Booting Up A Synthetic Genome (Updated for typos)

The press is all abuzz over the Venter Institute's paper last week demonstrating a functioning synthetic genome.  Here is the Gibson et al paper in Science, and here are takes from the NYT and The Economist (lede, story).  The Economist story has a figure with the cost and productivity data for gene and oligo synthesis, respectively.  Here also are Jamais Cascio and Oliver Morton, who points to this collection of opinions in Nature.

The nuts and bolts (or bases and methylases?) of the story are this: Gibson et al ordered a whole mess of pieces of relatively short, synthetic DNA from Blue Heron and stitched that DNA together into full length genome for Bug B, which they then transplanted into a related microbial species, Bug A.  The transplanted genome B was shown to be fully functional and to change the species from old to new, from A to B.  Cool.

Yet, my general reaction to this is the same as it was the last time the Venter team claimed they were creating artificial life.  (How many times can one make this claim?)  The assembly and boot-up are really fantastic technical achievements.  (If only we all had the reported $40 million to throw at a project like this.)  But creating life, and the even the claim of creating a "synthetic cell"?  Meh.

(See my earlier posts, "Publication of the Venter Institute's synthetic bacterial chromosome", January 2008, and "Updated Longest Synthetic DNA Plot ", December 2007.)

I am going to agree with my friends at The Economist (see main story) that the announcement is "not unexpected", and disagree strongly that "The announcement is momentous."  DNA is DNA.  We have known that for, oh, a long time now.  Synthetic DNA that is biologically indistinguishable from "natural DNA" is, well, biologically indistinguishable from natural DNA.  This result is at least thirty years old, when synthetic DNA was first used to cause an organism to do something new.  There are plenty of other people saying this in print, so I won't belabor the point; see, for example, the comments in the NYT article.

One less-than-interesting outcome of this paper is that we are once again going to read all about the death of vitalism (see the Nature opinion pieces).  Here are the first two paragraphs from Chapter 4 of my book:

"I must tell you that I can prepare urea without requiring a kidney of an animal, either man or dog." With these words, in 1828 Friedrich Wöhler claimed he had irreversibly changed the world. In a letter to his former teacher Joens Jacob Berzelius, Wöhler wrote that he had witnessed "the great tragedy of science, the slaying of a beautiful hypothesis by an ugly fact." The beautiful idea to which he referred was vitalism, the notion that organic matter, exemplified in this case by urea, was animated and created by a vital force and that it could not be synthesized from inorganic components. The ugly fact was a dish of urea crystals on his laboratory bench, produced by heating inorganic salts. Thus, many textbooks announce, was born the field of synthetic organic chemistry.

As is often the case, however, events were somewhat more complicated than the textbook story. Wöhler had used salts prepared from tannery wastes, which adherents to vitalism claimed contaminated his reaction with a vital component. Wöhler's achievement took many years to permeate the mind-set of the day, and nearly two decades passed before a student of his, Hermann Kolbe, first used the word "synthesis" in a paper to describe a set of reactions that produced acetic acid from its inorganic elements.

Care to guess where the nucleotides came from that went into the Gibson et al synthetic genome?  Probably purified and reprocessed from sugarcane.  Less probably salmon sperm.  In other words, the nucleotides came from living systems, and are thus tainted for those who care about such things.  So much for another nail in the vital coffin.

Somewhat more intriguing will be the debate around whether it is the atoms in the genome that are interesting or instead the information conveyed by the arrangement of those atoms that we should care about.  Clearly, if nothing else this paper demonstrates that the informational code determines species.  This isn't really news to anyone who has thought about it (except, perhaps, to IP lawyers -- see my recent post on the breast cancer gene lawsuit) but it might get a broader range of people thinking more about life as information.  What then, does "creating life" mean?  Creating information?  Creating sequence?  And what sort of design tools do we need to truly control these creations?  Are we just talking about much better computer simulations, or is there more physics to learn, or is it all just too complicated?  Will we be forever chasing away ghosts of vitalism?

That's all I have for deep meaning at the moment.  I've hardly just got off one set of airplanes (New York-DC-LA) and have to get on another for Brazil in the morning. 

