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Patenting ideas | 269 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Corrections Thread Here...
Authored by: lnuss on Monday, April 15 2013 @ 07:36 AM EDT
...

---
Larry N.

[ Reply to This | # ]

Off Topic Thread Here...
Authored by: lnuss on Monday, April 15 2013 @ 07:38 AM EDT
...

---
Larry N.

[ Reply to This | # ]

Newspicks Thread Here...
Authored by: lnuss on Monday, April 15 2013 @ 07:38 AM EDT
...

---
Larry N.

[ Reply to This | # ]

Today is Human Genome Day at the US Supreme Court ~pj
Authored by: Hygrocybe on Monday, April 15 2013 @ 07:38 AM EDT
It is over three years since I have commented on Groklaw,
but this is one item on which I want to say something. I am
a biological scientist in Australia and it repels me to the
point of utter disgust that American courts have allowed
patenting of the human genome (or other naturally occurring
genomes) to occur.

I support PJ entirely in her comments. I am a person who
managed to beat colon cancer 13 years ago and any person,
firm, company or entity that stands in the way of a cancer
sufferer's recovery because of pure greed does not deserve
their status in human society.

I am not a religious person either, but in this one case, I
do pray that common sense will prevail in the American
Justice System and that the patents on genes will be removed
from the statute books so that innovation, justice and due
regard for the health of patients will prevail over a
despicable firm's desire to ransom life in a sick person.

Yes......I'm angry. Thanks for listening.

---
Blackbutt, Australia

[ Reply to This | # ]

COMES Thread Here...
Authored by: lnuss on Monday, April 15 2013 @ 07:40 AM EDT
...

---
Larry N.

[ Reply to This | # ]

Today is Human Genome Day at the US Supreme Court ~pj
Authored by: hairbear on Monday, April 15 2013 @ 08:20 AM EDT
Money, money, money ... it's all about money these days. Where would we be if
the pioneers of medicine had the same attitude ... hey, I'm not going to bother
with this because I can't make money out of it. Are Myriad really saying that
medical research will grind to a halt if gene patenting isn't allowed ?.

Whatever happened to research for the benefit society ?. Ah !! ... I suspect
that it's this kind of research that Myriad wants to stifle, after all, this
kind of research can benefit mankind without lining the pockets of the already
rich through the broken patent system.

hairbear


[ Reply to This | # ]

Today is Human Genome Day at the US Supreme Court ~pj
Authored by: Anonymous on Monday, April 15 2013 @ 09:41 AM EDT
I personally think that the problem is the over encompassing
scope of patents. For instance, a specific test looking for
certain genes in my opinion would be patentable material (and
of course if someone else figures out an improved test, that
new test would also be patentable). But the concept of
patenting the gene itself and claiming the rights to all
activities that have anything to do with that gene? That's
pure greedy insanity.

[ Reply to This | # ]

Does any one know which patents are at issue?
Authored by: Anonymous on Monday, April 15 2013 @ 09:44 AM EDT
All I can find are the last 3 digits of the patents being referred to. What are
the whole patent numbers please?

[ Reply to This | # ]

Liability?
Authored by: wowbagger on Monday, April 15 2013 @ 09:53 AM EDT
So, if they own these genes, are they liable for the damages these genes cause?
Can they be sued by somebody who is positive for these genes and has cancer,
insisting that the company remove the faulty genes?

After all, if somebody owns a car, and that car is parked on my property, I can
demand the owner remove it, pay a storage fee, or impound the vehicle.

Perhaps that would be the way to discourage these companies from claiming
"ownership" of these genes.

[ Reply to This | # ]

MPEG LA biotech
Authored by: Anonymous on Monday, April 15 2013 @ 10:07 AM EDT
I'm not sure how they think they're an authority on how
patents affect the biotechnology industry, but it's great to
see that MPEG LA has filed an amicus brief in favour of
patents on "isolated" DNA molecules.

