I like to see signs of emerging sanity in the patent world. Possibly that will head us back to the sanity of killing lots and lots (hopefully all) software patents.
Would this company have made the breast cancer detection procedure that they had a patent on if they did not have the ability to protect it with a patent?
In the software world, the case against patents is very strong. In biotech R&D costs can be in the millions or billions of dollars. It's a mistake to reflexively apply the hacker's justified aversion to patents to other fields.
A study conducted by Thomas Kepler, Colin Crossman, and Robert Cook-Deegan of Duke University found the patent in question "surprisingly broad" and that "if enforced [the patent] would have substantial implications for medical practice and scientific research" [1]. As a result the patent ended up stifling innovation, violating the legal justification for patents.
The arguments you provide may justify the existence of some patents, but certainly not this one.
> Would this company have made the breast cancer detection procedure that they had a patent on if they did not have the ability to protect it with a patent?
According to my reading of the case, the company didn't invent a breast cancer procedure. Instead, they found a gene that has some involvement in breast cancer and tried to claim suppressing said gene. They lost because their patent didn't disclose or claim anything relevant to suppressing said gene.
IFRC, the judge said that they didn't invent anything, which they pretty much conceded. Since you can't patent discoveries, only uses of discoveries to do something, they lost.
It's a mistake to reflexively apply the hacker's justified aversion to patents to other fields.
It may very well be true.
It is common to argue that intellectual property in the form of copyright and patent is necessary for the innovation and creation of ideas and inventions such as machines, drugs, computer software, books, music, literature and movies. In fact intellectual property is a government grant of a costly and dangerous private monopoly over ideas. We show through theory and example that intellectual monopoly is not necessary for innovation and as a practical matter is damaging to growth, prosperity and liberty. -- Michele Boldrin and David K. Levine in Against Intellectual Monopoly.
Against Intellectual Monopoly is a book that made the case against patents and copyrights in all of its form.
You can read the entire book for free at this website:
I'm sympathetic to Boldrin's ideas, I just thought it an important objection to raise in the crowds that cheer for the demise of all intellectual property.
You are not adding up the opportunities missed. Who would have done work, but fears to? Who, if the patent were enforced, would have been unable to advance the state of the art?
This company may not have. But society in general would have. http://bit.ly/UX90n is a good econtalk which talks about patents, competition and innovation and argues that patents are detrimental to society.
Software patents might be brought down this way too. Koza used genetic programming to build circuits that were patented (butterfly filter IIRC).
I wish the software patent nightmare would turn itself inside out and morph into a contributors authoring papers (not patents) and submitting them to relevant journals. The result might be more alternative approaches, prior examples that perform better, etc. I think it would change the industry and the products it builds. Just a dream maybe.
Disclaimers: Am not in agriculture. Am not a lawyer. Am in human genetics.
Monsanto does things like this: (1) Take a plant that has agricultural value. (2) Add a pesticide-resistance gene to that plant. (3) Patent the seeds. (4) Sell at high price.
Given my (admittedly superficial) understanding of their practices, I do not think that most of their products would be particularly susceptible to this ruling. It is a bit murky because they may use gene patents to protect their special seeds, in which case one could imagine new 'generic competition' of sorts if they lose their gene patents but not their seed patents.
> Depending on the judge, invalidating gene patents isn't that far away from invalidating the whole concept of software patents.
How so? The judge said "you can't patent discoveries". However, you can patent the use of discoveries to do something useful. That's why they tried to claim "if you suppress this gene, good things happen". The problem is that they didn't say anything useful about how to suppress said gene.
You can't patent chemistry or chemical compounds. However, you can patent the use of a chemical compound to do something specific which you actually claim. For example, the Viagra patent probably doesn't cover that compound's use in a floor wax.
Similarly, you can't patent a theorem, but you can patent the use of a theorem to do something specific.
> In the mean time - yay! for the judge that said that the biological structures and processes that make me alive aren't owned by anybody.
However, certain things done with some of those structures are very much patentable.
With people starting to biohack in their own backyard, I am unsure that the big corporations will be able to enforce their patents, thus their monopoly in the future.
All the judge did was to make corporations not to waste money going after biohackers in the not too distant future and force them to focus on generating valuable innovation.
So it might turn out to be a good thing for the would-be evil monopolists.
Science 14 October 2005:
Vol. 310. no. 5746, pp. 239 - 240
DOI: 10.1126/science.1120014
INTELLECTUAL PROPERTY:
Intellectual Property Landscape of the Human Genome
Kyle Jensen and Fiona Murray
Summary:
The impact of gene patents on downstream research and innovation are unknown, in part because of a lack of empirical data on the extent and nature of gene patenting. In this Policy Forum, the authors show that 20% of human gene DNA sequences are patented and that some genes are patented as many as 20 times. Unsurprisingly, genes associated with health and disease are more patented than the genome at large. The intellectual property rights for some genes can become highly fragmented between many owners, which suggests that downstream innovators may face considerable costs to gain access to gene-oriented technologies.
The thing I have always wondered is, with Trademarks, in order to continue to stake a claim to them a company must vigorously defend the claim. So for instance, if trademark comes into wide use as a verb and the company that owns it fails to defend the trademark they risk losing the right to it.
With these patents on genes, technically anyone who procreates is infringing on the patent by copying the material without consent so when a company fails to prosecute parents for for patent infringement are they setting themselves up to lose that patent?
Another invalid area is that of Monsanto who have bought up many seed companies, then proceeded to patent the seeds as their own. There is a rule that ideas and patentable concepts must not be public knowledge, or known about by others, prior to being patented. That's why you have to ensure no one knows about your idea, before you patent it, those that do should be under a ND.