I would, however, point out that the recent paper describes what may be a species-specific processing hack.  From the paper:

...Initial attempts toextract the M. mycoides genome from yeast and transplant it into M. capricolum failed. We discovered that the donor and recipient mycoplasmas share a common restriction system. The donor genome was methylated in the native M. mycoides cells and was therefore protected against restriction during the transplantation from a native donor cell. However, the bacterial genomes grown in yeast are unmethylated and so are not protected from the single restriction system of the recipient cell. We were able to overcome this restriction barrier by methylating the donor DNA with purified methylases or crude M. mycoides or M. capricolum extracts, or by simply disrupting the recipient cell's restriction system.

This methylation trick will probably -- probably -- work just fine for other microbes, but I just want to point out that it isn't necessarily generalizable and that the JVCI team didn't demonstrate any such thing.  The team got this one bug working, and who knows what surprises wait in store for the next team working on the next bug.

Since Gibson et al have in fact built an impressive bit of DNA, here is an updated "Longest Synthetic DNA Plot" (here is the previous version with refs.); alas, the one I published just a few months ago in Nature Biotech is already obsolete (hmph, they have evidently now stuck it behind a pay wall).

Thumbnail image for carlson_longest_sDNA_2010.pngA couple of thoughts:  As I noted in DNA Synthesis "Learning Curve": Thoughts on the Future of Building Genes and Organisms (July 2008), it isn't really clear to me that this game can go on for much longer.  Once you hit a MegaBase (1,000,000 bases, or 1 MB) in length, you are basically at a medium-long microbial genome.  Another order of magnitude or so gets you to eukaryotic chromosomes, and why would anyone bother building a contiguous chuck of DNA longer than that?  Eventually you get into all the same problems that the artificial chromosome community has been dealing with for decades -- namely that chromatin structure is complex and nobody really knows how to build something like it from scratch.  There is progress, yes, and as soon as we get a real mammalian artificial chromosome all sorts of interesting therapies should become possible (note to self: dig into the state of the art here -- it has been a few years since I looked into artificial chromosomes).  But with the 1 MB milestone I suspect people will begin to look elsewhere and the typical technology development S-curve kicks in.  Maybe the curve has already started to roll over, as I predicted (sketched in) with the Learning Curve. 

Finally, I have to point out that the ~1000 genes in the synthetic genome are vastly more than anybody knows how to deal with in a design framework.  I doubt very much that the JCVI team, or the team at Synthetic Genomics, will be using this or any other genome in any economically interesting bug any time soon.  As I note in Chapter 8 of Biology is Technology, Jay Keasling's lab and the folks at Amyris are playing with only about 15 genes.  And getting the isoprenoid pathway working (small by the Gibson et al standard but big by the everyone-else standard) took tens of person years and about as much investment (roughly ~$50 million in total by the Gates Foundation and investors) as Venter spent on synthetic DNA alone.  And then is Synthetic Genomics going to start doing metabolic engineering in a microbe that they only just sequenced and about which relatively little is known (at least compared with E. coli, yeast, and other favorite lab animals)?  Or they are going to redo this same genome synthesis project in a bug that is better understood and will serve as a platform or chassis?  Either way, really?  The company has hundreds of millions of dollars in the bank to spend on this sort of thing, but I simply don't understand what the present publication has to do with making any money.

So, in summary: very cool big chuck of synthetic DNA being used to run a cell.  Not artificial life, and neither artificial cell nor synthetic cell.  Probably not going to show up in a product, or be used to make a product, for many years.  If ever.  Confusing from the standpoint of project management, profit, and economic viability.

But I rather hope somebody proves me wrong about that and surprises me soon with something large, synthetic, and valuable.  That way lies truly world changing biological technologies.

Book Talk at Reiter's in Washington DC, May 19

Tomorrow evening, May 19th, I will give a short talk about my recent book Biology is Technology at Reiter's Books  in Washington DC, followed by discussion and refreshments.  Among other issues, I will discuss updated figures for the impact of biotech and bioengineering on the US and world economies, the impact of the recent BRCA 1/2 gene patent decision, garage biotech, biosecurity, and regulation.

I look forward to seeing you there -- please bring hard questions.

