientists would be willing to do the research because of the recognition that they would receive for important discoveries."

Do you have something to add, other than just reversing my statement?
If I write at length, you complain that it's too long, and if I keep it concise you complain that it's too short. I just can't win can I?
     
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Apr 16, 2013, 05:01 PM
 
Originally Posted by Uncle Skeleton View Post
I don't know why you're being so bitchy. I'll try to not let it affect me.
Instead of just listing the various ways your analogy was inapplicable, I was trying to suggest a way to fix each of those ways in order to make it work. Was that a mistake?
There were four questions in that section you responded to and only one was the analogy you fixated on. I don't need answers to them all, but I think the most concise and applicable one was: "Is the fact that this discovery took place at the molecular level an important distinction?"

Here, this might speak better for me:
Argument recap: Analogies to the rescue : SCOTUSblog
Throughout a sometimes achingly complex argument over bio-science, the down-to-earth images of shaping a bat out of a tree limb, or swallowing the sap of an Amazon plant to test its medicinal value appeared to put the Court closer to resolving a truly fundamental issue of patent law, on the right to get a monopoly for tinkering with Mother Nature’s products.
There were two that captivated the Court: the baseball bat that is something that comes from nature — a tree — but becomes something very different, and the leaf or sap of an Amazonian plant that has curative potential for human disease.

The Justices worked, and at times over-worked, those examples, but it was clear that they were regarded as highly serviceable ways to think about Myriad’s patents. And that might well be ominous for Myriad, since each of the examples made highly vivid the existence of two products: the natural one, and then something else that someone had the genius to create out of it. The tree can’t be patented, and neither can the plant while it grows in the forest in the Amazon, the Justices kept pointing out.

Myriad, of course, has argued that it did invent something with the extracted genes, but its lawyer struggled on Monday to try to differentiate that from the tree and the bat, and the Amazon plant and its sap.


Originally Posted by Uncle Skeleton View Post
It's the whole reason the concept of patents exists in the first place. I don't know what basis you're questioning it on

Edit: also evidence (reasoning) was already posted in this thread:
"Justice Kagan was one of the first to raise these concerns, asking Hansen to explain what incentives a company like Myriad would have to make the very substantial investment (in this case, approximately $500 million before breaking even) to isolate the gene in the first place. The Justices seemed unsatisfied with Hansen’s first answers, in which he tried to reassure the Court by noting that other laboratories would not have even tried to get a patent for the genes and that scientists would be willing to do the research because of the recognition that they would receive for important discoveries."
Legally it probably isn't important, but why were they researching the genes in the first place? If trying to solve A you need to pass through B to get to C, I'm not sure each step is patentable.



Originally Posted by Uncle Skeleton View Post
If I write at length, you complain that it's too long, and if I keep it concise you complain that it's too short. I just can't win can I?
I sympathize, but I do believe there's a middle ground. I don't consider rearranging my statements without context being concise. I'm also being realistic – the way you write tends to lose me easily, and the longer you go the more likely it'll happen.

If it any consolation (or context) I have always been godawful at word problems.
     
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Apr 16, 2013, 06:31 PM
 
Originally Posted by The Final Dakar View Post
There were four questions in that section you responded to and only one was the analogy you fixated on. I don't need answers to them all, but I think the most concise and applicable one was: "Is the fact that this discovery took place at the molecular level an important distinction?"
In practice, it puts the invention out of reach for DIY users (for now). For that reason it is important. But otherwise no, IMO.


Here, this might speak better for me:
Argument recap: Analogies to the rescue : SCOTUSblog
Throughout a sometimes achingly complex argument over bio-science, the down-to-earth images of shaping a bat out of a tree limb, or swallowing the sap of an Amazon plant to test its medicinal value appeared to put the Court closer to resolving a truly fundamental issue of patent law, on the right to get a monopoly for tinkering with Mother Nature’s products.
It goes on to say that you can't patent the tree that the bat was carved from, but doesn't say you can't patent the bat, or that you can't patent the discovery of how to use that particular type of tree to make a better kind of bat. That's where the analogy breaks down, because a bat is not novel or non-obvious. If it were both of those, I believe you could patent it. That you can't patent the tree, I believe speaks directly to my complaint which I mentioned, about calling it "patenting the gene." I don't think they should call it patenting the gene, they should call it patenting the method of cancer screening using that gene.

