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"It is also important to dispute the dissent's analogy to snapping a leaf from a tree. With respect, no one could contemplate that snapping a leaf from a tree would be worthy of a patent, whereas isolating genes to provide useful diagnostic tools and medicines is surely what the patent laws are intended to encourage and protect. Snapping a leaf from a tree is a physical separation, easily done by anyone. Creating a new chemical entity is the work of human transformation, requiring skill, knowledge, and effort." They're not creating a new chemical entity. The gene was created by evolution (natural selection, genetic drift, mutation) millions of years ago. The DNA sequence existed and performed its function long before any human began studying it. Furthermore, such information could already be found isolated in the form of mRNA, which contains the same information as the DNA gene (with the thymines replaced by uracils). Ultimately, what really matters for the function of the cell and even the diagnostic method is the information coded in the DNA, RNA, or protein. You are simply using a different alphabet to represent the same thing. And because the information was designed by nature, it shouldn't be patentable. Nearly all experiments require you to modify what you're observing in order to measure it. That's why I feel the argument asserting that because you "modify" something makes it susceptible to patent protection is weak. If I combine water with some powder and sell it, I can patent the final product or maybe even the process to make it, but not the water. Water was present before I had the idea. BRCA1 was there before we had the idea of linking it to cancer, it's a substance just like water. The troubling thing in this case is there's not even a modification involved. Cutting a DNA segment from the chromosome doesn't alter its sequence. In fact, separating DNA pieces happens routinely during recombination. The problem is that they're not only protecting the diagnostic tool like the majority ruling says, they're claiming ownership of a chemical substance present in all humans that was invented by nature. I would support patenting the DNA sequencing method they used, but never the gene itself. |