Biology is Technology: The Promise, Peril, and New Business of Engineering Life
Robert Carlson
Harvard University Press, 2010
www.biologyistechnology.com

Where:

(Note that Reiter's has recently moved.)
Reiter's Books
1900 G St. NW
Washington DC 20006
www.reiters.com

When:

May 19, 2010
6:30 PM

A Few Biosecurity Notes

  • Last January, the UPMC Center for Biosecurity published "U.S. Government Judgments on the Threat of Biological Weapons: Official Assessments, 2004-2009".  If you are interested in bioterrorism, you should have a look.
  • Also in January, the Belfer Center for Science and International Affairs at Harvard's Kenney School of Government released "Al Qaeda Weapons of Mass Destruction Threat: Hype or Reality?" (PDF) By Rolf Mowatt-Larssen.  The document gathers together open source information regarding Al Qaeda's interest in WMD.  Mowatt-Larssen is formerly the Director of Intelligence and Counterintelligence at the U.S. Department of Energy, and spent 23 years at the CIA.  The introduction sets out the purpose of the document as dispelling the doubts of those skeptical there is a real threat.
  • Former Senate Intelligence Committee chairman Bob Graham recently told the Washington Post that "India and Pakistan, as well as Syria and Israel, may have manufactured biological weapons."  Graham said: "The extent to which they may have done it is classified, but it is a serious threat. ...A couple of weeks in the Middle East has given me a greater sense of urgency."  Graham called out the lack of progress here at home in establishing "a response capability".  In an update to the story, the Post then pointed to a description of a new "biosecurity" bill introduced in the House, which from the article sounds to be all about securing national labs rather than standing up any sort of real biodefense response capability.

Sweet dreams.

A Few Notes on China

  • China Daily recently carried an Op--Ed asserting that "Giant leap" in education spurs nasty slump in academics.  (Oddly, the piece appears to be badged as an article, but the URL suggests it is an opinion piece.)  The piece asserts that "According to the education bureau, the number of university applicants in Beijing this year has decreased by 20%, and Shanghai has failed to meet its recruitment demand for three consecutive years."  Those are numbers I will have to dig into.  Another story from China Daily reports that, due to reduced enrollments and accumulated debt, "Universities face bankruptcy".
  • Slashdot has a brief blurb on how "China's Research Ambitions Hurt By Faked Results".  For those who haven't been following this story, while China has been climbing the world rankings of published scientific papers, so has the number of fraudulent papers.  I have to wonder what the real numbers are, though.  The Slashdot story links to a specific example of 70 crystal structures shown last year to be completely fabricated, but other accounts are mostly "just so" stories.
  • China's economic growth jumped to 11.9% in the first quarter of 2010.  The NYT also reports that Beijing raised fuel prices to help keep inflation in check.  Exports rose 46% in March, year on year, while imports rose 45%.
  • According to the NYT, China's Premier Wen Jiabao recently said that "China would pour money into strategic industries, boosting research and development and infrastructure spending to "capture the economic, scientific and technological high ground." Among the areas he singled out were biomedicine, energy conservation, information technology and high-end manufacturing."
  • Earlier this year, for the first time, Chinese oil imports from Saudi Arabia surpassed US imports.  As a result, China ran a trade deficit in March for the first time in years, and is buying up oil production in Canada.  Re-reporting a story from the China Securities Journal, China Daily asserts the sudden drop in the trade deficit is "a result of China's strive for a trade balance by taking measures to encourage imports and stabilize exports".
  • Here is the full text of China's recently published "Report on the Implementation of the 2009 Plan for National Economic and Social Development and on the 2010 Draft Plan for National Economic and Social Development" (via Xinhua).
  • Xinhua asserts that "China's trade surplus with US misread".  Among other revelations, it is apparently all our fault for refusing to export high tech items to China.
  • China has been blocking release of monetary data to the IMF since 2007, which makes it hard for the international organization to make any judgements about currency manipulation: "China allowed the release of its reports until the monetary fund's executive board decided in June 2007 that reports should pay more attention to currency policies. China has quietly blocked release of reports on its policies ever since, without providing its specific reasons to the I.M.F.

    A person who has seen copies of the most recent report last summer said that the monetary fund staff concluded the renminbi was "substantially undervalued."

    The monetary fund regards a currency as substantially undervalued if it is more than 20 percent below its fair market value."

  • Genetically Modified rice has been given a safety certificate by the Chinese Ministry of Agriculture, but the strain has to clear further hurdles before hitting the shelves.  Here are some interesting numbers: "China now yields around 500 million tons of grain annually. With the population expected to increase to 1.6 billion by 2020, 630 million tons of grain will be needed, experts said."  Wow -- that's a 25% increase in 10 years.
  • China has announced "A big plan to wipe out overcapacity".  According to China Daily, "The China Banking Regulatory Commission, China's watchdog on banks, has asked banks to retain strict controls on loans to industries with high energy consumption, high emissions or overcapacity. For instance, no loans are now allowed for any new projects in six industries with overcapacity and ship making unless these projects have approval from the National Development and Reform Commission, China's top economic planner. The six industries are steel and iron, cement, glass sheet, chemical processing of coal, polysilicon and wind power equipment."  Hmmm...the government of a centrally-planned economy proclaiming a drive for efficiency.  Best of luck with that.