I think this is about a method, not a product, but since the debate in the court has been focused on the product (such as amplified cDNA) and not at all about the method, I predict a ruling against the patent. Because the extraction argument is a loser IMO.


Legally it probably isn't important, but why were they researching the genes in the first place? If trying to solve A you need to pass through B to get to C, I'm not sure each step is patentable.
I believe they found it during a systematic search of a region of the genome identified through "linkage analysis" (narrowing the location using a family with familial breast cancer). I don't know how to apply that to your A-B-C situation. Maybe this means the "invention" was not non-obvious; I would be very tempted to agree with that, on the other hand if it was that easy a case then I don't know why the lower courts didn't say that, or why the supreme court isn't talking about it.


I sympathize, but I do believe there's a middle ground. I don't consider rearranging my statements without context being concise.
I put my context in parentheses. What fault did you find with that context? It's pretty much impossible for me to fix the problem if you don't tell me what the problem was.
     
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Apr 17, 2013, 02:09 PM
 
Originally Posted by Uncle Skeleton View Post
In practice, it puts the invention out of reach for DIY users (for now). For that reason it is important. But otherwise no, IMO.
Uh, so are you saying it shouldn't matter for this case? I mean, like you point out, it is out of reach for regular people.


Originally Posted by Uncle Skeleton View Post
It goes on to say that you can't patent the tree that the bat was carved from, but doesn't say you can't patent the bat, or that you can't patent the discovery of how to use that particular type of tree to make a better kind of bat. That's where the analogy breaks down, because a bat is not novel or non-obvious. If it were both of those, I believe you could patent it. That you can't patent the tree, I believe speaks directly to my complaint which I mentioned, about calling it "patenting the gene." I don't think they should call it patenting the gene, they should call it patenting the method of cancer screening using that gene.
Another terrible metaphor coming up, but it strikes me as saying "You're not allowed to look here." And here is a part of the body.


Originally Posted by Uncle Skeleton View Post
I think this is about a method, not a product, but since the debate in the court has been focused on the product (such as amplified cDNA) and not at all about the method, I predict a ruling against the patent. Because the extraction argument is a loser IMO.
Okay, so you think the argument is a loser. But in a better argued parallel universe, you'd uphold it?


Originally Posted by Uncle Skeleton View Post
I believe they found it during a systematic search of a region of the genome identified through "linkage analysis" (narrowing the location using a family with familial breast cancer). I don't know how to apply that to your A-B-C situation. Maybe this means the "invention" was not non-obvious; I would be very tempted to agree with that, on the other hand if it was that easy a case then I don't know why the lower courts didn't say that, or why the supreme court isn't talking about it.
A cynical man might comment "because of $$$". The state of our patent system is a volatile topic.


Originally Posted by Uncle Skeleton View Post
I put my context in parentheses. What fault did you find with that context? It's pretty much impossible for me to fix the problem if you don't tell me what the problem was.
I guess what I'm missing is that you were conflating my distinctions on the method of diagnosis? (i.e., you see no real difference between how to look and where to look?).
     
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Apr 17, 2013, 03:31 PM
 
Originally Posted by The Final Dakar View Post
Uh, so are you saying it shouldn't matter for this case? I mean, like you point out, it is out of reach for regular people.
Yes I'm saying that.


Another terrible metaphor coming up, but it strikes me as saying "You're not allowed to look here." And here is a part of the body.
I believe what you're not allowed to do is sell the service of looking "there." People who look "there" for their own edification are not violating the patent.


Okay, so you think the argument is a loser. But in a better argued parallel universe, you'd uphold it?
I'm undecided. I see merits on both sides.


A cynical man might comment "because of $$$". The state of our patent system is a volatile topic.
That doesn't explain why the argument isn't being raised now. (does it?)