My interpretation of the summary... They say keep the patents
because these inventions should be "rewarded" by the people
of USA; any problems that result from the monopoly can be
solved by bundling together all of the patents and licensing
them just like MPEG LA does.

[ Reply to This | # ]

Might a patent license be required to have children?
Authored by: attila_the_pun on Monday, April 15 2013 @ 10:10 AM EDT
So, if Monsanto wins in Monsanto vs Bowman and a license is needed for
self-replicating genes (i.e. genes in live organisms) and Myriad are allowed to
have patents on human genes, the logical consequence is that any man/woman with
the patented genes requires a patent license from Myriad to have children?

[ Reply to This | # ]

Respondent briefs
Authored by: macliam on Monday, April 15 2013 @ 10:23 AM EDT

I have read most of the briefs over the past few months. In relation to the respondent's briefs (i.e., those for Myriad Genetics), and those by amici supporting the respondent, it may help by asking oneself “Is this really making a case that will advance their cause at the Supreme Court?”. (To me, the answer is generally a resounding No!.) It soon becomes clear that the Intellectual Property Lobby really do believe that everything is patentable for which they can claim a scintilla of ‘usefulness’. In particular, it becomes clear that they believe that it is sufficient to ‘isolate’ some product of nature (DNA, protein or whatever) without meaningfully transforming it, think up some ‘use’ for it (irrespective of how ordinary, routine and uninventive the use), and then they are entitled to a No Trespassing! notice, courtesy of the PTO. In other words, they pay lip service to the usual exceptions (laws of nature, natural phenomena and products, and abstract ideas), but claim that the exceptions only apply to useless subject matter, and to natural products in their natural environment. And though my perspective is admittedly biassed in favour of the petitioners, to me the respondent's legal arguments seem completely threadbare.

The Lawyers writing those briefs for or on behalf of the respondent have no conception of the nature of scientific discovery, or of the virtues and importance of open collaboration between scientists. Their claims that the normal processes of scientific discovery (directed towards goals identified in advance, and designed to identify pre-existing properties of pre-existing natural phenomena and products) are inventive are ludicrous. Of course inventions may arise legitimately as fruits of scientific investigation and discovery. But it seems clear to me that the only things that Myriad Genetics actually ‘invented’ were patent claims—and I don't see how patent claims, considered as intellectual creations, fall within any of the recognized categories of patentable subject matter.

The petitioners have a brilliant reply brief: I read it twice this morning. Great work by ACLU and PubPat! And the amici briefs by scientists such as Profs. James D. Watson and Eric S. Lander are well worth reading, as are those by Prof. Eileen M. Kane and the ‘Fifteen Law Professors in support of Petitioners.

And besides the importance of the issue before the court, the precedents set by this case could be of particular importance if and when a computer-related comes properly before the Supreme Court.

[ Reply to This | # ]

Is a law of nature or product of nature discovered when a cure or treatment is discovered?
Authored by: Anonymous on Monday, April 15 2013 @ 10:50 AM EDT
If a drug company discovers a chemical that relieves headaches or reduces plaque
build up on arteries, is that chemical a product of nature or representative of
an patentable law of nature?


What if 10 years later, someone trips over the same chemical while hiking
through the Amazon Rainforest?

Does the patent become invalid then?

[ Reply to This | # ]

Schedule?
Authored by: Anonymous on Monday, April 15 2013 @ 12:01 PM EDT
Where can I find the schedule for today's hearings? Does Groklaw expect to have
an observer present for any of it?

[ Reply to This | # ]

  • Schedule? - Authored by: PJ on Monday, April 15 2013 @ 01:53 PM EDT
  • Schedule? - Authored by: PJ on Monday, April 15 2013 @ 01:56 PM EDT
Your DNA is yours.
Authored by: complex_number on Monday, April 15 2013 @ 12:04 PM EDT
You were born with it.

It does not take too much imagination to get to the point where ALL newborn
babies will have their DNA examined at birth and the parents will have to pay
DNA license fees to avoid having their son/daughter taken away by the patent
owners for Patent Violations.