DIYBio and Making at the BBC

This morning's biosecurity update from the Partnership for Global Security carried a mess of links I hadn't seen, including a story at the BBC entitled "Tech Know: Life hacking with 3D printing and DIY DNA kits".  The embedded video has an interesting clip on a printed stainless steel Mobius strip with freely moving rings that can run around the perimeter -- interlinked complex shapes.  Neat.  (Not a new thing in plastics, but I hadn't seen it in metal before.)

Cambridge's James Brown gets the honor of introducing the Beeb's audience to synthetic biology, biobricks, and engineering methods for biological systems.  The 3D-printed DremelFuge gets a photo and a significant mention.  I explicitly pointed to this sort of application of 3D printing in my book, though it is happening even faster than I had imagined.  Shapeways is now printing all sorts of interesting materials, though the resolution of most 3D printers and processes still doesn't make them useful for the sorts of objects I want to print.  That said, there is clear improvement over time.

It will be interesting to see how long it takes before you can print mixed media functional objects, say something like a zero-dead volume, positive displacement membrane pump.  Or better yet an entire pump block.  (Which is usually milled from a piece of stainless steel -- see where this is going?)  That gets you the most annoying bit of kit needed for a DNA synthesizer.  At which point you can forget any regulations limiting access to DNA of any sequence. 

China Buys More of Canada

China Daily is reporting that Sinopec is buying ConocoPhillips' stake in Syncrude for $4.65 billion.  This on top of purchases last year by Sinopec of a piece of Total's oil sands project, and by PetroChina of the Athabasca Oil Sands Corp.

This is interesting in light of last month's Chinese trade deficit of ~$7.2 billion (Xinhua), attributed to the cost of commodity imports (including oil).  A report late last month put Chinese petroleum use growth at about 5% for the next five years.  More deficits to come, perhaps.

Life Technologies Buys GeneART

Life Technologies today bought 58% of synthetic DNA provider GeneART, with a public tender planned for shares outstanding (Yahoo Finance, GeneART Press Release).  Previously, before changing its name, Invitrogen entered into a strategic agreement to buy the exclusive worldwide rights to distribute Blue Heron Biotechnologies gene synthesis services.

What should we make of this?

First, Life is led by Gregory Lucier, who used to be way high up at GE and is a former protege of Jack Welch.  In my observation, and in my experience, Life is trying to the be the GE of biology.  What does that mean?  GE is obviously a conglomerate, and it operates not so much as a maker and seller of things but as a finance operation that seeks growth through return on capital.  As such, GE buys other companies aggressively -- this is, vastly oversimplified, the Jack Welch strategy.  Life is operating the same way.  The company is aggressively acquiring biotech companies of all sizes. The web was full of rumors earlier in 2010 that GE, seeing something it liked and a familiar strategy, was trying to buy Life Tech.  Who knows -- that may be real and may still happen.  It would be another interesting indication of a certain kind of maturity in the market for biological technologies.

Second, Life obviously sells lots of cloning reagents -- a market that is threatened by synthesis -- so the move could be somewhat defensive in nature.  Life is getting reputation, market share, and expertise in an area that they do not yet dominate.

Third, while GeneART is big, they are a European shop paying German wages to a bunch of people running around with plates and pipetters.  GeneART gets some cash and a big marketing arm, and Life gets ... hummm ... an operation that may have difficulty competing with Chinese labor (Genescript) and automation (Blue Heron).  Presumably, Life looked at the balance sheet and the marketing forecasts and decided the deal makes sense.  But it might be a complex calculation involving not just return on capital, but also access to IP, expertise, and factors that nobody outside Life can do more than guess at, like balancing sales of cloning reagents against sales of synthetic genes.

Now, what might be the implications for the synthetic biology community?  Probably not much.  Prices for synthetic DNA continue to fall.  The $.39 per base price established last autumn as a "special" is now, no surprise, the industry standard.  We will probably see additional consolidation and shifting around as margins get squeezed.  The industry is expecting prices to be at $.05 to $.15 per base within 5 years.  Though even within the same conversation you might hear $.10-$.25 per base, thereby managing consumer expectations, which makes me wonder if people are starting to quail a bit at the exponential and its implications for their business.  You will still have the option to pay more for rush jobs or for genes that are tricky to synthesize.