I guess what I'm missing is that you were conflating my distinctions on the method of diagnosis? (i.e., you see no real difference between how to look and where to look?).
You can't have any "how to look" invention without at some point including a "where to look" component. Unless when you look there it spells out "c-a-n-c-e-r" in DNA, someone is going to have to figure out how to translate the sequences that you do see when you look there into cancer risks. That "how" to translate is the part you are conveniently ignoring when you accuse them of patenting a "where to look" invention.
     
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Apr 17, 2013, 03:45 PM
 
It's like patenting that there's a math error in a particular answer in the back of a text book. There are many was to check the answer, all of them are procedural and therefore obvious.
     
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Apr 17, 2013, 03:55 PM
 
[QUOTE=The Final Dakar;4226431
Legally it probably isn't important, but why were they researching the genes in the first place? If trying to solve A you need to pass through B to get to C, I'm not sure each step is patentable.[/QUOTE]

Go look at the co-discoverers of the genes. It's all universities and research hospitals. That discovery was made with grant money. It wouldn't surprise me if public funds were involved too.
     
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Apr 17, 2013, 04:01 PM
 
Originally Posted by BLAZE_MkIV View Post
It's like patenting that there's a math error in a particular answer in the back of a text book. There are many was to check the answer, all of them are procedural and therefore obvious.
There's a lot of problems with that analogy. Biology isn't like math, you can't test it using models and theories you have to test it by trial and error. Science in general isn't like a textbook, in that a textbook was created to be human-readable and science studies things that aren't human-readable. This case isn't like a particular error in a particular textbook, it's more like a specific method for finding a particularly pernicious error given any particular textbook.
     
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Apr 17, 2013, 04:13 PM
 
Originally Posted by Uncle Skeleton View Post
There's a lot of problems with that analogy. Biology isn't like math, you can't test it using models and theories you have to test it by trial and error. Science in general isn't like a textbook, in that a textbook was created to be human-readable and science studies things that aren't human-readable. This case isn't like a particular error in a particular textbook, it's more like a specific method for finding a particularly pernicious error given any particular textbook.
My analogy wasn't about math it was about opening up a book, looking for the right page and comparing the answer written there to see if it's right or wrong. The fact that the methods involved are more complex doesn't make it novel. It's not even a specific method. The method for isolating a gene isn't unique to the gene.
     
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Apr 17, 2013, 04:41 PM
 
Originally Posted by Uncle Skeleton View Post
Yes I'm saying that.
Ok.

Originally Posted by Uncle Skeleton View Post
I believe what you're not allowed to do is sell the service of looking "there." People who look "there" for their own edification are not violating the patent.
I appreciate you trying to be precise by the use of 'edification', but you're going to have to dumb that down for me.

Originally Posted by Uncle Skeleton View Post
I'm undecided. I see merits on both sides.
Ok.

Originally Posted by Uncle Skeleton View Post
That doesn't explain why the argument isn't being raised now. (does it?)
Quite honestly, I was surprised this patent existed since 1994. I wonder what changed that this case has come about now. (Technology?)

Originally Posted by Uncle Skeleton View Post
You can't have any "how to look" invention without at some point including a "where to look" component. Unless when you look there it spells out "c-a-n-c-e-r" in DNA, someone is going to have to figure out how to translate the sequences that you do see when you look there into cancer risks. That "how" to translate is the part you are conveniently ignoring when you accuse them of patenting a "where to look" invention.
I'm not conveniently ignoring – the translate part you bring up has been absent of the analogies I've recall.

Alright, another analogy – you tell me if it works: Blood tests. I imagine you need someone to "translate" the results of blood work to reveal things. Is that applicable/patentable?
     
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Apr 17, 2013, 04:51 PM
 
Originally Posted by BLAZE_MkIV View Post
My analogy wasn't about math it was about opening up a book, looking for the right page and comparing the answer written there to see if it's right or wrong.
Finding out which answers are "right" and "wrong" is the part they patented. If no one had ever done that work, then we still wouldn't know the "right" and "wrong" answers. You can't patent a formula, but you can patent an application of that formula, and testing a person for whether their "textbook" contains the "right" or "wrong" answer is an application. Barely. It's borderline, which is probably why this case made it all the way to the supreme court.


