Gene Sequences are now Patentible in Israel

7 10 2008

The Commissioner of patents has ruled that gene sequences per se. are patentable in Israel. The decision is designed to standardize Israel practice and to conform it to that of other advanced countries.

The gene sequence has to be absolutely novel and so the applicants have been asked to provide in Text form for running through the databases.

Generally patents are for devices having utility and in this case, the Commissioner of Patents is willing to allow exact gene sequences (as a pose to sections or equivalences thereof) provided they are absolutely novel without requiring evidence of usefulness.

There does not appear to be anything in the ruling that indicates that the gene sequences are inventions, and as they seem to be discoveries that are catalogued, there is a fundamental question, even accepting the US decision in State Street Bank, that anything under the sun made by man is patentable, as to why the gene sequence is patentable at all?

Proponents of gene patenting believe that such patents are justified as a reasonable reward for investor risk and the hard labor of the researcher. Opponents of granting gene patents disagree since there is substantial difference between bio-patents and traditional subject matter, because bio-technicians manipulate genes rather then invent them.

Additionally, it has been argued that DNA sequence patents potentially restrict research in particular areas and may inhibit progress in medical research in the treatment of a disease. This argument is part of the reason why, outside of the US, therapeutic treatments are not considered patentable.

Morally objects have also been raised to patenting DNA sequences because such a patent creates a property right in the building blocks of mankind.

The proponents of gene patents believe that the effort involved in locating, characterizing, and determining the role genes play elevate the discovery of their sequences to the status of an invention not merely a discovery. This argument seems weak to me, but my background is physics and materials engineering, not biotech. Hillary climbed Everest because it was there. The effort was not minimized by Tensing possibly arriving first. Scott reached the South Pole for similar reasons and certainly was beaten by Amundsen who certainly exerted less effort as he used dogs rather than man-hauling. None of these explorers claimed to have invented their destinations.

Another argument is that discoveries of this nature are expensive, in terms or time and money and obtaining a patent may be the only way that companies or organizations to protect their investments. So? Maybe a new system is required? Maybe we need to provide compulsory royalties to discoverers. These are still not inventions.

Israel does not allow patents for software per se. Algorithms are not useful per se. and are like thought processes. Business methods are not considered as having a technology character. Should Israel conform to International standards even when there is clearly a lack of consistency, and silly rules based on poor analysis? or are the basic rules wrong?

Maybe the one-size-fits-all patent days are over?

Anyway, the ruling is to be found in Circular MN 64 and holds on all pending and future applications.

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