As I have observed previously (most recently in Nature Biotechnology, here), the maximum profit margin on synthetic genes is evaporating exponentially.  That is not hyperbole, but rather a quantitative observation based on market prices over more than ten years; it is data.  That said, even as prices fall it will still be possible for some companies to increase their revenues as competitors leave the market or go out of business.  But I would be surprised if the market dynamics that enabled Intel to exploit Moore's Law for many decades reemerged in synthetic genes.  Intel knew it could ship exponentially more transistors every quarter -- which meant it could rapidly grow even in the face of falling prices -- but I do not have any evidence that the total market for synthetic genes is expanding much faster than the price is falling.  Conversations with industry executives lead me to believe the total dollar value in the market is continuing to rise, if somewhat slowly.  The rate of increase is hard to pin down, however, given the hiccup that was 2009.  This year's volume and revenues should be bigger, but it isn't clear that one should attribute this to more than the broader economic recovery.

All in all, this seems like business as usual for an industry that is experiencing a rapid transition to commodity status while simultaneously suffering from globalization and lowered barriers to entry.  It probably isn't so different in overall impact from the demise of Codon Devices.  This is just another step towards maturity in an area that will have much more impact on our lives in the future than it has thus far.

"National Strategy for Countering Biological Threats"

I recently had cause to re-read the National Strategy for Countering Biological Threats (Full PDF), released last fall by the National Security Council and signed by the President. I think there is a lot to like, and it demonstrates a welcome change in the mindset I encounter in Washington DC.

When the document came out, there was just a little bit of coverage in the press. Notably, Wired's Threat Level, which usually does a commendable job on security issues, gave the document a haphazard swipe, asserting that "Obama's Biodefense Strategy is a Lot Like Bush's".  As described in that post, various commentators were unhappy with the language that Under Secretary of State Ellen Tauscher used when announcing the Strategy at a BWC meeting in Geneva. According to Threat Level, "Sources tell this reporter that the National Security Council had some Bush administration holdovers in charge of editing the National Strategy and preparing Ms. Tauscher's script, and these individuals basically bulldozed the final draft through Defense and State officials with very little interagency input and with a very short suspense." Threat Level also asserts that "Most are disappointed in the language, which doesn't appear to be significantly different than the previous administration." It is unclear who "Most" are.

In contrast to all of this, in my view the Strategy is a clear departure from the muddled thinking that dominated earlier discussions. By muddled, I mean security discussions and policy that, paraphrasing just a little, went like this: "Biology Bad! Hacking Bad! Must Contain!" 

The new National Strategy document takes a very different line. Sources tell this reporter, if you will, that the document resulted from a careful review that involved multiple agencies, over many months, with an aim to develop the future biosecurity strategy of the United States in a realistic context of rapidly spreading infectious diseases and international technological proliferation driven by economic and technical needs. To wit, here are the first two paragraphs from the first page (emphasis added, of course):

We are experiencing an unparalleled period of advancement and innovation in the life sciences globally that continues to transform our way of life. Whether augmenting our ability to provide health care and protect the environment, or expanding our capacity for energy and agricultural production towards global sustainability, continued research and development in the life sciences is essential to a brighter future for all people.

The beneficial nature of life science research is reflected in the widespread manner in which it occurs. From cutting-edge academic institutes, to industrial research centers, to private laboratories in base­ments and garages, progress is increasingly driven by innovation and open access to the insights and materials needed to advance individual initiatives.

Recall that this document carries the signature of the President of the United States.  I'll pause to let that sink in for a moment.

And now to drive home the point: the new Strategy for Countering Biological Threats explicitly points to garage biotech innovation and open access as crucial components of our physical and economic security. I will note that this is a definite change in perspective, and one that has not fully permeated all levels of the Federal bureaucracy and contractor-aucracy. Recently, during a conversation about locked doors, buddy systems, security cameras, and armed guards, I found myself reminding a room full of biosecurity professionals of the phrase emphasized above. I also found myself reminding them -- with sincere apologies to all who might take offense -- that not all the brains, not all the money, and not all the ideas in the United States are found within Beltway. Fortunately, the assembled great minds took this as intended and some laughter ensued, because they realized this was the point of including garage labs in the National Strategy, even if not everyone is comfortable with it. And there are definitely very influential people who are not comfortable with it. But, hey, the President signed it (forgive me, did I mention that part already?), so everyone is on board, right?