The fact that the methods involved are more complex doesn't make it novel. It's not even a specific method. The method for isolating a gene isn't unique to the gene.
It's not about isolating a gene, although unfortunately that's what the lawyers and justices have been focused on. It's about finding out the importance of which allele is which. If the end of the discovery was "we can tell you the sequence of your own gene," that wouldn't be useful would it? One of the 3 basic requirements for a patent is that it be useful. The useful part is knowing how your own gene sequence affects your risk for cancer.
     
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Apr 17, 2013, 05:18 PM
 
Originally Posted by Uncle Skeleton View Post
Finding out which answers are "right" and "wrong" is the part they patented. If no one had ever done that work, then we still wouldn't know the "right" and "wrong" answers. You can't patent a formula, but you can patent an application of that formula, and testing a person for whether their "textbook" contains the "right" or "wrong" answer is an application. Barely. It's borderline, which is probably why this case made it all the way to the supreme court.



It's not about isolating a gene, although unfortunately that's what the lawyers and justices have been focused on. It's about finding out the importance of which allele is which. If the end of the discovery was "we can tell you the sequence of your own gene," that wouldn't be useful would it? One of the 3 basic requirements for a patent is that it be useful. The useful part is knowing how your own gene sequence affects your risk for cancer.
You can patent an application of that formula. Not all applications of a formula. And only applications of a formula that are novel. There's nothing novel about looking at a gene and seeing if it matches a known sample. The fact that you're checking a specific gene because of a specific disease isn't novel. At least not in the way patents use it.

If they have some neat way to test for it that saves time and money i'd see that. But if all I need to know to reproduce their test is the active sight and the sequence then it's not patent-able.

They aren't talking about it because they all know discoveries can't be patented. If they wanted to make money of the discovery they should have protected it as a trade secret instead of publishing it in the trade journals. Oh but their grant money requires them to publish. I wonder why?
     
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Apr 17, 2013, 05:42 PM
 
Originally Posted by The Final Dakar View Post
I appreciate you trying to be precise by the use of 'edification', but you're going to have to dumb that down for me.
The patent is on a method. How are they going to know or be harmed if you go in your basement and do that method yourself on your own skin cells? They aren't. They're harmed when you start doing it for other people, taking those other people away as their customers.

Basically it's like the difference between ripping an mp3 to your ipod vs ripping the same mp3 and sharing it with other people. The first may be technically against the law or it might be fair use, and I submit that the distinction is irrelevant because no one will be able to tell the difference anyway.


Quite honestly, I was surprised this patent existed since 1994. I wonder what changed that this case has come about now. (Technology?)
How long does it usually take for a case to get to the supreme court?


I'm not conveniently ignoring – the translate part you bring up has been absent of the analogies I've recall.

Alright, another analogy – you tell me if it works: Blood tests. I imagine you need someone to "translate" the results of blood work to reveal things. Is that applicable/patentable?
Yes, I believe patents on blood tests are common. Assuming the test is novel, non-obvious and useful of course. One problem is that what was non-obvious in 1994 is probably obvious today. Again, I think the answer to a lot of patent paradoxes would be shortening the length patents live for, unfortunately we went the other way by lengthening them from 17 years to 20 years.
     
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Apr 18, 2013, 11:37 AM
 
Originally Posted by Uncle Skeleton View Post
The patent is on a method. How are they going to know or be harmed if you go in your basement and do that method yourself on your own skin cells? They aren't. They're harmed when you start doing it for other people, taking those other people away as their customers.

Basically it's like the difference between ripping an mp3 to your ipod vs ripping the same mp3 and sharing it with other people. The first may be technically against the law or it might be fair use, and I submit that the distinction is irrelevant because no one will be able to tell the difference anyway.
I think I misread the second sentence as an implication that anybody could look there for their own edification also implied companies/hospitals whatever. Still, disturbing comparison.


Originally Posted by Uncle Skeleton View Post
How long does it usually take for a case to get to the supreme court?
I imagine its not quick. I can't find when this all started, but the earliest reference on wiki is 2010, which to me implies its recent to at least some degree.


