“Cheese Please, and No More Exercise Wheels”

Jake Meyer by Jake Meyer

We've all talked to animals before, but never have the animals talked back.  Recent research makes the possibility of a day when the family dog calls your name, and tells you to sit and shake hands a little more probable.  Researchers at the Max Planck Institute for Evolutionary Anthropology in Leipzig, Germany have placed a human language gene in a strain of mice.

Although there are undoubtedly numerous genes that enable human speech, the replacement of the mice's FOXP2 gene with a human version of the gene had some surprising effects.  The mice with the human FOXP2 gene grew nerve cells with a more complex structure in the basal ganglia–a region of the brain used in language in humans.  The mice also had a new "voice."  When baby mice are separated from their mothers they make ultrasonic whistles.  But in the mice with the human gene, the whistle was a lower pitch.

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Wheels of Justice Grind Slowly for Havasupai Tribe

JulieBergerBy Julie Burger

In a remote section of the Grand Canyon about 450 members of the Havasupai Tribe live on tribal lands where they have lived for hundreds of years.  Another 200 members of the Tribe live away from Supai, the village area.  In March of 1990, researchers from Arizona State University (“ASU”) (Drs. Theresa Markow and John Martin) presented the Havasupai Tribal Council with a proposed diabetes study, saying that they would like to collect and use tribe members’ blood for diabetes studies.  The researchers met several times with the Tribal Council, but according to allegations, never revealed they intended to perform research other than diabetes research.  With the Council’s approval, blood samples were collected from members of the Tribe, including children and vulnerable people.  Researchers additionally took handprints from members.  English is not the tribal members’ primary language and many members do not even speak English as a second language.

The researchers did not stop at diabetes research.  They also performed additional research on the samples for schizophrenia, inbreeding, and population migration, and shared the samples with researchers at other institutions.  After discovering the additional research, the Havasupai filed state court complaints on behalf of individual Tribal members and on behalf of the Tribe against ASU and the researchers in 2004.  The Havasupai maintain that the schizophrenia and inbreeding research was stigmatizing and that they would not have consented to the migration research because it conflicts with their religious origin theory.  A member of the Tribe points out that “[the researchers] challenged our identity and our origins with our own blood and without telling us what they were doing.”

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Association for Molecular Pathology v. United States Patent and Trademark Office: Meet the Plaintiffs

Jake Meyer by Jake Meyer

Earlier this week, a lawsuit organized by the American Civil Liberties Union was filed challenging the validity and constitutionality of patents on the BRCA1 and BRCA2 breast cancer genes owned by Myriad Genetics.  The plaintiffs in this case include: women who wish to have testing for the BRCA1 and BRCA2 genes; researchers who have the capabilities to offer testing for these genes but are unable to because of Myriad’s patents on the BRCA1 and BRCA2 genes; medical organizations; and women’s health organizations.

The presence of the certain mutations in the BRCA1 or BRCA2 genes is associated with a predisposition to breast or ovarian cancer.  Women who have these mutations are much more likely to develop these cancers and men who have the mutation can pass the mutation to their daughter.  Women who learn they have these mutations will often opt for drastic surgeries, such as a mastectomy or oopherectomy (removal of the ovaries) to avoid a battle with breast or ovarian cancer.  However, Myriad Genetics owns patents that cover both the BRCA1 and BRCA2 gene sequences and mutations of the genes, which grant Myriad a monopoly over the gene sequences (for an example of one of Myriad’s patents click here). Myriad is the only company that offers genetic testing for BRCA1 and BRCA2 in the U.S. and therefore women cannot get second opinions before making decisions about major surgery.  Also, since Myriad has a monopoly on testing, it can charge whatever it wishes for the testing – currently the test costs over $3,000.  Many insurance plans don’t cover this testing and many people can’t afford the out of pocket cost of the test – so testing isn’t available to them.  Further, according to a 2006 study, Myriad’s test can miss certain mutations that help cause the disease.

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Nanobots!