Anyway, I think the new National Strategy is a big step forward in that it also acknowledges that improving public health infrastructure and countering infectious diseases are explicitly part of countering artificial threats. Additionally, the Strategy is clear on the need to establish networks that both promulgate behavioral norms and that help disseminate information. And the new document clearly recognizes that these are international challenges (p.3):

Our Strategy is targeted to reduce biological threats by: (1) improving global access to the life sciences to combat infectious disease regardless of its cause; (2) establishing and reinforcing norms against the misuse of the life sciences; and (3) instituting a suite of coordinated activities that collectively will help influence, identify, inhibit, and/or interdict those who seek to misuse the life sciences.

...This Strategy reflects the fact that the challenges presented by biological threats cannot be addressed by the Federal Government alone, and that planning and participation must include the full range of domestic and international partners.

Norms, open biology, better technology, better public health infrastructure, and better intelligence: all are themes I have been pushing for a decade now. So, 'nuff said on those points, I suppose.

Implementation is, of course, another matter entirely. The Strategy leaves much up to federal, state, and local agencies, not all of whom have the funding, expertise, or inclination to follow along. I don't have much to say about that part of the Strategy, for now. But I am definitely not disappointed with the rest of it. It is, you might say, the least bad thing I have read out of DC in a long time.

Big Gene Patent (Busting) News???

Well now, isn't this an interesting development.  As covered by many news outlets (NYT, Wired, Genomeweb), US District Court Judge Robert Sweet has invalidated several US patents, sometimes referred to as the "BRCA1/2 patents", held by the University of Utah and Myriad Genetics.  From Judge Sweet's decision: "Products of nature do not constitute patentable subject matter absent achange that results in the creation of a fundamentally new product."  Judge Sweet's decision is here (PDF) via Genomics Law Report.  Here is the ACLU's take.

Here is a brief summary of what follows: The ruling is remarkable.  Various commentators and reporters remark upon it.  They get confused.  I try to clarify.  Then we get to a truly revolutionary part of the decision: it's about science!  And a little bit about law.  Finally: so what if a few patents are invalidated?
 

Didn't See That Coming.  But I Can't Complain.

Last month, I noted that I was skeptical that the ACLU and other plaintiffs would be so successful in one go.  So I am surprised, but I am certainly not disappointed.  But I am not surprised, while being somewhat disappointed, that the coverage of the decision is so confused and confusing.  This confusion arises, I suspect, because the wording of Judge Sweet's decision is not entirely straightforward in places, and this has led to analyses that are insufficiently careful.  More on these points below.

DISCLAIMER: Please recall in what follows that I am but a humble physicist by training (oh yes, yes, we're all very humble), not a lawyer.  But I have written some stuff about patents on genes, and at least a few people (some of whom are IP law lawyers) think my analysis doesn't suck a lot.

First, over at Genomics Law Report (GLR), John Conley and Dan Vorhaus have a great analysis with a nice title: "Pigs Fly: Federal Court Invalidates Myriad's Patent Claims".  I won't bother to repeat their discussion.  If you are interested in this issue, please read that post as well as Dan Vorhaus' initial post analyzing the decision.  In particular, the reader might want to attend closely Vorhaus and Conley's observations about the potential for appeals, the likelihood of success in that endeavor, and the applicability of the ruling in other jurisdictions.

The short summary of what's transpired so far in the case is that Judge Sweet has invalidated a small number of claims, in a summary judgement ruling that so far applies only in the Southern District of New York.  Assertions that this is the end of the world for companies that hold gene patents are rather overblown.

There's Too Much Confusion, But Here is Some Relief

But now onto some of the confusing bits alluded to above.  The confusion starts, surprisingly, at GLR.  Here are Conely and Vorhaus:  "In the broader policy debate surrounding gene and biotechnology patents, however, this decision is the latest, unmistakable shot across the bow of gene patent holders, particularly those such as Myriad Genetics that have developed businesses around patent-protected genetic tests supported by exclusive rights in underlying gene patents."  Hummm...  Maybe not so much, actually.  Let me get straight to the point: there is a rather substantial difference between a "gene patent" that claims naturally occurring sequences and one that claims sequences that are not natural. 

