Bonum Certa Men Certa

Calling Genetics and Other Things “Life Sciences” Does Not Turn Nature Into Patentable Science

Association for Molecular Pathology v. Myriad Genetics, Inc.
Reference: Association for Molecular Pathology v Myriad Genetics, Inc. | Wikipedia



Summary: The old riddle about whether naturally-occurring phenomena are patentable or not, in light of some very recent news (the past couple of days)

THE USPTO does not, in general, permit patents on genetics. The EPO has just opposed it, so it can be seen as hanging in the balance (the appeal boards will need to step in and decide).



A few days ago we wrote about life patents (e.g. patents on cancer treatments which aren't even drugs/chemicals). There are many different aspects to "life sciences" (a relatively new term if not buzzwords) and they should be considered in isolation: there's genetics, there's medicine, there's treatment, there's medical equipment and so on. They're not the same thing.

Days ago we revisited the scam which Allergan set up with the Saint Regis Mohawk Tribe. IAM, not to our surprise, wrote about it under the "life sciences" banner yesterday. Adam Houldsworth wrote: [via]

Allergan sovereign immunity strategy rejected – Allergan’s effort to make patents relating to its Restasis dry-eye treatment exempt from Patent Trial and Appeal Board cancellation proceedings by transferring them to the Saint Regis Mohawk Tribe suffered a serious blow last week. The board ruled that the tribe’s sovereign immunity does not extend to inter partes review, and that a Restasis patent should be subject to proceedings initiated by Mylan. This followed months of controversy surrounding the deal, which was seen by some as an attempt to circumvent the patent system and by others as a means of protecting important assets from a problematic administrative proceeding. The St Regis Mohawks have stated they will appeal the PTAB decision.


These are not "assets" but monopolies and PTAB is not "a problematic administrative proceeding." But remember that this is IAM, a PTAB basher like Watchtroll, Patently-O, Patent Docs and a few other blogs we monitor for their anti-PTAB slant.

Yesterday we saw this blog post from an anti-PTAB site called Anticipat. This company is selling itself as a 'cure' to PTAB's work and it seems to miss the simple fact that if a patent is abstract, then it's invalid. Full stop. Here's the latest rant:

We have previously reported that PTAB judges, like Examiners, are measured by a quota-based production system. For PTAB judges, the quota is based on the number of decisions they author. It is no secret that this production system prompts some Examiners and PTAB judges at times to get creative with practices to most easily meet their quotas. Here, we look at some recent decisions that show a pattern of PTAB judges deciding a Section 101 rejection without looking to the remaining pending grounds on appeal.


Why should they? Again, like we said above, if Section 101 applies (e.g. Alice), then it's over. We understand that many patent trolls and parasites are afraid of PTAB. It undoes the damage caused when patents were granted in a hurry and/or in error.

"Another day of watching Supreme Court opinions to see if Oil States will come out," wrote one lawyer this week. "Going to be at least another two weeks."

He's wasting his time. Oil States will likely be ruled unanimously in favour of PTAB and its much-needed IPRs. The patent system is a lot better now. SCOTUS has already named "trolls" and bemoaned the effect of frivolous patent litigation. It not only gave Alice but also Mayo and Myriad. PTAB actually enforces these; so why would SCOTUS weaken PTAB now?

The situation is a tad different in Australia, probably due to pressure from the likes of CSIRO. The Australian attorney Mark Summerfield is now ranting about medical/clinical trial patents facing an uphill battle. To quote:

From a policy perspective, getting the balance right is particularly important in the case of pharmaceutical products. If it is too difficult to obtain a valid patent, there may be insufficient incentive for companies to invest billions of dollars in new drug development. On the other hand, it is important to keep in mind that, one way or another, it is the wider community – either individually, or through taxes in countries where healthcare is substantially subsidised by government – that ultimately pays for that development, through the higher prices charged for patented drugs. Allowing patents to be granted too easily therefore may therefore represent a significant social cost.


Australia's attitude towards patents on life was already mentioned here over the weekend. Patent Docs, a patent maximalists' site, wrote about it a short while ago. It's about Myriad again. To quote:

When the Australian High Court ruled against the patentability of isolated naturally occurring genes in the Myriad decision, a number of commentators believed that the decision would ultimately invalidate claims directed to methods involving the practical application of genes. A recent Federal Court decision, however, has confirmed that claims directed to methods involving the correlation of gene sequences to a particular trait in cattle are patent eligible subject matter in Australia.


Time will tell where the EPO stands on Myriad-type cases. At the moment it looks like there are forces tugging at both directions. Our position on that has always been the same: while we support affordable life-saving drugs and usually generics (access to medicine designed to maximise public health), we aren't against patents on drugs; what we're against are attempts to patent life itself, i.e. chromosomes, genome, antibodies, DNA sequences and so on.