I was born with it and it is mine. I have a clear case of Prior Art. I didn't
ask to be born with parts of my body breaking your Patents.

Sorry, but that is how I feel. The rules of this forum prevent me from saying
what I really mean.

Perhaps I could file suit against them for owning bad bits of DNA? I've just
been diagnosed with a second and different form of Leukaemia in 5 years. If they
own it, then they can fix it! Perhaps something like that might get them to
think again?


---
Ubuntu & 'apt-get' are not the answer to Life, The Universe & Everything which
is of course, "42" or is it 1.618?

[ Reply to This | # ]

Biggest nonsense in the world.
Authored by: OpenSourceFTW on Monday, April 15 2013 @ 01:10 PM EDT
Gene patents are worse than software patents, and that's saying something.

They need to be thrown out en mass, wholesale, immediately, posthaste, NOW.

If 40% of Human DNA is patented, how will anybody test any DNA?

So basically, one will have to get a license from every company that owns pieces
of the DNA in question to run tests.

And what about non-Human DNA? Insulin is produced by bacteria (thank goodness,
its cheaper and works better than the old way of getting it from animals). These
patents are going to restrict this type of production.

Software patents kill technology development. Human gene patents can kill
people. Both need to go.

If the Supreme Court does not throw out gene patents, our genetic research is
going to tank big time, just like our software development.

[ Reply to This | # ]

No-lose situation outside of U.S.?
Authored by: Anonymous on Monday, April 15 2013 @ 01:15 PM EDT
Well, patenting genes is so stupid that justice may well be served either in a
perverse way or the proper way outside the U.S.

One, the gene patent is upheld, but the U.S. will be stuck with our greed. The
rest of the world will rebel and refuse to recognize not just the gene patent
but our patents in general.

Two, the Supreme Court shows some common sense and invalidates gene patents. In
this case, the rest of the world still benefits, and the U.S. will, too.

There seems to be two swing votes on the court, now that Roberts upheld
Obamacare. Kennedy is sometimes the other one.

Scalia, Thomas and Alito seem to be immune to logic.

The vote should be unanimous against the patent, but I think 6-3 against the
patent is the best we might see. It could also be 5-4 against the patent. It
could also be 5-4 in favor of the patent if Kennedy and Roberts uphold it.


[ Reply to This | # ]

  • SCOTUS and CS - Authored by: Anonymous on Tuesday, April 16 2013 @ 08:52 AM EDT
Enslavement
Authored by: Anonymous on Monday, April 15 2013 @ 01:16 PM EDT

Sadly, even today, there are those in the pinnacle* of advanced, civilized societies who desire to have complete authority over others. To claim patents on genetic makeup is just another attempt.

*: At least, pinnacle as relative to other societies today. Even the most civilized of us have a lot of growth in the ethics/moral aspect that we're capable of. My humble opinion.

RAS

[ Reply to This | # ]

The real tragedy, trade treaties
Authored by: kawabago on Monday, April 15 2013 @ 01:31 PM EDT
US has used international trade treaties to force other
countries to adopt the same patent regime. If the US
backtracks, the rest of us will be left with these errors
codified in our laws!

Another reason not to patent genes, living things breed.
Monsanto has released it's round-up soy genes into the wild
and now it is becoming increasingly difficult to grow soy
crops that aren't infected with it. Then you can't use your
own crop to sow the next one because you would infringe the
patent! That is not right.

Weeds are now becoming resistant to round-up so the gene is
useless anyway but farmers are still being sued by Monsanto!
That is also not right.

[ Reply to This | # ]

Hmm, I have an idea
Authored by: OpenSourceFTW on Monday, April 15 2013 @ 02:06 PM EDT
Let's isolate as many genes as possible and publish them.

Boom, prior art.

Oh wait, do we have to know their function? How does Myriad know for certain
that they know their function? What if they have multiple functions?

That reminds me, I'm going to do a little prior art searching for these two
genes.