Here is one way to think about the issues under discussion: in my one hand, I have a piece of isolated DNA that is identical in sequence to one in your body.  It is the same genetic sequence, so it carries the same information.  Indeed, for it to be useful in a test tube for the purposes of diagnosis, it must have both the same information content and the same function as the sequence in your body.  In fact, it only works as a diagnostic tool because it is the same as what is in your body.  As I noted in my earlier post, this is sort of the opposite of invention, and I have never understood why natural genes can be patented.  (Note: Judge Sweet hits this point quite squarely, but not until p.124 of his ruling.)  In my other hand, I have a piece of isolated DNA that is solely the result of human manipulation -- "human ingenuity" -- consisting of a sequence that does not exist in nature.  Both pieces of DNA are isolated, but they derive from very different sources, and are derived by very different means. Unfortunately, everybody discussing the present decision, including Judge Sweet in the early pages of his decision, seems to be a tad careless about the distinction, which leads many people down a rabbit hole.  (There is an extended discussion of the definition of "isolated DNA" and of the BRCA1/2 genes on p.90-92.)

Here is where it starts: Judge Sweet sets up his decision in the first couple of pages focusing specifically on the BRCA1/2 genes, and slightly more generally on isolated human genes: "Are isolated human genes and the comparison of their sequences patentable?" (p.2)  He continues: "Two complicated areas of science and law are involved: molecular biology and patent law.  The task is to seek the governing principles in each and to determine the essential elements of the claimed biological compositions and processes and their relationships to the laws of nature."

This sounds great.  Judge Sweet is clearly referring specifically to certain human gene sequences named in the patents in question.  Alas, on the next page he switches his language to address the specific assertions of the plaintiffs that ""isolated DNA" containing human BRCA1/2 sequences" are not patentable.  The basic contention here is that because the isolated DNA as described in the patents does the same thing inside the body as outside the body -- it is an information storage medium -- there is no difference between the two forms of DNA and therefore the isolated DNA in question cannot be patented.  Judge Sweet concludes (p.4):

DNA represents the physical embodiment of biological information, distinct in its essential characteristics from any other chemical found in nature. It is concluded that DNA's existence in an 'isolated' form alters neither this fundamental quality as it exists in the body not the information it encodes.  Therefore, the patents at issue directed to "isolated DNA" containing sequences found in nature are unsustainable as a matter of law and are deemed unpatentable subject matter.

The judge thereby switches within a couple of paragraphs very seamlessly from language referring only to human genes to language referring seemingly to all "isolated DNA".  It takes another 100 pages to get to a true clarification, and I'll bet very few people have read that far, or followed all the byways and cross-references (p.100): "...The issue presented by the instant motions with respect to the composition claims is whether or not claims directed to isolated DNA containing naturally-occurring human sequences [emph added] fall within the products nature exception.  ...It is concluded that the composition claims-in-suit are excepted."

In other words, Judge Sweet very specifically ruled that the claims on isolated DNA containing naturally occurring sequences are not valid.  Even more specifically, the ruling only applies to the motion in question by the plaintiffs, namely to invalidate the patents on BRCA1/2 held by Myriad et al.  Judge Sweet pointedly cites Diamond vs. Chakrabarty (p.109) -- a case that affirmed the patentability of "genetically engineered" organisms -- in limiting his ruling to the patentability of naturally occurring genes.  The ruling has no applicability outside that subject matter, and therefore has little applicability to, for example, much of anything that might come out of synthetic biology (unless you are talking about a synthetic DNA version of a naturally occurring gene).  Nor, for that matter, does the ruling have any say about any bit of DNA altered to be different from a natural sequence.  Which means that the ruling has very little to do with most patents on DNA, and therefore has very little to do with most of the industry surrounding those patents -- more on this below.

(Side note, as I read through the decision: Myriad's lawyers didn't do themselves any favors by making generally unpersuasive assertions aimed as broadside attacks against the plaintiffs' arguments.  As noted in my previous post on this case "Whither Genome Patents?", the defendants' assertions that patents serve as necessary incentives for scientific research are complete bunk.  Defense attorney Brian Poissant previously argued that "women would not even know they had BRCA gene if it weren't discovered" under a system that incentivizes patents.  I say again, as calmly as I can, bull pucky.  For example, see the publicly funded Human Genome Project.  See also the fact that BRCA2 was sequenced first in academic labs rather than by Myriad, who somehow managed to patent it anyway.  See also the many  BRCA1/2 assays independently developed in academia, the use of which Myriad repeatedly quashed through cease-and-desist letters, as recounted in detail in the decision.  But here is Judge Sweet himself (p.76): "According to Myriad, its policy and practice has been and still is to allow scientists to conduct research studies on BRCA 1 and BRCA 2 freely, the result of which has been the publication of [over 8600 papers] representing the work of over 18,000 scientists."  (It wasn't clear to me whether Myriad's legal team itself provided these numbers -- but if they did: bad legal tactics, fellas.)  In other words, 18,000 scientists have managed to produce a substantial body of work without any promise whatsoever of remuneration based on a patent for BRCA1/2.  Unless, of course, you count keeping your job through the promise of not being sued by Myriad.)  

