Tuesday, March 30, 2010

Genes not patentable?

In the news (New York Times) is a ruling in a case before the US District Court for the Southern District of New York (Judge Robert W. Sweet) that invalidates Myriad Genetics' patent on the BRCA1 and BRCA2 genes (article, opinion).

For everyone I know (scientists), the idea of patenting genes---particularly unmodified genes---is ludicrous. It exemplifies the nature of our age, which we might call capitalism gone wild. On the other hand, the first lawyer I talked to (who happens to be my brother) explained to me "that's the way the world works." (I'm paraphrasing). Money talks, and all that.

Here is an excerpt of the article that gives the main themes:

“It’s really quite a dramatic holding that would have the effect of invalidating many, many patents on which the biotechnology industry has invested considerable money,” said Rebecca S. Eisenberg, a professor of law at the University of Michigan who has written extensively on gene patents.

The Genomics Law Report, an Internet journal, called the decision “radical and astonishing in its sweep.” It headlined its article, “Pigs Fly.”

Although patents are not granted on things found in nature, the DNA being patented had long been considered a chemical that was isolated from, and different from, what was found in nature.

But Judge Sweet ruled that the distinguishing feature of DNA is its information content, its conveyance of the genetic code. And in that regard, he wrote, the isolated DNA “is not markedly different from native DNA as it exists in nature.”


Executive summary:

P1 says that a lot of money is at stake (implies patents are good)
P2 expresses incredulity: "Pigs Fly"
P3 summarizes Myriad's core scientific proposition

To be clear, the argument (which is complete and total bullshit) is that the DNA in cells is different than that which has been purified away from histones and other stuff, or cloned in bacteria, or amplified by PCR. It's been "transformed," presto, and is now something different enough to be patentable. Trust me, it's a stretch. Particularly to a geneticist who has spent his whole career thinking about genes as sequences. In my view, today is the day the Emperor discovered he is naked.

P4 Well, I include paragraph 4 because it illustrates for me how silly it is for the New York Times to claim to be the "paper of record." Some time ago, I emailed them to explain that it is not correct to talk about sequencing a genome as "decoding" it, or explicating its "genetic code." I wish I still had the message I received in reply. They explained that they were not interested in one scientist's or even consensus opinion about English usage. The editors felt strongly that their readers would not be comfortable with "determined the DNA sequence of X" and would like the sound of "decoded X." Accuracy be damned.

So there you have it. If you have time, read the decision. Yet another example of the intelligence to be seen on the U.S. District Courts of the nation.

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