[ Reply to This | # ]

Balance
Authored by: MDT on Monday, April 15 2013 @ 03:06 PM EDT
I'd be perfectly fine with allowing patents on actual
synthetic DNA. Note that this would not be taking isolated
DNA from A and isolated DNA from B and shoving them both
into C, and calling it new DNA. Yep it's new, but it's also
pretty well understood how to splice genes (what the effect
will be is not, but the actual process of doing the splicing
is pretty well known). However, if you can generate some
specific synthetic DNA that doesn't exist in nature (for
example, building up GCDA pairs and then plugging that into
some existing DNA) then I'd be all for patenting that, even
if it cures cancer or whatever, you've basically created
something new (like taking a bunch of iron and making a new
type of engine out of it).



---
MDT

[ Reply to This | # ]

  • Balance - Authored by: Jeays on Monday, April 15 2013 @ 09:18 PM EDT
  • Balance - Authored by: Anonymous on Monday, April 15 2013 @ 10:30 PM EDT
    • New? - Authored by: Anonymous on Tuesday, April 16 2013 @ 09:23 AM EDT
Today is Human Genome Day at the US Supreme Court ~pj Updated 2Xs - transcript
Authored by: Anonymous on Monday, April 15 2013 @ 03:09 PM EDT
Isn't most breast cancer research funded by donations,
especially in the case of universities? That just makes this
even more disgusting.

[ Reply to This | # ]

What we need is some IP sanity here
Authored by: DannyB on Monday, April 15 2013 @ 03:31 PM EDT
If long sequences of letters A, C, T and G can be patented, then shouldn't we be
able to patent long sequences of ones and zeros? After all, we should offer
patent protection to those Eye Pee creators who create:
* software
* JPEG images
* movies in digital format
* e-books
* music recordings

And similarly, if we can copyright strings of ones and zeros, should we also
afford the blessings of everlasting copyright protection for genes? Now
obviously, there are complexities. For instance, there should be compulsory
licenses for children who have copies of their parent's copyrighted genes. At
least until they are eighteen and can be expected to pay for licensing.

If tirademark law allows someone to own a word, such as "Word" or
"Office" (Microsoft) or "Mini" (Apple), then why shouldn't
they be able to own numbers as well?

Since we allow design patents on rounded rectangles, shouldn't we allow design
patents on other important design elements such as:
* color
* size
* shape
* making something thin
* making something light weight
* making something uncluttered
* making something fast
* making something desirable or useful

In particular it would seem that color should be patentable since there are an
infinite number of RGBA 32-bit colors.

Why shouldn't we be able to both copyright and patent elements from the periodic
table?

If we can patent genes, why not basic bodily functions such as breathing? Or
ages, such as becoming 35 years of age?

I can see that the Supreme Court really has a lot to consider here. But it is
important that we protect Eye Pee to the maximum extent possible to encourage
innovation.

---
The price of freedom is eternal litigation.

[ Reply to This | # ]

RICO? Reckless endangerment of human life?
Authored by: Anonymous on Monday, April 15 2013 @ 03:52 PM EDT
It seems the company is knowingly endangering human life. I assume state and
federal criminal law trumps patent law.

Doctors who have suspected false negatives should preserve blood/DNA samples. If
cancer develops they should request criminal prosecution of both the company and
individuals (board members, executives, and possibly major shareholders)
involved.

I wonder if a RICO investigation could be started now, before too many deaths
due to their unconscionable greed.

[ Reply to This | # ]

Patenting ideas
Authored by: Anonymous on Monday, April 15 2013 @ 04:31 PM EDT
JUSTICE SOTOMAYOR: That's a failure of the patent law. It
doesn't patent ideas.

Isnt that what most NPEs do though? They are not creating
something new, they are just patenting an idea.

