Legal Research Blog
Can our genes be patented? More importantly, what consists of a change that is significantly patentable? In a follow up to this winter’s blog entry regarding the case Association of Molecular Pathology, et al. v United States Patent and Trademark Office, et al we continue to look into this potentially revolutionary biotechnology case.
The case covers the patent dispute over the BRCA1 and BRCA2 genes as well as the diagnostic tools involving these genes which are held by Myriad Genetics of Utah. Mutations of these genes indicate a strong possibility of breast and/or ovarian cancer. Plaintiffs have argued that the patent was improper because the DNA was part of the human body and therefore part of nature; while the defendants have argued that the chemical was isolated and the copyright protects the work that went into their research.
The urgency behind this case is rather incredible. The earlier one can determine whether or not they are likely to develop or redevelop the cancers, the more treatment options become available. The patents on these genes and the test for mutations have created a monopoly as researchers, patients, and their doctors all have to go through Myriad Genetics. Testing alone, if not covered by insurance, can be $3,000 per test. That is only the tip of the iceberg. A ruling against Myriad also has the potential of upending decades of patents revolving around the human genome. Saying that billions of dollars are at stake is an understatement.
Last year a New York federal judge has struck down some of the patent, namely that the isolation of the genes was not enough to patent them. Gary Cohen of the Foundation Medicine speaking with The Atlantic pointed out that this ruling is likely a transformation of thinking resulting from the digital age:
“We’ve been accustomed to thinking of DNA as a molecule, a chemical entity (which, of course, it is). But in this more sophisticated era, we understand that DNA is not “just” a molecule; its an information-carrying molecule. Genes are better thought of as packets of information, not mere molecules, Judge Sweet reasoned. This reasoning is key to his decision — because the information encoded by a gene is the same, whether its sitting amongst its natural neighbor genes, or in isolated form. That’s why researchers want to isolate genes — because they are useful in all sorts of ways, but only because the isolated form contains the same genetic instructions as the naturally-occurring form. Using this information paradigm, the judge reasoned that “isolation” does not render a naturally-occurring gene something novel, something patentable. This part of the ruling is what makes it so interesting — its very much consistent with “information age” thinking — bits, bytes, genetic base pairs, genes: all information carriers.”
On Friday the U.S. District Court for the Southern District of New York ruled in favor of Myriad’s patent. The reasoning being that the BRCA genes are not found isolated in nature and can thus be patented. There has been quite a bit of uproar over the new ruling, Mike Masnick over at Techdirt had this to say about the decision-
“Basically, they seem to be arguing that because a severed finger is not attached to a hand, the finger is not naturally occurring, and, thus, is patentable.”
It was not a complete victory for Myriad however. Some of the patents on the diagnostic tests that were in dispute were invalidated. It is likely that the case will move on to be reviewed by the full panel of judges rather than just the three that heard the case and likely proceed to the U.S. Supreme Court. There is a chance for a different result, as the dissenting opinion by Bryson was more in line with the original opinion issued by Judge Sweet.
The back and forth in this case simply increases the drama on an issue that will have such a large impact on the biotechnology industry, decades of patent awards, and the millions of patients who depend on these tests- and Myriad- for their well being.
We always love a post about how to work more efficiently. That’s why we loved Jim Calloway’s column in LawyersUSA about how to use checklists in practice. The source of Jim’s enthusiasm? Atul Gawande’s book “The Checklist Manifesto.” From the column:
Lawyers tend to be creative problem solvers. The idea of spending the work day following detailed checklists may strike many as a rigid and unappealing business model. But the opposite is actually true. If you are going to have to do many simple and mundane tasks (and we all do), it is better to get them completed in less time and with less effort. That frees up more of your time for the valuable and creative work of lawyering and it might even allow you to go home a little earlier that night.
Read the whole post here.
Click here to read our post about how to handle items that have been sitting on your checklist for too long.
Jim Calloway is the Director of the Oklahoma Bar Association Management Assistance Program and co-produces the monthly podcast, The Digital Edge: Lawyers and Technology. He is also a legal tech Jedi — having chaired the ABA Techshow and spoken about legal technology just about everywhere one can. Legal tech is often intimidating and bewildering to users — and despite (because of?) Jim’s mastery, he is still able to explain hardware, software, and processes in ways that any lawyer can understand. He’s also the recent winner of a Fastcase 50 award honoring law’s smartest, most courageous innovators, techies, visionaries, & leaders.
Fastcase spent a busy week in Philadelphia, exhibiting and having a great time at the American Association of Law Libraries Annual Meeting. Coming off of a win at the 2010 Annual Meeting for New Product of the Year, Fastcase took the opportunity at the 2011 meeting to highlight our latest features, recognize top legal innovators and of course, have some fun. With the Fastcase Cloud Printing launch just the day before the Exhibit Hall opening ceremony, our team had the opportunity to showcase the suite of applications that will provide users with one-click printing from a variety of legal applications. We were excited to be able to share this development first with some of the legal field’s most creative and forward thinkers. In addition to stopping by the Fastcase exhibit for demonstrations, word spread quickly about the new additions to the Fastcase t-shirt line. Many law librarians left the Annual Meeting with quite the souvenir.
On Monday, Fastcase announced the winners of our inaugural Fastcase 50 list. The list featured individuals from across the legal field including state bar leaders, bloggers, librarians and legal tech innovators and created quite a buzz at the Annual Meeting. To view the full list and read more about our 2011 winners, take a look around the Fastcase 50 winners page here – while you’re at it, start brainstorming your nominations for next year!
Wrapping up AALL 2011, CEO Ed Walters coordinated a panel to discuss the law library’s impact on the Law.gov movement. Building on the conversation started last year at a workshop at the Center for American Progress , Ed brought together panelists Greg Lambert of King & Spaulding, Sarah Glassmeyer of Valparaiso University Law School Library, Keith Ann Stiverson of Chicago-Kent College of Law Library and Carl Malamud, founder for Public.Resource.org. The group provided great insight from their respective backgrounds and assured that the conversation about open-sourcing the law remains open and active.
We would like to say thank you to everyone at AALL for another great Annual Meeting and for those of you who joined us in the PLL-Fastcase Hospitality Suite. We are grateful for your support of Fastcase. Let the countdown for AALL 2012 commence!
Starting today, the State Bar of New Mexico will be providing access to Fastcase for its 8,600 members. The benefit includes free access to Fastcase’s comprehensive national research service, including state and federal materials. Its New Mexico libraries include caselaw and statutes, session laws, administrative rules, regulations and codes. The service also includes transactional access to newspaper articles, federal court filings, and legal forms. Members may log in by going to www.nmbar.org, opening the legal research drop down menu, selecting Fastcase, and entering a bar ID and password.
Members will also have access to the newest Fastcase feature – annotations for statutes. Look for more news about Fastcase annotations right here on our blog!
The wildcard operator is one of the most powerful Boolean operators in your toolkit. At Fastcase, we use the asterisk symbol (*) as our wildcard.
When you put the asterisk after the stem of a word, your search will return documents containing any word beginning with that stem.
Termin* → Search results containing the words termination, terminated, terminal, etc.
Litig* → Search results containing the words litigator, litigation, litigious, etc.
Eat* → Search results containing the words eat, eaten, eatery, eaters, eating
As you can see, using the wildcard operator is a very powerful and flexible tool. Think about incorporating the wildcard regularly in your searches.