Jake Meyer by Jake Meyer

Nanotechnology is a vague term that encompasses a wide range of technologies.  Some of the technologies may be as mundane as a material used to strengthen a tennis racket, such as the carbon nanotubes used in the Babolat NS Drive Tennis Racket.  But the term nanotechnology is also used to include inventions that appear to be science fiction.  One possible use of nanotechnology is to create tiny robots that can be introduced into the human body to a number of medical procedures such as: deliver drugs, clean arteries of cholesterol, or to transport oxygen in the blood stream.  Although it may be many years before we have tiny robots coursing through our veins, advances in science and technology are bringing medical nanorobots closer to reality. 

An article in published in Nature last week, titled "Miniature Devices: Voyage of the Microrobots," describes how scientists at the Institute of Robotics and Intelligent Systems in Zurich, Switzerland may have overcome three obstacles in the way of realizing a future filled with medical nanorobots – "how to make, power, and steer them."  To propel the robot, the scientists created an artificial flagellum – a biological propeller that allows bacterium to swim.  The artificial flagellum is attached to a magnetic "head," and when the robot is placed in an oscillating magnetic field, the flagellum spins, propelling the robot through liquids at a blazing speed of 1-2 micrometers per second.  The magnetic field that provides the power for the robot also provides a method for controlling the robot.  By changing the direction of the magnetic field, the direction of the movement of the robot is changed. 

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In Re Kubin: Federal Circuit’s Decision Sounds the Death Knell for Gene Patents

Joshua SarnoffGUEST BLOGGER Joshua D. Sarnoff

The U.S. Court of Appeals for the Federal Circuit (“Federal Circuit”) has decided an important case regarding the application of the obviousness requirement to gene patents.  In re Kubin, No.2008-1184 (Fed. Cir. Apr. 3, 2009).  That case upheld the rejection by the U.S. Patent and Trademark Office (USPTO) of typical claims to gene sequences as unpatentable because they were obvious.

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Patent Law Reforms Could Lead to More Money for the Patent Office, Better Patents

Jake Meyer by Jake Meyer

Previously, I discussed a proposed reform to the patent system: changing from a first-to-invent regime to a first-to-file regime.  This is just one of many proposed reforms being considered by Congress, as a part of two different bills.  An article published this week in Nature highlights how current proposed reforms to the U.S. patent system may appropriately address criticisms of U.S. patent quality.  The U.S. Patent and Trademark Office (USPTO) is understaffed and underfunded, which contributes to decreased patent quality.  Proposed changes to the U.S. patent system should help the USPTO to accumulate more resources, which should lead to higher patent quality.

An increasing number of patent applications are filed with the USPTO every year (from 355,000 in 2003 to about 495,000 in 2008).  The USPTO has a high turnover rate, where for every two examiners hired, one examiner leaves.  An examiner at the USPTO has about 20 hours to examine a patent application, which includes reading the patent application, searching through databases to determine if the subject of the application is novel and non-obvious, and to write a twenty page report on whether the subject of the application is patentable.  Despite the limited time spent on each patent application, an understaffed USPTO cannot examine the increasing number of patent applications filed which has lead to a growing backlog of unexamined patent applications (770,000 patents in 2008).  Currently it takes about 2 years to before a patent application is examined.

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Senate Considering a Big Change to the U.S. Patent System

Jake Meyer by Jake Meyer

The U.S. Patent System has always been a first-to-invent system, which means that the first inventor of an invention will be awarded the patent.  Most other countries in the world are a first-to-file system, which means that the first inventor to file a patent application will be awarded the patent.  This has always been one of the large differences between the U.S. patent system and patent systems in other countries, but an amended bill before the U.S. Senate may eliminate this difference. If it is signed into law, S.515 will change the U.S. patent system from first-to-invent, to first-to-file.

In a first-to-invent patent system, the current U.S. system, disputes sometimes arise over who invented the subject of the patent first.  To resolve the dispute, the parties must first go to the U.S. Patent and Trademark Office’s Board of Patent Appeals and Interferences.  If a party objects to the Board’s decision, the party can appeal the decision to the United States Court of Appeals for the Federal Circuit.  This is a lengthy and expensive process.

