The BRCA1 gene must be altered and the eukaryotic host cell must be transformed, although not expressly stated in the wording, the eukaryotic host cell must be transformed with a BRCA gene. Therefore it does not preclude all cancer screens, only screens designed in recombinant BRCA cells.

This is called a reach-through claim, because the claims are directed to a screen of BRCA cells, they are looking to license or garner royalties from BRCA interacting drugs. The value and legitimacy of these claims is difficult to assess. They have not identified any particular cancer treatments, yet try to claim unknown compounds that may interact with BRCA. If the ACLU were challenging this claim on an enablement argument, their case would be stronger. Of course, there is no evidence that Myriad stopped people from screening BRCA or have collected royalties on BRCA interacting therapeutics.

It is easy for you to come in 20 yrs after the fact and say, “that is easy!” You are asking why they got claims in an application that was filed 15-20 yrs ago. The techniques and sequences are commonplace. The ability to identify genes expressed under differing conditions has also improved in the last 20 years. Your arguments use hindsight with today’s technology to downplay a discovery made when technology wasn’t as advanced.

It’s easy to design a phone that has no keys and uses only a touch-screen. Why would that ever be popular?

People have used typewriters and letters for years, how could there ever be a new novel if they all contain the same letters and the same words? All you’re doing is changing the order, thus there are no new novels (books or songs).

Mike

There are no “replicative cloning vector” DNA naturally occuring in the human body. “Recombinant” by definition is modified by man.

No one skilled in the art of recombinant DNA would read a “replicative cloning vector” on naturally occuring DNA in a virus, bacterial DNA, or human.

Please provide another example where you read the limitations that are present in the claims.

Mike

Are you admitting that the ACLU claims that the method patents are genes is frivolous?

-Gene

You’re claim that patent 5747282, doesn’t patent a gene is without foundation.

Claims 8 an 9 of the patent application specifically make it a patent violation for any person carrying the gene.

Specifically, the natural process of cellular replication violate the patent. Here read it for yourself:

8. A replicative cloning vector which comprises the isolated DNA of claim 1 or parts thereof and a replicon operative in a host cell.

9. A replicative cloning vector which comprises the isolated DNA of claim 2 or parts thereof and a replicon operative in a host cell.

The human body is a replicative cloning vector, and some humans clone that gene in isolation of other genes, for at least some time frame no matter how minute, and always inside a host cell, with a replicon operative. The reproductive act of persons with this gene would also isolate the offending genes, and pass them on to the newly created embryo.

So somebody discovered cancer causing genes and wrote a patent around it, so no doctor could even look for the gene using standard and non-innovative testing methods, and then tacked on what “may be” a unique way of looking for it. By so doing they preclude anyone looking for the gene in any manner. Now what was it they “invented” that deserved a patent?

See how dangerous “gene” patents are?

Now if they have some unique way that modifies the gene and fixes the flaw, that’s truly spectacular and go ahead and give them a patent on the treatment. Or if they have discovered this gene can only be found by some new and novel approach then sure patent that, but let’s strike from the patent all the pre-existing methods of looking for it.

By what I read of the patent, all researchers are now precluded from searching for a cure to the cancer causing genes, (claim 20). Even ways they haven’t though of. How is this a good thing and not a 1st amendment issue? Please, I’d really love to hear your argument on this specific point (claim 20).

See, that’s the real problem, is there are too many fields of useful arts and science and not enough qualified patent examiners. Patents should be looked at by experts in the field, or fields, of the patent. Then we’d get rid of junk patents and overly broad patents, and we’d get only really good solid innovative patents. Of course, it’s put a lot of patent attorneys out of business, because we’d have a patent system that actually worked for what it was intended for. And the patents granted would be rock solid.

I’ve focused my beef primarily on the ridiculous (and unsupportable) allegations is this Complaint that granting patents covering isolated genes and methods for identifynig/detecting/etc. can be unconstitutional or that covering isolated genes is inconsistent with 35 USC 101 (it’s not). But your points about standing are well-taken. The only way Congress has authorized a challenge to validity in the PTO on a patent is by reexam, and it doesn’t include issues relating to constitutionality of the original patent grant or issues under 35 USC 101.

No ax to grind, just calling it straight and accurate, unlike Judge Sweet. The fact that the most liberal President in history appointed Sweet explains a lot, and it was certainly fair to point that out. Liberals always point out when a judge has been appointed by a Republican President when they disagree with a conservative ruling, so fair is fair and context needs to be provided to understand Sweet’s judicial philosophy. Activist judges do what they want, and with life tenure that creates enormous burdens on society.

Every first year law student knows that you cannot bring a cause of action on a constitutional basis just because you want to do so. If that were the case the courts would be littered with Constitutional cases, and they are not. You must have standing, and quite simply there is no standing here. Judge Sweet recognizes, correctly, that there is no statutory basis to bring the claim, so there can be no standing as a result of a statute. Judge Sweet then accurately explains prudential standing, explaining that a general grievance cannot be brought. He also recognizes the authority that says a policy question should not be addressed by the courts, and then proceeds to ignore those cases and all other rules and regulations that demand judicial restraint.

