Did you scan and email a document recently? You might owe $1000 to a patent troll.

We've seen how badly the U.S. patent system is broken when it comes to gene patents.  The recent U.S. Supreme Court case overturning Myriad Genetics' patents on the human breast cancer genes, BRCA1 and BRCA2, was a step in the right direction.  But the problem goes much deeper than that.  The U.S. Patent and Trade Office (USPTO) simply can't keep up with technology, and as a result its lawyers keep granting patents that they just don't understand.  As a result, completely obvious ideas end up as patents, inhibiting innovation and keeping beneficial technology out of the hands of the public.  This is just the opposite of what the patent system is supposed to do.

It's not only gene patents that confuse the USPTO.  They also fail miserably when it comes to computer technology.  Some years ago, they issued a patent for scanning in a document and emailing it.  This idea is so obvious that it probably was "invented" by thousands of people back in the early days of scanners, and most of them probably didn't think to patent it.  But one guy did, and now his patent is owned by a patent troll: a company that doesn't make anything, but threatens to sue everyone in sight to extort money from them.

And now we have a law firm that is going around demanding $1000 in licensing fees from everyone who scans a document and then emails it.  ArsTechnica wrote about this back in April, and again in May when HP decided to fight back, pointing out that HP was selling printers that could scan and email documents before the patent in question was granted.

But that's kind of not the point, is it?  The USPTO should never have granted this patent, which was just for the idea of scanning and emailing - the inventor didn't build anything, nor did he create some novel technology.  Patenting ideas for computer programs as "business methods," which the patent office started allowing back in the 1990s, opened the floodgates to patent trolls, and we're suffering the consequences today.

And now, surprisingly, two U.S. states are fighting back.  In the past week, Vermont's and then Nebraska's attorneys generals have sent letters telling the patent troll (a company called MPHJ and its lawyers, a firm called Farley Daniels) to leave their citizens alone, as the Washington Post reported this week.  They might win, too, using a new law in Vermont that lets victims of patent trolls sue back.

The problem is that we have a large and powerful industry of patent lawyers who are deeply invested in the current system, and fight tooth and nail against any attempt to change it.  Perhaps the recent egregious over-reaching by some greedy folks, including those who hold patents on human genes, will finally make it clear that the patent system is broken and in desperate need of major reform.

Myriad Genetics CEO Claims He Owns Your DNA

With the Supreme Court about to hear a landmark case on gene patents, Myriad Genetics, the company that owns the patents under scrutiny, is going on the offensive.  I've written about this case before, when the patents were first thrown out by one court, and then restored by another.  Now the Supremes will have the final say.

Just last week, geneticists Jeffrey Rosenfeld and Chris Mason wrote a commentary for the Washington Post that warned about the consequences of companies owning the rights to our gene sequences.

Today, in a letter filled with non sequiturs and distortions, Myriad Genetics' CEO Peter Meldrum, worried about whether his company will be able to maintain their monopoly on a test for which they charge $4000, responded.  Let's look at his claims.

First, though, let me remind readers that the genes in question, BRCA1 and BRCA2, are linked to an increased risk of breast and ovarian cancer, a risk that was first discovered in 1994 by scientists at the University of Utah.  Myriad Genetics owns a patent on these genes, and as I wrote last year:

"Thanks to these patents, you can’t look these genes in your own body without paying a fee to Myriad. Sounds ridiculous, right? Well, that was the state of gene patents until last May [2011], when judge Robert Sweet ruled that the Myriad’s patents were invalid."

Myriad appealed the decision, and the appeals court overturned Judge Sweet, buying into the argument by Myriad's lawyers that "isolated DNA" is not the same as the natural DNA, and that this distinction allows companies to patent it.  This is scientific nonsense for many reasons: for one thing, the process of isolating DNA does not create an artificial molecule. The body's own cells isolate DNA all the time, in the process of turning it into proteins.  But the appeals court accepted the argument, perhaps just because they wanted to uphold the patents.  So now the Supreme Court will re-examine this scientifically ridiculous claim.