Originally Posted by Uncle Skeleton View Post
Yes, I believe patents on blood tests are common. Assuming the test is novel, non-obvious and useful of course.
While this doesn't mean the analogy isn't apt, I do have to wonder if the defense didn't pick up on it, does that indicate that having a more fundamental understanding of the science behind what Myriad is doing would disqualify the comparison.

Unfortunately I don't know enough about how blood tests work to know if its the method they isolate the results by is the patent or just what they're looking for.


Originally Posted by Uncle Skeleton View Post
One problem is that what was non-obvious in 1994 is probably obvious today.
Yeah, that goes to my "Did technology change" statement.


Originally Posted by Uncle Skeleton View Post
Again, I think the answer to a lot of patent paradoxes would be shortening the length patents live for, unfortunately we went the other way by lengthening them from 17 years to 20 years.
Certainly political action has always gone in this direction, but in this specific instance, I don't feel three years is something to be upset over either way.
     
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Apr 18, 2013, 01:16 PM
 
Originally Posted by The Final Dakar View Post
I think I misread the second sentence as an implication that anybody could look there for their own edification also implied companies/hospitals whatever. Still, disturbing comparison.
Maybe I have the wrong idea about the phrase "own edification." What do you use to describe the opposite or inverse of what you do as part of your job/career?


While this doesn't mean the analogy isn't apt, I do have to wonder if the defense didn't pick up on it, does that indicate that having a more fundamental understanding of the science behind what Myriad is doing would disqualify the comparison.
I suspect the defense has an ulterior motive to win protection to do more than I'm defending, more than they're doing already.


Yeah, that goes to my "Did technology change" statement.
Are patents supposed to be vulnerable to technology changing like that afterwards? It doesn't make sense to say that a person's patent is more vulnerable just because it's so good that the entire industry went the same way within 20 years.


Certainly political action has always gone in this direction
I don't know what you mean


, but in this specific instance, I don't feel three years is something to be upset over either way.
I meant it should have been changed to less than 17 years. The status quo wasn't good either, but instead of making it better they made it worse. It also means my solution is even less likely because they would have to reverse course.
     
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Apr 18, 2013, 01:20 PM
 
"Are patents supposed to be vulnerable to technology changing like that afterwards? It doesn't make sense to say that a person's patent is more vulnerable just because it's so good that the entire industry went the same way within 20 years."

Patents are supposed to be about technology and driving changes in technology.
     
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Apr 18, 2013, 01:38 PM
 
Originally Posted by BLAZE_MkIV View Post
"Are patents supposed to be vulnerable to technology changing like that afterwards? It doesn't make sense to say that a person's patent is more vulnerable just because it's so good that the entire industry went the same way within 20 years."

Patents are supposed to be about technology and driving changes in technology.
Then why should we punish the ones that are best at doing that? A patent on an invention that stagnates is ok, but a patent on an invention that changes the whole industry gets squashed because of it?
     
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Apr 18, 2013, 02:19 PM
 
If a change in technology renders your patent useless that's the price you pay for playing the game. Usually patents aren't a complete lockout anyway because there is usually more than one way to do something. Some of them may be less cost effective but that's the point. There's a reason "build a better moustrap" is a cliche. Many people have tried but the popular design has been ground down to were it can't really be improved.
     
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Apr 18, 2013, 03:11 PM
 
Originally Posted by BLAZE_MkIV View Post
If a change in technology renders your patent useless that's the price you pay for playing the game.
Obviously this patent hasn't been rendered useless by technology, that's why people are trying to render it useless using the courts instead.

Usually patents aren't a complete lockout anyway because there is usually more than one way to do something.
And there's more than one way to test for breast cancer risk too, like the other genes that are used.
     
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Apr 18, 2013, 03:20 PM
 
The fact that there's no way around this patent in 17 years of advancement in equipment and techniques means its highly likely that the patent is on something that shouldn't be patented. There's never one way to solve a problem.
     