Recent Techrights' Posts

Within Weeks, Clownflare Has Collapsed Again, Time to Dump Clownflare
It's run by amateurs who, even if you maintain your site perfectly well, will render it inaccessible without prior notice
Web Developers in the US Can Already Disregard Mozilla, Firefox, and Firefox Users
"Last month, Firefox turned 21"
 
Links 05/12/2025: Slop Harming Democracy/Elections, More Bans Around the World on Kids' Use of Social Control Media
Links for the day
IBM Has No Layoffs, According to IBM, and According to the Media Parroting IBM
Another day of parrots (losers) who call themselves "journalists"
IBM Will Make You Unemployed On Christmas Eve
lists of people to cull
Cars Getting Worse and More Lethal
Who will be held accountable?
To "Take Back Control" Start With Actions Against 'Tech' (Mass Surveillance, Mass Censorship, Mass Control) Monopolies
collusion, price-fixing, a "cartel" of sorts
Beyond the Hype: Almost Nobody Uses Chatbots, Not Even 1% of Activity Online
3 years ago when Scam Altman (Microsoft) acted as if Google (search) was doomed a lot of the press got paid to pretend this was true
Rumour That Another IBM Round of Mass Layoffs (RAs) in Preparation Before the Current One is Even Completed
IBM still has strong brand recognition (because of its age and past might), but that won't last forever
Techrights Publication Pace to Increase Next Year
one is encouraged to stay indoors
Upgrading the Site
Debugging might be needed, so feedback helps
Why Microsoft is Panicking
Keep advocating (or "marketing") GNU/Linux to Vista 10 (or Vista 7) users... there are still over a billion of them "out there".
The Fate of "Blockchains" and "Metaverse" as a Sign of Things to Come for Slop ("AI")
Doesn't that tell us a lot about the modus operandi of these companies?
A Year After the Owner of X (Twitter) Performed Several Nazi Salutes on Stage the Germany-Based and Microsoft-Funded 'FSFE' Decides to Exit X (Twitter)
Will the real Free Software Foundation (FSF) follow suit?
EPO: What Comes Next
European media seems to have been sedated by soft bribes from cocaine addicts
Slopwatch: The Volume of Slop Has Certainly Gone Down a Lot Lately, Slop Image Providers Abandoned/Changed
It's a big improvement compared to past months
Thousands Laid Off at IBM, "Last Day" Yesterday
IBM is a dying company. This is a problem for Red Hat.
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Thursday, December 04, 2025
IRC logs for Thursday, December 04, 2025
Gemini Links 05/12/2025: Espressif ESP32-C5 UEXT Module, Pixelfed, and the Web Getting Much Worse
Links for the day
Links 04/12/2025: "People Hooked on [Slop] Far Are More Likely to Experience Mental Distress", Monopolies in Europe, and "Blogging Makes Me Feel Like A Worse Writer"
Links for the day
Dr. Andy Farnell: Can we regain control (of technology)?
"Technology as spiralling mass hysteria has the unsettling potential to draw even rational sceptics like myself into disaffection"
Links 04/12/2025: "Hey Hi" Implosion and Half of Europeans See Cheeto Trump as Enemy of Europe
Links for the day
Communication Needs Open Standards and Open Data
Standards are imperative
The "Hey Hi" House of Cards
The "Hey Hi" bubble is living on borrowed time (days or weeks) and it can implode any time now
Supporting the Free Software Foundation (FSF) Also Supports GNU Development
The FSF is mostly raising money to pay salaries
IBM's "AK Sez" Campaign
In today's media, to be characterised as important and smart one needn't be important and smart
Microsoft's Vista 11 Not Gaining, Just Plateauing or Even Going Down (Over Time)
"Desktop Windows version Market Share Worldwide"
Bubbles Popping, "Hey Hi" (AI) a Passing Fad
"Microsoft slides amid report it's cutting software sales quotas tied to AI"
At The Register MS, "Exclusive Webinar" Means Sponsored Video Ad Disguised as an Article
Why would one choose to watch these?
IBM Forces Staff to Sign an NDA If They Want Severance Package, in Effect Bribing Them or Denying Them Money They're Entitled to If They 'Disparage' IBM
We wrote about the legality or illegality of this in relation to Microsoft two years ago
IBM and Red Hat Not Done With 2025 Layoffs ("RAs") Yet
IBM isn't quite done laying off people this year, with only 3 weeks till Christmas
Gemini Links 04/12/2025: Christmas Looms, Devuan, and Programming
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Wednesday, December 03, 2025
IRC logs for Wednesday, December 03, 2025
Loads of People Exit IBM Tomorrow
Way to slam the door on on those who march or walk on
Slopwatch: It's Blowing, Jim (Gym), the Bubble is Blowing Up
Let's race to "zero GPT"
At IBM, "Last Day" Can be Same as Layoffs ("RAs"), Might be Euphemism Advanced by PR/HR Under NDA-Tied Conditions
They try to act all happy cheerful (in public) about becoming unemployed
Links 03/12/2025: "Disastrous Hey Hi (AI)", Breaches of Confidentiality, and "Global Democratic Recession"
Links for the day
Fake Security and 'Free' Certificates as a Trap of Planned Obsolescence and Top-Down Centralisation
The boiling frogs
Links 03/12/2025: UK Budget Leak and Criticism of Peace Posturing Over Ukraine
Links for the day
So Far Rust in Ubuntu Has Turned Out to be an Expensive Mistake
it is certainly seeming or feeling like the wrong people are in charge and they make bad decisions based on false reasoning
Gemini Links 03/12/2025: Obsession, Ubuntu, and Programming With Scheme
Links for the day
The Next Stages of EPO Coverage (and Why That Matters)
What's at stake here?
Wayland Rejection Is Not Racist
We need to collectively reject that
Reflections on a Month of Techrights Search
it looks like we've survived nearly a month without the search functionality being leveraged to stage DDoS attacks
New Year's Resolutions 4 Weeks Ahead of 2026
the main New Year's Resolution was... sleep
IBM Layoffs: It's Like They Read From a Script, Like They've Signed a Non-Disparagement Agreement/Clause
Some new departures
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Tuesday, December 02, 2025
IRC logs for Tuesday, December 02, 2025