Now let's look at CEO Meldrum's letter.  He first claims that Myriad's patents

"were essential to developing diagnostic tools that have been used by more than 1 million women to understand their hereditary risks of breast cancer and ovarian cancer."

This claim is simply false.  Myriad's patents made no contribution at all (and certainly weren't "essential") to the diagnostic tools used to detect mutations.  I know something about these tools, which I've been using in my own research for over 15 years.  Furthermore, academic medical centers were offering their own diagnostic tests on the BRCA genes, at a lower cost than Myriad, until Myriad's lawyers forced them to stop.  So Myriad's patents have increased costs to patients and, if anything, slowed down progress on making the tests faster and cheaper.

Second, Meldrum writes:

"Were these molecules derived in part from natural material? Sure. But that is true of many patents. Labs routinely turn naturally found molecules into innovative medicines and get patent protection."

One's jaw drops at this irrelevant non sequitur.  Myriad has never created "innovative medicine" or any other sort of medicine.  And the BRCA gene tests are not medicine: they are a diagnostic test that reads your DNA and tells you if you have harmful mutations in two specific genes.  Myriad's patents have nothing to do with medicines that treat breast and ovarian cancer - although it's clear that Meldrum would like us to think otherwise.

Third, Meldrum claims:

"Our tests are also accessible; some 95 percent of patients get insurance coverage, and we offer the test for free to those who cannot afford it."

This too is irrelevant, and also untrue.  The fact that 95% of patients have insurance, even if true, has nothing to do with whether or not genes should be patented.  And this merely hides the fact that Myriad's test is outrageously overpriced, at $4000 per patient.  The actual costs of testing for this gene should be far lower: we can now sequence an entire genome for $4000, and this test only looks at 2 genes out of more than 20,000.

Meldrum also throws out the unproven claim that Myriad offers it for free to those who cannot afford it.  Really?  Who decides if someone can afford it? If a woman can scrape together the $4000 with great hardship, does Myriad give her a break on the price?  I doubt it.  And what does this have to do with Myriad's supposed right to own your genes?

Fourth, Meldrum makes the remarkable claim that

"Our patents have also promoted additional research; 18,000 scientists have studied the genes, resulting in 10,000 published papers."  

This is just unfounded bragging.  Even the most wildly successful scientists would be very careful about claiming that that 10,000 papers have been based on their work.  In the case of Myriad, this is just false.  If you do a PubMed search for BRCA1, you can indeed find over 9,600 papers, as I did today.  However, there is no evidence whatsoever that these papers were even remotely supported by Myriad's patents.  It is far more likely that the patents prevented additional research on the BRCA genes.  The vast majority of research on these genes was supported by the public, which in the U.S. means by the National Institutes of Health.  Meldrum's boastful claim is absurd.

It's worth noting that the original paper describing the link between BRCA1 and breast cancer was published by a multi-institutional team from the University of Utah and other places, who were supported by multiple grants from the NIH and from the Canadian government.  Myriad Genetics subsequently licensed the patent rights from Utah, and has used them ever since to maintain its monopoly and prevent others from developing tests on the BRCA genes.  To claim that its patents promote innovation is pure nonsense.

The bottom line is that no one invented your genes, and no private company should be able to tell you that you can't even read your own DNA.  Today, you can get your DNA sequenced for less than the cost of the Myriad test.  Using free software (developed by my lab), you can scan that DNA for mutations in BRCA1 and BRCA2. And no company should be able to tell you not to.

Peter Meldrum's letter reveals that he doesn't care very much about the truth.  Meldrum made $4.87 million in 2011 as CEO of Myriad, so it's pretty clear what motivates him. Myriad's use of its patents to charge exhorbitant prices to women at risk for breast and ovarian cancer does not demonstrate innovation. It just demonstrates greed.

