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April 02, 2013

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Don,

More malarkey from those that may know the science, but not the patent law that goes with that science. As could be expected, this article even cites the Jensen & Murray study which has been thoroughly discredited by Professor Chris Holman. Also, I'm curious about the data support for the statement in this article that "there are over 40,000 patents on DNA molecules." As Professor Chris Holman has shown with Jensen & Murray study, you need to be careful as to what patents actually cover those "DNA molecules."

Kevin,

Agree these oligomer claims are likely invalid if challenged. What happens now? Do many patents with "isolated" nucleic acid claims get re-examined? Lawyers simply advise clients not to worry if these are the only claims reducing freedom to operate with a product or service? Litigation? All the above?

Sorry, last post should have been to Don. Didn't notice it was you at bat today.

BCD

Bob:

I think your paper (Kepler et al.) and the Rosenfeld and Mason paper indicate that a significant number of 15mer sequences occur more than once in the human genome. For example, Rosenfeld and Mason showed that 15mers from the BRCA1 gene could be found in 689 other genes. To the extent that these other sequences were in the prior art (your paper noted that 80% of 713 human mRNAs deposited in 1994 contained at least one of the claimed BRCA1 15mers), this could create an issue with respect to the novelty of the 15mer claims (i.e., claims 5 and 6 of the '282 patent).

Thank you for the comments,

Don

Don,
The previous work made an estimate based on cDNA; we wanted to expand this and look at the actual empirical distribution of k-mers as a patent - all of which we show to be non-specific up to 1000mers.
Also, we used updated patents of DNA that are actually claimed in the language of the claims, specifically to address the Holman article. But, even if you take out 99% of those, you still have enough patents which do claim the sequences that easily match 91% of human genes. It's just not that hard to do with short fragments, and Venter tried this back in the 90s as well. While you may bemoan scientists dipping into the law, we only do it because the laws (in this case, the patents) can sometimes blatantly disregard the science, which only makes our jobs harder. Thanks for the debate.

Chris,
In your paper you provide examples of claims that have roughly the following format:
1. An isolated DNA having the nucleotide sequence [5,000 specific bp]
2. An isolated DNA having at least 15 nucleotides of the DNA of claim 1.

Your problem seems to relate to the second claim, not the first, is that correct?

There's quite a few Ph.D. patent attorneys on this blog, no? It seems odd that they are unwilling to simply come out and say whether any of Myriad's claims are anticipated or not. I can't tell if they are genuinely unconvinced, if they are confused, if they are feigning confusion, if they are simply hiding from facts, or if they are afraid to take a stand.

What's the problem, guys?

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