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Commentary in Nature Suggests Changes in Licensing Practices for Gene Patents

Jake Meyer by Jake Meyer

This week, the scientific journal, Nature published a commentary about gene patents.  In their article, “The Dangers of Diagnostic Monopolies,” Robert Cook-Deegan, Subhashini, Chandraskharan, and Misha Angrist, state that “patents have not caused irreparable harm in genetic diagnostics, but neither have they proven greatly advantageous.”  458 Nature 405-406 (26 March 2009).  The commentary recognizes that gene patents do cause a problem through the monopoly provided by a patent or exclusive license.  Exclusive licenses are difficult to invent around and the reality is that exclusive rights to testing for multiple common genes or variants associated with a disease ends up in the hands of one provider, even if they’ve only patented one or two of the genes.  The authors, concerned with the effect of exclusively licensed gene patents on the patient’s rights, propose that patient’s rights should have priority over patent rights when the patent holder interferes with the purpose of patent law – “to promote public good through advancing science and technology.”  The authors state that the rights of the patient should trump the rights of the patent holder if the patent holder does not permit:

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New Database Seeks to Be the Google of Medical Research

Jake Meyer by Jake Meyer

Stephen Friend, a former senior vice president at Merck & Co., and Eric Schadt, the former executive scientific director of a subsidiary of Merck & Co.,  have announced plans to create an open-access online database of medical research called Sage, with the hopes of making it the "Google of biological science."  Sage was designed "to create open access, integrative bionetworks, evolved by contributor scientists, to accelerate the elimination of human disease."  According to Friend, "biology has mostly been archivists building up stacks of data," producing "linear data that set out . . . variations, rather then give us an understanding."  By establishing a forum where researchers can view and post data, Friend hopes to create a dynamic database of clinical, genetic, and other molecular data where researchers can collaborate and develop novel solutions to complex diseases.  It will take time for the project to develop into the global network of scientists Friend imagines; however, he hopes to start by addressing a few core diseases, including metabolic diseases, diabetes, and cancer.

Studies conducted by researchers at Merck's subsidiary, Rosetta, which resulted in at least nine papers published in peer reviewed journals in 2008, serve as the foundational research for Sage.  To help launch the project Merck is donating equipment and software, the pharmaceutical company Whitehouse Station is donating genomic information that doesn't relate to its drug discovery programs, and the Massachusetts General Hospital (affiliated with Harvard Medical School) is donating brain tissue samples.  A 3-5 year "incubation period" is planned for Sage during which it will operate in partnership with only a select few universities (potentially including University of Washington, Yale University, and University of California at San Francisco).  During this period, Sage's governing rules will be tweaked and a tool kit will be created for submission and review of the database.  The development model of Sage is similar to Facebook by making the website available only to select universities with minimal features before expanding to researchers at other universities, and eventually the public. 

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Digging for Buried Treasure in the Patent Landscape

Jake Meyer by Jake Meyer

In this economy you might be looking for a way to make some money on the side.  If you’re an expert in a field or just a good researcher, a new company offers a way to earn a buck and rid the world of a few bad patents in the process.  But before you start pulling in some extra coin, you may need to know a little bit about patents.

Patents can mean big money for their owners because a patent grants a monopoly over an invention for 20 years after the filing of the patent application.  No one else is allowed to make or use the invention.  So if the inventor creates a new mousetrap, no one else can market that mousetrap or a similar one.  To get a patent the invention has to be novel—the public can’t have known about it before you invented it.  If the USPTO finds that your invention is described in the prior art—previous patents, publications, and other documents—or that your invention was known about or used by others, then the USPTO won’t grant you a patent.  Sometimes, however, non-novel patents slip by the USPTO, particularly when the prior art is hard to find.  For example, if a computer programmer has been using a particular program for years, but no one has a published an article about it and no one has filed a patent on it, the patent examiner may erroneously assume that the program is a new invention and grant a patent, which can be used to stop people from using the same computer program they previously used.

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