Federal judges decide that private companies own your DNA

Many scientists cheered last year when a federal judge ruled that human genes couldn't be patented. The case involved Myriad Genetics, which holds the patent rights on two genes, BRCA1 and BRCA2, that are associated with increased risks for breast and ovarian cancer. Thanks to these patents, you can't look these genes in your own body without paying a fee to Myriad. Sounds ridiculous, right? Well, that was the state of gene patents until last May, when judge Robert Sweet ruled that the Myriad's patents were invalid.

But now the courts have reversed themselves again. In a 105-page decision, two federal judges decided that the whole matter comes down to the meaning of the word "isolated." I kid you not.

Judge Sweet's ruling last year was based on the obvious scientific fact that genes are a product of nature, not an invention, and therefore they could not be patented. Patent lawyers were very upset over Sweet's ruling. Why was this controversial? Well, because the U.S. Patent and Trade Office has been granting gene patents for decades. Basically, once the USPTO decided to allow one gene patent, they never looked back, and they've now given out patents for over 4,000 human genes.

But this past week, an appeals court reversed last year's ruling and said yes, Myriad Genetics does indeed own the rights to the BRCA genes. The decision by Judge Alan Lourie reveals an astounding lack of understanding of DNA, genes, and genomes. I guess I shouldn't be surprised, but I had been hopeful that after the earlier ruling throwing out these patents, science and logic would prevail. I guess I should never underestimate the scientific ignorance of judges, though I should add that one of the three judges voted against his colleagues.

What was their contorted reasoning? They decided that "isolated DNA" is not the same as the natural DNA in your body, and that this distinction allows companies to patent it. (The word "isolated" occurs 219 times in the decision.) The judges wrote:

"According to Myriad, isolated DNA does not exist in nature, and isolated DNAs, unlike native DNAs, can be used as primers and probes for diagnosing cancer."

The mind boggles. Following this nugget, Judges Lourie and Moore give us a little mini-lesson in molecular biology:

"Native DNA exists in the body as one of forty-six large, contiguous DNA molecules…. Isolated DNA, in contrast, is a free-standing portion of a native DNA molecule, frequently a single gene…. Accordingly, BRCA1 and BRCA2 in their isolated state are not the same molecules as DNA as it exists in the body."

This is scientific nonsense, but the court bought it. (Over at TechDirt.com, Mike Masnick made the colorful analogy that this is like "arguing that because a severed finger is not attached to a hand, the finger is not naturally occurring, and, thus, is patentable.") Wrote the judges:

"we conclude that the challenged claims are drawn to patentable subject matter because the claims cover molecules that are markedly different—have a distinctive chemical identity and nature—from molecules that exist in nature."

Among other problems, Judges Lourie and Moore don't understand a basic fact of genetics: that genes are "isolated" by our body's own genetic machinery when they are copied into RNA and then translated into proteins. Or perhaps they do understand, but they don't care because they just want an excuse to keep gene patents around. This is what can happen when lawyers (judges) make scientific decisions: they go on for pages and pages about the semantics of a word ("isolated"), and produce a result that is scientifically meaningless.

Judge Bryson makes much more sense in his dissent, writing:

"the question in this case is whether an individual can obtain patent rights to a human gene. From a common-sense point of view, most observers would answer, `Of course not. Patents are for inventions. A human gene is not an invention.' The essence of Myriad’s argument in this case is to say that it has not patented a human gene, but something quite different—an isolated human gene."

So that's two judges (Sweet and Bryson) against human gene patents, and two in favor. This case isn't over yet; last week's ruling by the 3-judge panel will likely be appealed to the full appeals court next. It's hard to predict what they will say. Meanwhile, Myriad charges $4000 to run tests on BRCA1 and BRCA2, as I wrote last year. This means that if a woman wants to test her own DNA for any mutations in the BRCA genes - including mutations that weren't even known when Myriad got the patent - she must pay Myriad merely to look at her own genes.


