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Patents and Open Source Biotech

Posted by michael on Tue Jan 18, 2005 05:32 PM
from the my-new-asian-bird-flu-technique-is-unstoppable dept.
Biotech Patents
sebFlyte writes "Since Slashdot readers seem to be interesting in the issues and problems surrounding software patents, I thought they might be interested to see that Wired is running an interesting piece on patents in Biotech and the way that they can hold up important research, and how there are clear parallels with the open source software community with the way that advocates of openness are trying to solve these problems."
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  • Nice linking (Score:5, Informative)

    by Anonymous Coward on Tuesday January 18 2005, @05:37PM (#11401927)
    Takes you to the second page of the article. For those who like to skip to the end I guess. first page [wired.com]
  • am i the only one who read it as "biotch"

    word

    • No you're not, I was just about to post the same comment. I thought it was a story about someone patenting attitude or something

    • Haha.. I'm glad I'm not the only one. I don't think I've ever misread biotech that way. Must be my low expectations for slashdot.

  • Simple solution ... (Score:5, Insightful)

    by Daniel Dvorkin (106857) * on Tuesday January 18 2005, @05:37PM (#11401936) Homepage Journal
    Exclude living systems and their components (e.g., genes) from the patent system. Period. End of story.

    For those who whine, "But then there won't be any incentive to innovate!" ... GMAFB. Innovation in biotech (and in pretty much every technical field) is done by scientists, not moneymen. And the scientists will continue to do their jobs, whether for prestige or a desire to aid their fellow man or just out of sheer intellectual curiosity. Most of them will do it, BTW, in university labs, not corporate "R&D" shops, just the way they always have.

    If the suits want to make a profit, they'll have to work a little harder to figure out how. Watch me weep in sympathy.

    • Re:Simple solution ... (Score:4, Interesting)

      by Antonymous Flower (848759) on Tuesday January 18 2005, @05:49PM (#11402084) Homepage
      Beautiful post, man. If people don't have the natural desire to understand themselves enough to innovate in this field, to hell with 'em.. If someone discovers a way to cure me, or augment me, or terrorize the living hell out of me I don't want that technique monopolized. Call me communist, call me anarchist, call me when Microsoft wants you to install ActiveX to cure your ailments.
      • If people don't have the natural desire to understand themselves enough to innovate in this field, to hell with 'em..

        Understanding requires money, manpower, and specialized resources. We are far past the days when a man like Pasteur could make a significant advance on his own.

        The Gates Foundation alone has spend over $100 million researching AIDS.

        If someone discovers a way to cure me, or augment me, or terrorize the living hell out of me I don't want that technique monopolized.

        But you will take the cur

    • Re:Simple solution ... (Score:5, Insightful)

      by pbody (532589) on Tuesday January 18 2005, @05:52PM (#11402126)
      Not that I'm a lover of the patent system, but the scientists do not work independently of the moneymen. Government grants only go so far, but the push to patent is VERY strong in the universities. Which personally sucks for me (my field is theoretical physics), and even though I don't do patents, but I still have to justify the work to the moneymen on a regular basis :( We're (sadly?) way past the times when a person/group who wants to do experimental work can just do their jobs without big $$ support.
      • the scientists do not work independently of the moneymen.

        This goes double for industry. You invent something, the company patents it. You might be the inventor, but the company is the assignee. It is their patent to do with what they please. I have patents in a mixture of software and biology. Where I work, and I assume it is pretty much the same in most places, if the company wants to patent it, you have no choice. I am not against patents, but if you work for a corporation and they want to patent
      • Well, to me, this pretty much proves my point. My field is comp. bio., so I'm a little closer to the direct money flow than you are -- but honestly, neither of us should have to justify our work by next quarter's returns. Fundamentally, I believe that scientific research is a public good, like roads and national defense: it may or may not produce an immediate, quantifiable profit, but the nation as a whole (including the economy) is clearly better off when it is properly funded. In other words, yes, dam

      • Re:Simple solution ... (Score:5, Insightful)

        by i_should_be_working (720372) on Tuesday January 18 2005, @06:40PM (#11402622)
        yes, it does suck to have to justify all resarch and make it sound like it's going to be usefull/profitable in the near term. In my group we have to make our resarch sound like an essential step on the road to a quantum computer, but to us it's just research.

        But that's different than having to worry about whether your research infringes on a patent. I think what the parent post meant was that biologists and scientists in general don't want to keep their research closed and patented in order to make money themselves (Funny how the patent pushers go on about needing patents to provide incentive and progression when scientists know that science has to be open to flourish). I guess a tough situation could arise when your funding agency or university is insisting that you get a patent when you know it will be a hindrince to your field.

        So maybe there should be a law. Absolutely no patents in general blue sky research. And if that lowers funding and slows down resarch, well it won't slow it down as much as this patent problem could.

        Only in some sick bizzaro world can I imagine having to stop my research because it infinged on a patent, but it actually happened to a professor at my uni. He does geological resarch and was using a method of determining the density of earth at very low depths. He uses it for basic 'what is the earth made of and what's it doing' type research, but apparently some company that prospects for oil had a very vague patent on the general method and is now trying to stop him from doing his research.

        What a hateful thing

        So I agree with you that big money and even big corporations sometimes have to be involved. I just wish patents weren't.
    • 1 problem.

      Is a Virus living?
      What about bacteria?
      What about the single protein that causes CJD?
      What about a pint of beer, or some new way of making a plastic that uses designer bacteria in the process.