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Apr 18, 2013, 04:34 PM
 
Originally Posted by BLAZE_MkIV View Post
The fact that there's no way around this patent in 17 years of advancement in equipment and techniques means its highly likely that the patent is on something that shouldn't be patented. There's never one way to solve a problem.
You're suggesting that no patent should ever remain useful for the full term of the patent, with exceptions only rarely. That is contrary to the definition of patents: exclusivity in exchange for disclosure of the mechanism of the invention. If society expects all inventions to be obsolete before the exclusivity period ends, then society would not have agreed to the principle of patents in the first place.
     
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Apr 18, 2013, 05:41 PM
 
I'm saying that no invention in the last 100 years is so distinct, so comprehensive, that there's no other way to do it.
     
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Apr 18, 2013, 06:21 PM
 
Originally Posted by BLAZE_MkIV View Post
I'm saying that no invention in the last 100 years is so distinct, so comprehensive, that there's no other way to do it.
You're being vague to the point of meaningless. How do you know what "it" is in the phrase "no other way to do it?" The patent is for a way to measure personalized breast cancer risk, and the mechanism is by using a gene they discovered the function of. "It" would be testing personalized breast cancer risk, and there certainly are other ways to do it besides using those specific genes. With this or with any patent, you can choose to make "it" as specific or vague as necessary in order to tautologically meet your expectations of whether the patent is "good" or "bad."
( Last edited by Uncle Skeleton; Apr 18, 2013 at 06:45 PM. )
     
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Apr 22, 2013, 01:51 PM
 
Originally Posted by Uncle Skeleton View Post
Maybe I have the wrong idea about the phrase "own edification." What do you use to describe the opposite or inverse of what you do as part of your job/career?
Downtime?

Originally Posted by Uncle Skeleton View Post
I don't know what you mean
I was mistakenly thinking of copyright, though I think the general premise between the two is similar.
     
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Apr 22, 2013, 02:09 PM
 
Originally Posted by Uncle Skeleton View Post
You're being vague to the point of meaningless. How do you know what "it" is in the phrase "no other way to do it?" The patent is for a way to measure personalized breast cancer risk, and the mechanism is by using a gene they discovered the function of. "It" would be testing personalized breast cancer risk, and there certainly are other ways to do it besides using those specific genes. With this or with any patent, you can choose to make "it" as specific or vague as necessary in order to tautologically meet your expectations of whether the patent is "good" or "bad."
You misunderstand me constantly. "a way to measure personalized breast cancer risk" isn't patent-able. It's a process. The gene isn't patent-able, they discovered it not invented it. The idea of testing for a gene that correlates with cancer rates isn't non-obvious. The methods to isolate a gene aren't patent-able. The machine that isolates the gene is covered by another patent.

Their argument was that sometime during the process of isolating the gene out of a persons DNA it becomes something new. They made this silly argument because they knew the above. The only reason they didn't get smacked down is the courts was concerned about the financial impacts of their ruling. Which they shouldn't be.
     
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Apr 22, 2013, 02:14 PM
 
Originally Posted by BLAZE_MkIV View Post
Their argument was that sometime during the process of isolating the gene out of a persons DNA it becomes something new. They made this silly argument because they knew the above. The only reason they didn't get smacked down is the courts was concerned about the financial impacts of their ruling. Which they shouldn't be.
Bingo. I understand the monetary concern in principle, but it overlooks how the industry works; Medical research is a gamble that may not pay off. This company happened to discover a gene linked to increased risk of breast cancer and want to recoup some dough, but in order to do so you need to overlook that they discovered a naturally occurring phenomena and not a process by which to check for it. I believe that's called a tough break.
     
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Apr 22, 2013, 03:04 PM
 
What really galls me is they the company didn't exist until after the gene was discovered. The discovery was made by a couple of hospitals. Funded i'd bet by all those Walk For Cancer fund raisers. So after publishing their paper they then try and gouge people for dna tests. It's nice to get payed three times but its not honest.
     
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Apr 22, 2013, 06:45 PM
 
Originally Posted by BLAZE_MkIV View Post
You misunderstand me constantly. "a way to measure personalized breast cancer risk" isn't patent-able. It's a process.
Processes are patent-able.