I'm not a lawyer, but I already see one way around Myriad's patents in this flawed decision. The judge's (and Myriad's) reliance on "isolated BRCA genes" refers to the process of isolating and copying the genes using a laboratory method called RT-PCR, and then sequencing just the isolated bits. Today, though, we can sequence a person's entire genome, without "isolating" any particular genes, for under $5000, and then we can test for mutations in the BRCA genes without ever "isolating" them. In fact, a colleague and I published a paper just last year describing how to do this, and we released a free software package that allows anyone to test their BRCA genes at home on a desktop computer. Genomics Law Report has a detailed legal analysis of what our software means for the Myriad case.

Scientifically, it shouldn't matter how the judges define "isolated" DNA. And as two federal judges have now ruled, genes are not inventions, full stop. What's more, gene patents slow down science by throwing legal barriers in the path of anyone who wants to work on those genes. Finally, I'm amazed at the hubris of companies like Myriad - or anyone else - who claim they "own" a gene. Let's hope the full appeals court will reverse the tortured reasoning of Judges Lourie and Moore, and get the patent lawyers out of the laboratory.

U.S. comes down against gene patents

In a surprising move, the U.S. Justice Department filed a brief last Friday that declared, for the first time, that the U.S. government does not support the patenting of naturally occurring human genes. This new position is contained in a document filed as part of the ongoing legal challenge to the gene patents on the human breast cancer genes, BRCA1 and BRCA2.

As background: a company called Myriad Genetics has held the patents on these two genes since the late 1990s. They sell diagnostic tests that cost nearly $4,000, and if a woman wants to test her own DNA for any mutations in the BRCA genes, they are required to pay for this very expensive test. The gene patents prevent any competitors from offering the same test without paying Myriad a license fee. Earlier this year, the ACLU challenged these patents in federal court, and the initial court ruling, which came as a surprise to many, invalidated the patents. Myriad appealed, and it seems likely this will end up in the Supreme Court before it is finally settled.

I have a scientific interest in this case, having just published a paper that directly challenges gene patents by providing free software that allows anyone to test their own DNA for mutations in the BRCA genes. Our software requires that you first have your genome sequenced, which (of course) is not feasible for most people today, but which I think will be routine in the not-too-distant future.

It seems absurd that, having your own DNA in hand (on a flash drive, perhaps), you wouldn’t be allowed to check your own genes for mutations without first paying a license fee to a company. Actually, under current law you might have to pay hundreds of license fees, because thousands of human genes have already been patented.

The same government that issued these patents has finally woken up to this absurdity. In their amicus brief, the Justice Department wrote:

“the unique chain of chemical base pairs that induces a human cell to express a BRCA protein is not a ‘human-made invention.’ Nor is the fact that particular natural mutations in that unique chain increase a woman’s chance of contracting breast or ovarian cancer. Indeed, the relationship between a naturally occurring nucleotide sequence and the molecule it expresses in a human cell – that is, the relationship between genotype and phenotype – is simply a law of nature. The chemical structure of native human genes is a product of nature, and it is no less a product of nature when that structure is ‘isolated’ from its natural environment than are cotton fibers that have been separated from cotton seeds.”

Rarely have I seen such sensible scientific reasoning from lawyers, and I must say it is very refreshing. Just in case the text quoted above is isn’t clear enough, the brief goes on to point out that “the patent laws do not, however, embrace the products and processes of nature itself.” The reason for the bit about “isolated” DNA is that Myriad’s patents cover DNA that has been “isolated” from the cell, and the Justice Department wanted to make it clear that this distinction should not somehow make the DNA patentable.

The legal implications of my own challenge to the BRCA gene patents were discussed at length at Genomics Law Report, and by Forbes blogger Robert Langreth. It will be interesting to see how this latest filing by the Justice Department changes the picture. The implications go far beyond the BRCA gene patents: if the initial court ruling and the Justice Department’s position hold up, then virtually all gene patents, on human genes and on many other species’ genes, will become invalid.

It’s about time. New genes have been the basis of many exciting discoveries, but they are not inventions. No one should have exclusive rights to a gene that occurs naturally in a human, another animal, a plant, or any other living species.