Last Updated on Wednesday, 4 November 2009 09:25 Written by dbhalling Wednesday, 4 November 2009 09:25

---

Gene Quinn in IPWatchdog.com has an excellent article (please read the whole article) on the Myraid Genetics case.  Mr. Quinn explains the absurdity of the claims by the ACLU.  But the part his article I want to focus on is the assertion by many critiques of “gene patents” that the Patent Office is issuing patents on naturally occurring genes.  As Mr. Quinn’s excellent article shows the claims are clearly not directed to naturally occurring genes – see below.

US Patent No. 5,693,473 is being challenged, and claim 1 states (in relevant part):

1. An isolated DNA comprising an altered BRCA1 DNA…

US Patent No. 5,709,999 is being challenged, and claim 1 states (in relevant part):

1. A method for detecting a germline alteration in a BRCA1 gene…

US Patent No. 5,710,001 is being challenged, and claim 1 states (in relevant part):

1. A method for screening a tumor sample from a human subject ….

US Patent No. 5,753,441 is being challenged, and claim 1 states (in relevant part):

1. A method for screening germline of a human subject…

US Patent No. 6,033,857 is being challenged, and claim 1 states (in relevant part):

1. A method for identifying a mutant BRCA2 nucleotide sequence…

You see, had Judge Sweet actually looked at these patent claims in question there is absolutely no way he could have reached this decision.  There is simply no way that anyone who is being fair, honest and impartial could find the facts as alleged by the plaintiffs to be “plausible,” yet that is what Judge Sweet did.

Allow me to state the obvious at the risk of being vilified for being correct.  Isolated and altered DNA does not naturally occur.  Methods for detecting, screening and identifying do not naturally occur.  Diagnostic methods and screening techniques are carried out by people, and the presence of a human actor makes these claims patentable under Diamond v. Chakrabarty.  That is the law, and filing a lawsuit and having an activist judge ignore the law does nothing but impose unjustified and unwarranted costs on those who can read, understand the law and know what it means.