Seems this one line should shut down NPEs

[ Reply to This | # ]

  • Patenting software - Authored by: Anonymous on Monday, April 15 2013 @ 04:55 PM EDT
  • Ouch! - Authored by: Anonymous on Monday, April 15 2013 @ 06:55 PM EDT
    • Ouch! - Authored by: PJ on Tuesday, April 16 2013 @ 01:43 AM EDT
      • Ouch! - Authored by: cricketjeff on Tuesday, April 16 2013 @ 05:29 AM EDT
      • patent the law - Authored by: Anonymous on Tuesday, April 16 2013 @ 08:02 PM EDT
The Claimed Invention
Authored by: Anonymous on Monday, April 15 2013 @ 05:02 PM EDT
1 MR. CASTANIAS: Yes, thank you,
2 Justice Alito. It -- it's got 5,914 nucleotides. The
3 genome itself has over 3 billion. It's arranged in the
4 way set forth -- as set forth in the SEQ IDs number 1
5 and 2. Number 2 is the so-called genomic DNA, SEQ ID
6 number 1 is the, as Justice Breyer understood, the cDNA
7 molecule.
8 When you look at those particular sequences,
9 there was invention in the decision of where to begin
10 the gene and where to end the gene. That was not given
11 by nature.
In fact -
transcript p.37 [emphasis added]

[ Reply to This | # ]

One glaring error
Authored by: kawabago on Monday, April 15 2013 @ 06:50 PM EDT
The assumption that research will not be done if patents are
not available does not explain the majority of sciences that
don't render patentable knowledge. Paleontologists,
archaeologists, cosmologists, astronomers, physicists and
more than I can name do research purely to gain
understanding. They are every bit as highly trained and
skilled as people who generate patents yet they do their
research purely for it's own reward. Therefore if the patent
system is abolished, research will continue as it always has.

[ Reply to This | # ]

Are the US courts and USPTO that stupid?
Authored by: Anonymous on Monday, April 15 2013 @ 08:25 PM EDT
The question is - did they invent the human gene? Of course
not - the human genes concerned were there before those
claiming patent rights to them were even born.

Patents are granted for inventions - it the people applying
for the patent didn't invent it, they are not entitled to ber
granted a patent for it. Case closed.

[ Reply to This | # ]

Today is Human Genome Day at the US Supreme Court ~pj Updated 4Xs - transcript
Authored by: Anonymous on Monday, April 15 2013 @ 09:15 PM EDT
They say that the side they question the most harshly is often the side they're
leaning towards: they simply want to make the lawyers answer all the hard
questions for them and put those answers in the ruling.

That aside, I am very hopeful that they will not allow this to be patentable.
But, knowing them, I suspect that they will issue some narrow ruling that makes
all the patent lawyers mad. That's not necessarily a bad thing, mind you, but
sometimes I wish they'd issue broader rulings that put an end to the
shenanigans.

[ Reply to This | # ]

Today is Human Genome Day at the US Supreme Court ~pj Updated 4Xs - transcript
Authored by: Anonymous on Tuesday, April 16 2013 @ 01:40 AM EDT
It would perhaps have been useful had they had a molecular biologist present to
demystify cDNA. The legal discussion over this material was completely inane
from this Biologist's perspective. Isolate an mRNA, incubate it with reverse
transcriptase and the right nucleotides, and a cDNA is produced. (The isolation
can also be done afterwards, that is, convert all of the cell's mRNA to cDNA,
then pick the one you want.) cDNA molecules do occur in nature - reverse
transcriptase is a naturally occurring enzyme. There are numerous pseudogenes
scattered around our genome where this sort of event was followed by an
insertion of the product into the DNA, so that we can see it happened with human
DNA, even if millions of years ago. There are other ways to make a cDNA these
days too - read the genomic DNA, note where the exon intron boundaries are, and
synthesize the cDNA piece by piece and stitch it together. This is all common
knowledge to one "skilled in the arts", as it was when the patent was
issued.

As for the argument about why would a company do this...
What nonsense. The majority of basic biological discoveries do not come from
companies, they come from the hundreds of thousands of researchers around the
world who work on these subjects because they either want to know the answer or
want to help people. Profit from patenting the result is not their motivation.
These researchers want to save lives or at least become famous for having found
something interesting. Preventing somebody else from using these sorts of
results to continue the process is anathema to most of us.