It's Science!  And Science Always Wins -- Eventually, But May be Delayed By Appeals.

There is another very interesting angle to Judge Sweet's decision.  Andrew Pollack, writing in the New York Times, suggests that the most revolutionary part of the decision is where Judge Sweet recognizes that DNA carries information.  Pollack quotes Rebecca Eisenberg, a law professor at the University of Michigan: "There isn't a whole lot of doctrinal support" for considering DNA as information rather than as a chemical.  That, for me, is a truly eye opening perspective.  Not because I didn't know about it before -- unfortunately, that view is all too prevalent among IP lawyers -- but rather because it is being defended and suggested as a possible grounds for appeal.  True, it may be precedent, but that does not mean it is good precedent.

Here's the thing: There may not be much "doctrinal support" for considering DNA as information, but there is a rather overwhelming amount of scientific and technical support for considering DNA as information rather than as a chemical, say starting with the vast majority of molecular biology and biochemistry papers published in Science, Nature, Cell, PNAS, and any other relevant journal you can think of.  For all of the last six decades, no less.  Oh, and then all those silly textbooks.  The genetics and molecular biology ones, obviously; not the law textbooks.

Judge Sweet, in my humble opinion, already smacked this one out of the park on p.4: "The facts relating to molecular biology are fundamental to the patents at issue and to the conclusions reached.  Consequently, in the findings which follow, the discussion of molecular biology precedes the facts concerning the development, application, and description of the patents."  (Whoa there!  Science and reason trump the law of man!  Or science and reason trump the law of lawyers?  Damn, now that is a novel legal theory.  And a welcome one.  Don't tell Sen. James Inhofe.) 

Unfortunately, Pollack misses this angle, and promulgates further the confusion that Judge Sweet's ruling spells doom for the biotech industry: "Some biotechnology investors and executives say that lack of patent protection for DNA could diminish investment in the field and remove incentives for companies to develop tests."  Never mind that, as described above, Judge Sweet's ruling applies only to patents on naturally occurring genes, which should ameliorate the concerns of most of the "some biotechnology investors and executives".  It is nonetheless true that diagnostics companies that rely on patents claiming naturally occurring sequences may have to reevaluate their business plans.  (For instance, they may want to be especially careful in issuing cease-and-desist letters, lest the ACLU and company get busy again.)  And it may be true that this small fraction of biotech businesses may have difficulty raising capital -- but time will tell.  If it turns out that development of new diagnostic assays lags as a result of more patents on human genes being invalidated, then we will have something real to talk about.  We might consider developing public policy around alternate incentives.  Until there is a demonstrated concern, however, it isn't clear to me that we should be so concerned about the fate of private investors who gambled on patents whose validity has long been questioned.

What Is The Real Impact Going To Be? 

To reiterate the numbers from my earlier post: of the roughtly 2% of US GDP that is derived from biotech, at a rough guess I would put only 1% of the total (so .01% of US GDP) in the molecular diagnostics category that depends explicitly on excluding other uses of patented human genes.  A few billion dollars a year, in other words, might be at risk.  But somebody is going to do the tests, and Judge Sweet's decision lists a variety of tests that cost about 1/3 of Myriad's; that is, before Myriad shut them down with cease-and-desist letters.  If you eliminate those patents, we might have to come up with some other way to incentivize the development and testing of assays.  Prizes come to mind as a fine thing to try.  They work.  Academics and garagistas will be happy to compete for those prizes, I am sure.

But the rest of the biotech industry shouldn't be concerned about this ruling, frankly.  They might even celebrate the fact that they now have access, potentially, to a whole bunch more genes that are naturally occurring.  Not just in humans, mind you, but any organism.  This opens up a rather substantial toolbox for anybody interested in using biological technologies derived from viruses, bacteria, plants, etc.  If it holds up over the long run, Judge Sweet's decision should accelerate innovation.  That is definitely a good thing.