The idea of testing for a gene that correlates with cancer rates isn't non-obvious.
That reasoning is not sound. If it was, you could never patent a breed of plant or animal used in agriculture, because breeding plants and animals for desirable traits isn't non-obvious. You could never patent an antibody you created, because developing an antibody isn't non-obvious. These things are not analogous to gene-related patents like BRCA1, but it's because they aren't naturally occurring, not because they aren't non-obvious. If they weren't non-obvious, they wouldn't be patent-able even though they aren't naturally occurring.
     
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Apr 22, 2013, 06:56 PM
 
Originally Posted by The Final Dakar View Post
they discovered a naturally occurring phenomena and not a process by which to check for it.
I have a conceptual question for you. Which way does a tie go to? In other words, if there are two perfectly accurate ways to describe a patented product, one description which is in compliance with patent rules and one that is out of compliance, which description wins? Should such a hypothetical patent be valid or invalid?
     
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Apr 22, 2013, 07:05 PM
 
Originally Posted by BLAZE_MkIV View Post
The discovery was made by a couple of hospitals. Funded i'd bet by all those Walk For Cancer fund raisers. So after publishing their paper they then try and gouge people for dna tests. It's nice to get payed three times but its not honest.
It's common for research institutions to hold patents on their discoveries. This patent was co-applied for by Myriad, the University of Utah, and US Health (whatever that is; according to the BRCA1 wikipedia page from which I found that link, it is the National Institute of Environmental Health Sciences). It doesn't say how Myriad came to be the only patent holder, maybe they even bought the rights for a fair price.
     
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Apr 23, 2013, 10:00 AM
 
Originally Posted by Uncle Skeleton View Post
Processes are patent-able.

That reasoning is not sound. If it was, you could never patent a breed of plant or animal used in agriculture, because breeding plants and animals for desirable traits isn't non-obvious. You could never patent an antibody you created, because developing an antibody isn't non-obvious. These things are not analogous to gene-related patents like BRCA1, but it's because they aren't naturally occurring, not because they aren't non-obvious. If they weren't non-obvious, they wouldn't be patent-able even though they aren't naturally occurring.
Patent lawyer speak processes are patent-able. Layman speak process aren't. "The case law "forecloses a purely literal reading of § 101."" from your link
The novel clause still applies. The process needs to be new, adding "use this gene" to a section from a machines manual is not new.

Are you saying that testing for a gene known to cause cancer is't an obvious way to predict cancer?

Lets use you're breeding as an example. You 're a pigeon breeder and you manager to cross breed/ mutate you way to a purple pigeon. You then go to a genetics lab and have them isolate the gene that makes the pigeon purple. You can patent the purple pigeon. You can't patent the gene. The pigeon made the gene not you. If you had the genetics lab splice eggplant dna into you're pigeon to make it purple then you could patent the gene.
     
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Apr 23, 2013, 10:07 AM
 
Originally Posted by BLAZE_MkIV View Post
Patent lawyer speak processes are patent-able. Layman speak process aren't. "The case law "forecloses a purely literal reading of § 101."" from your link
The novel clause still applies. The process needs to be new, adding "use this gene" to a section from a machines manual is not new.

Are you saying that testing for a gene known to cause cancer is't an obvious way to predict cancer?
It depends on what you mean by "known to cause cancer." Are you under the impression that BRCA was "the breast cancer gene" before this patent was filed?
     
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Apr 23, 2013, 12:07 PM
 
Gene X correlates with disease Y. Therefore testing for X indicates Y. I'm saying it doesn't matter which gene or which disease. The very concept is obvious.

So you're saying I can file a patent that says "If both parents are blond then the child will be blond." And then sue the hospitals for every blond child born?
     
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Apr 23, 2013, 01:10 PM
 
Originally Posted by BLAZE_MkIV View Post
Gene X correlates with disease Y. Therefore testing for X indicates Y. I'm saying it doesn't matter which gene or which disease. The very concept is obvious.
What if it's unknown whether X correlates with Y, or whether X even exists?