With respect to your erroneous understanding of personal injury, what the plaintiffs are requesting is essentially a form of declaratory judgment, and they simply do not have any interest that is any different than the general public. Myriad has not threatened to sue them. If this case is allowed to go on then anyone who has no money for a patented technology, device or method can sue to claim that the Patent Act is unconstitutional. That is nonsense. These plaintiffs have suffered no injury, and learning about their future is not a right granted by the Constitution. Regardless of what Sweet ruled, they have suffered no recognizable legal injury.

You can believe I didn’t read the decision if that makes you feel better, but I did read the decision and I am right. Judge Sweet is wrong, and any Constitutional scholar who is honest knows that to be the case. The ACLU should not be rejoicing. While they will undoubtedly receive favorable treatment in Judge Sweet’s courtroom there is absolutely no chance that the ACLU will ultimately prevail. Whether it is as a result of an appeals court correcting his obviously flawed and incorrect decision, or as a result of Congressional action.

-Gene

I.e. Quinn says there is no statutory basis for the case:
“The United States Congress has created an highly specific regulatory regime relating to patents, and there is simply no basis in law to bring this case “.

But the judge clearly states his basis is Constitutional not statutory:
“Indeed, even when Congress has created a statutory remedy, if that remedy is not coextensive with the remedy provided by the Constitution, plaintiffs may still bring a separate action to enforce the Constitution.”

Quinn then claims the defendants have no personal injury or relief to justify standing:
“The defendants raised the legally correct point that there is simply no standing to sue and challenge the USPTO or these patents … [P]rudential standing requirements dictate that the judiciary should avoid deciding questions of broad social import where no individual rights would be vindicated, and that prudential standing requirements require a party to assert their own legal interests rather than generalized grievances or grievances of third parties”.

But the judge clearly states the plaintifff’s personal injury and relief:
“Fairly included in this prayer for relief is a request that the Court declare unconstitutional the USPTO’s policies and practices with respect to the challenged claims and similar classes of claims. Granting Plaintiffs’ request for relief would serve to render the claims-at-issue definitionally invalid. As a result, the Plaintiffs would be allowed to engage in conduct currently prohibited by Myriad’s patents, and the alleged injuries would be redressed.”

It sounds like Quinn is grinding an ax against Jimmy Carter rather than reading the actual decision. I’m not saying the suit has merit, but this post doesn’t address that.

Dave and Gene,

Having now reviewed the patents involved, let me correct this statement I made earlier: there is no basis under 35 USC 101 for challenging these patents either. The claims are to isolated genetic material or methods for identifying/screening/detecting. In other words, the patentee isn’t simply claiming a “product of nature” (the claimed isolated genetic material doesn’t exist in nature).

To put it bluntly, the plaintiff’s allegations that these patents cover “products of nature, laws of nature and/or natural phenomena, and abstract ideas or basic human knowledge or thought” are utterly groundless and complete rhetorical nonsense. As far as I’m concerned,this suit is a complete waste of judicial resources. I can only hope that the Federal Cirucit will trounce this opinino when it gets the appeal.

With all due respect, I agree with Gene that the constitutional challenges to these gene patents are absolutely unsupportable and frivolous no matter what facts might be presented. And with all due respect to the judge here, he’s turning this case into a farce to continue to allow these constitutional challenges to these gene patents to proceed forward. Since Chakrabarty v. Diamond, SCOTUS has said that life forms may be patentable subject matter. That implies that the genetic material or testing procedures based on that genetic material may also be patentable subject matter. SCOTUS in Chakarabarty saw no “constittuional Issue” in patenting life forms or its genetic material, nor do I. That the judge’s opinion spends a mere 4 pages on the constitutional challenge issue (after spending 80 pages) just highlights the absurdity of allowing this issue to proceed forward.

Interestingly, there is absolutely no mention of the suffiiciency of this Complaint under 35 USC 101 as to whether these patents cover merely a “product of nature.” That’s the only issue that might have any merit to go forward, at least to a motion for summary judgment. But as I said before this opinion came out, these constitutional challenges have absolutely no merit to go forward.

yes, because he finds that individual rights of plaintiffs would be vindicated, and that they have asserted more than generalized grievances or grievances of third parties. He finds that the cease and desist letters from Myriad amounted to an ongoing, actual injury, for instance.

The lawsuit is not frivolous, there will be no Rule 11 sanctions, no dismissal on standing, and now we’ll get to the merits. As I have stated from the beginning, the case makes a cognizable constitutional claim, and federal pleading requirements are liberally construed. So, now, let’s see what happens. No matter what the decision on SJ in the district court, this is going up to SCOTUS, and it’s going to be very interesting to see what happens!

best,
David