The Myriad patent and others like it are an obstruction to the scientific
process. They are a perversion not only of the scientific method, but of the
rationale for issuing patents, as they impede the accumulation of knowledge and
are deleterious to the public welfare.

[ Reply to This | # ]

Exchange between Justice Breyer and Mr. Castanias, pp. 38-40.
Authored by: macliam on Tuesday, April 16 2013 @ 05:36 AM EDT

In reading the transcript of the oral argument, I noted with interest the exchange between Justice Breyer and Mr. Castanias concerning the presence of DNA fragments in the human body but outside the chromosomes. This was a point that had particularly interested me when I read the Petitioners' brief at the time that it was filed. (It is good to see that Justice Breyer also picked up on it.) I thought that I do some document hunting, to see if I could find the D. Kay declaration that Mr. Castanias referred to as possibly refuting the science in the Petitioners' brief and in Prof. Lander's amicus curiae brief.

It seems that Circuit Judge Lourie at the Federal Circuit had reversed the District Court on the grounds that natural DNA occurred in nature in the form of long polymers in chromatin in cells, and that covalent bonds needed to be cut (or snipped in Chief Justice Roberts's language) to produce the “isolated DNA” claimed by Myriad. It appears that this argument had not been made at the District Court, but was apparently introduced for the first time by Circuit Judge Lourie at the Federal Circuit.

In response to this the Petitioner's brief filed with the Supreme Court pointed out scientists had known for decades that DNA occurred outside chromosomes in the human body, in blood plasma and elsewhere, in fragments (i.e. with covalent bonds already ‘snipped’ by nature). This is discussed on pages 10 and 11 of the brief, with extensive footnotes.

The matter was also discussed by Prof. Lander in his amicus curiae brief.

Mr. Castanias (representing Myriad before the Supreme Court, can only point to a declaration of Myriad's expert, Dr. Kay, suggesting that “You'll find an extensive discussion in there of the technology here and---and of the genetics.”

The only declaration of Dr. Mark A. Kay that I have so far found is his declaration (found on justia.com), as an expert witness, to the trial at the District Court. Much of this declaration seems to be a formal discussion of the meaning of terms in the patent claims, obviously preparatory to a Markman hearing. But there is some discussion of the science towards the end.

Dr. Kay's declaration was employed by Myriad in their opposition to the motion for summary judgement (found on the PubPat website).

Documents field by the plaintiffs represented by ACLU and PubPat are to be found on the Association for Molecular Pathology v. Myriad Genetics webpage on the ACLU website. These include the following:

There are other relevant expert declarations on the ACLU webpage, but I haven't yet had time to examine them.

[ Reply to This | # ]

Genes and finished states not identical
Authored by: Anonymous on Friday, April 26 2013 @ 06:42 AM EDT
I've done a lot of reading on anthropology and a lot on human evolution. The
often-stated claim that there is only one to three percent difference between
homo sapiens (humans) and pan trogdylyte (chimpanzees) is true. It appears that
genes depend a lot more on their environment than this here posse of judges,
lawyers, and unredeemed morons, argue.

And one consequence of patenting genes that leaps out at me like the Alien from
the Nostromo shuttle bay, is the risk of preventing scientists from studying the
contexts in which such-and-such a gene might be expressed or develop; and
preventing them from understanding all possible contexts of such a gene.

Or let us get down to one specific aspect of that risk - cancer is the event of
a cell refusing to die off in its due time and proliferating beyond acceptable
limits. Now you have a pharmaceutical entity that has patented such-and-such a
gene, for pharmaceutical purposes. But it does not understand the full
implications of such-and-such a gene. What is the likeliehood that any remedies
proposed and developed on a defective understanding of such a gene, will prove
to have fatal consequences for some victim ... err ... patient using such a
misunderstood-gene therapy?

I am lucky in that my Dad died too rapidly from his massive set of cancers, to
worry about such problems, legal, bureaucratic-therefore-sadistic and medical.

Wesley Parish

[ Reply to This | # ]

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