So you're saying I can file a patent that says "If both parents are blond then the child will be blond." And then sue the hospitals for every blond child born?
Relevant ways in which that analogy differs from this case:
1) Blondness is known, but BRCA was unknown
2) Hair color is measurable, but BRCA was not measurable (the sequence was unknown, and not a single species' full genome had been sequenced yet at that point; the only way to find the sequence of a gene in 1994 was to painstakingly search for it (chemically, not electronically)).
3) Organisms expressing BRCA don't violate this patent, it's only the process of testing that violates the patent, and only tests done using the gene discovered by Myriad et al; other genes are ok. If you discover an application of blondness that can be useful for testing cancer, then you can patent that application, but your patent won't cover "every blond child born," it will only cover the application of using blondness to test for cancer. Which is fair because no one would be able to use that method of testing cancer in the first place, if you had never invented it, and we will all benefit from the free information after your patent expires.
     
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Apr 23, 2013, 02:14 PM
 
Originally Posted by Uncle Skeleton View Post
I have a conceptual question for you. Which way does a tie go to? In other words, if there are two perfectly accurate ways to describe a patented product, one description which is in compliance with patent rules and one that is out of compliance, which description wins? Should such a hypothetical patent be valid or invalid?
Tough but fair question. Not sure you'll like my answer, though. Honestly, I'm not an objective participant here, doubly so given that we're talking about the medical field. I think if its possible the patent infringes on nature, you side with nature.


Originally Posted by Uncle Skeleton View Post
It depends on what you mean by "known to cause cancer." Are you under the impression that BRCA was "the breast cancer gene" before this patent was filed?
BRCA was always the breast cancer gene, people just didn't know it.
     
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Apr 23, 2013, 02:23 PM
 
Originally Posted by Uncle Skeleton View Post
What if it's unknown whether X correlates with Y, or whether X even exists?
How does X effect the price of tea in china?

Relevant ways in which that analogy differs from this case:
1) Blondness is known, but BRCA was unknown
2) Hair color is measurable, but BRCA was not measurable (the sequence was unknown, and not a single species' full genome had been sequenced yet at that point; the only way to find the sequence of a gene in 1994 was to painstakingly search for it (chemically, not electronically)).
3) Organisms expressing BRCA don't violate this patent, it's only the process of testing that violates the patent, and only tests done using the gene discovered by Myriad et al; other genes are ok. If you discover an application of blondness that can be useful for testing cancer, then you can patent that application, but your patent won't cover "every blond child born," it will only cover the application of using blondness to test for cancer. Which is fair because no one would be able to use that method of testing cancer in the first place, if you had never invented it, and we will all benefit from the free information after your patent expires.
1) All of this starts after BRCA is known and correlated with cancer. None of these patents or Myriad existed until after they identified the link between BRCA and breast cancer. "Look for genes associated with cancer rates and make money" may be a business plan but isn't a/the patent.

2) Genes are certainly measurable or they couldn't test for them.

3) My statement is that using a gene to test for a condition is obvious. Regardless of the gene or the condition. In order for their test to be patent-able there must be be something about the way they perform their test that is novel.
     
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Apr 23, 2013, 03:24 PM
 
Originally Posted by BLAZE_MkIV View Post
How does X effect the price of tea in china?
Why are you mocking the terminology you introduced to the thread?


1) All of this starts after BRCA is known and correlated with cancer. None of these patents or Myriad existed until after they identified the link between BRCA and breast cancer.
That's false. I guess this explains your erroneous position this whole time.


2) Genes are certainly measurable or they couldn't test for them.
It became testable precisely because of the work behind their patent application. That test is the patent.


3) My statement is that using a gene to test for a condition is obvious. Regardless of the gene or the condition.
Then explain why the same reasoning doesn't invalidate all patents on agricultural plant and animal strains. How can they be patentable if they are obvious?


In order for their test to be patent-able there must be be something about the way they perform their test that is novel.
The sequence of the gene they isolated (for the first time in history) was novel. Discoveries aren't patentable, but applications of discoveries are, and the test is an application of that novel discovery.
     
 
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