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Biotech / Medical : Incyte (INCY) -- Ignore unavailable to you. Want to Upgrade?

To: A.J. Mullen who wrote (928)	3/22/1999 11:08:00 AM
From: RCMac	Read Replies (1) \| Respond to of 3202

>>My concern with patentability is whether the courts might hold that, for a patent to be valid, there must be some description of the function. What's going to happen when a team that has elucidated the gene & defect responsible for a disease discovers INCYTE has already patented a piece of DNA that intersects "their" gene?<< A.J., In hurried and partial answer to your questions: Re description of function, here two excerpts from the Science article "The Patenting of DNA" (whose author is the Director, Biotechnology Examination, of the PTO, i.e., the head of the section of the PTO that examines INCY's patent applications and decides whether to issued the requested patent): sciencemag.org "In applying existing patent law to DNA sequence inventions, a first area of concern is whether such inventions constitute patentable subject matter. As DNA sequences are typically isolated and purified manufactures or compositions of matter under U.S. law; in other words, products of human ingenuity "having a distinctive name, character, [and] use" (6) (see Figure), they are patentable subject matter in the United States. In order for DNA sequences to be distinguished from their naturally occurring counterparts, which cannot be patented, the patent application must state that the invention has been purified or isolated or is part of a recombinant molecule or is now part of a vector. . . . . . . . "In fact, it is common for the patentability of DNA elements to hinge on whether sufficient information has been given to enable at least one credible or specific utility. Examples of potentially non-enabled utilities for a DNA sequence fragment include its use to locate disease-associated genes when the disease has no known genetic origin; as an antisense reagent when the corresponding protein to be suppressed is unknown; as a triplex probe to inhibit expression of a protein when the protein and its function are unknown; and to locate and identify genes of unknown utility." Re intersecting patents, see the interesting concept of "anticommons" used in the other Science article I linked sciencemag.org , and the criticism in the responses to both articles. My own sense is that overlapping patents are likely to be cross-licensed by the patent holders in most cases [Rocketman has said this a number of times on this thread, including his post #930], except where egos or other noncommercial considerations prevent people from reaching reasonable agreement [as Rman suggests may be the case with AFFX's management]. The structure of this dispute in the gene sequencing area, and its possible bad outcome - various parties won't license their overlapping patents, so that no one can use the IP - are the major focus of the "Anticommons" article. -- RCM