      • Good questions. My answers would be, in order:

        Viruses: maybe, maybe not, but close enough for legal purposes.

        Bacteria: clearly yes.

        Prions (self-reproducing proteins, such as the presumed causative agent for CJD): um, er ... let me think about that one for a while.

        Pint of beer, plastic, etc.: no, and I don't have any problem with anyone patenting a specific formulation of beer or plastic or anything else. It's the yeast, bacteria, or even individual genes used in the process that IMO should be off
      • Is a Virus living?

        No. A virus requires a cell to replicate in. A biologist would probably say the cell is the basic unit of life.

        No the question is what do you mean as a 'component' of life? All organic compounds? Well, many organics are synthesized in the lab these days. Polyethylene is and organic compound. As is acetic acid, all alcohols, etc.

        Clearly 'component' of life is going to be very hard to define.

          • It moves, consumes, grows, reacts to stimuli, and reproduces.

            Viruses fail several of these criterea.

            Viruses don't reproduce. The mechanism for virus duplication involves the cell replicating the virus. Also viruses do not grow, they remain the same size as they were created for their entire life cycle. Viruses do not consume anything either - they have no metabolic cycle. No ingestion of food or excretion of waste.

    • Re:Simple solution ... (Score:4, Informative)

      by Glyphn (652286) on Tuesday January 18 2005, @06:35PM (#11402583)
      For those who whine, "But then there won't be any incentive to innovate!" ... GMAFB. Innovation in biotech (and in pretty much every technical field) is done by scientists, not moneymen. And the scientists will continue to do their jobs, whether for prestige or a desire to aid their fellow man or just out of sheer intellectual curiosity. Most of them will do it, BTW, in university labs, not corporate "R&D" shops, just the way they always have.

      Universities provide a necessary infusion of discoveries and methodologies into biotech, but that's about as far as I can agree with you.

      Couple of random comments:

      Don't put scientists on pedestals. Scientists, collectively, are not motivated by sheer intellectual curiosity or altruism. Any number of them are conniving bastards willing to stick it to the Ph.D. next door so long as their pub gets out first or their grant gets funded. In the upper echelons of university research, the bastard to altruist ratio gets pretty high. In general, they're just human beings, no better or worse than the guy working the counter at your local convenience store.

      Biotech data is expensive: Properly designed, decently powered studies often exceed the pocketbook of government funding agencies. As such, many of the academic research papers in biotech involve rehashes and re-analyses of the same data sets over and over. This is not by choice; it's simply a consequence of their being unable to do more. Industry is a major player in biotech, and has been for a very long time (can anyone say Taq polymerase?).

    • Exclude living systems and their components (e.g., genes) from the patent system. Period. End of story.

      It isn't going to happen.

      The first U.S. plant patents were granted in 1930, sixteen patents were awarded posthumously to Luther Burbank, 1849-1926, the 10,000th plant patent was granted in 1997. Today in Science History [todayinsci.com]

      Burpee was commercially developing hybrid plant and animal stocks as early as 1876, only ten years after Mendel gave selective breeding a scientific basis.

    • Re:Simple solution ... (Score:5, Interesting)

      by fhic (214533) on Tuesday January 18 2005, @07:49PM (#11403410)
      The parent company of the company I work for has recently developed a noninvasive screening test for colon cancer. Basically, you poop in a bucket and the poop is analyzed for fragments of RNA that are associated with cancerous cells. The company spent approximately a bazillion dollars developing this test.

      So how do you let them protect their investment? The detection processes are already patented (we license them, at a cost of another bazillion dollars a year.) They can't patent the poop itself-- everyone's is different. So they patented the structure of the detectable fragments. Did they invent the fragment itself? Of course not, the cancer cells did. But they made these particular fragments incredibly valuable, in one particular context.

      Do these patents prevent someone else from discovering another, equally detectable fragment? No. All it does is protect the company's investment in R&D, while still allowing them to provide a reasonable profit while providing a valuable service.

      If it weren't possible to patent such things, this research would never have been done. And believe me, if you've ever had a colonoscopy, you'd be damned pleased that an alternate technology exists.

      • Re:Simple solution ... (Score:4, Insightful)

        by syphax (189065) on Tuesday January 18 2005, @06:28PM (#11402515) Journal
        2. A man must use his mind in order to survive.

        So must a lion.

        Since survival is the process of maintaining life, it follows from these that a man must have the right to the products of his mind - the right to own property.

        This is what is known as a logical leap. Why must ownership of ideas be *exclusive*, as the parent seems to suggest (i.e. if I own an idea, you can't own the same one)? Ideas are not like diamonds; the replacement cost of sharing an idea is nil.

        If you deny that men can own their ideas, then you deny that men can survive by ideas, and you deny the right of man to survive at all.

        Last I checked, no lion owned a patent for "How to identify, kill, and eat aged wildebeasts," and yet somehow they are able to implement said concept and survive. Curious.

        Patent and copyrights represent a pragmatic balance of power between creators and consumers, nothing more, nothing less. To the extent that they inhibit creators for borrowing from existing ideas, they can be problematic.

        There are no first-principle metaphysical requirements for ownership of ideas to be exclusive, as the parent suggests.

  • On a related note: (Score:4, Interesting)

    by Thud457 (234763) on Tuesday January 18 2005, @05:38PM (#11401944) Homepage Journal
    Viva la revelotion [metafilter.com] , capitalist running-dog pharmacorps!

  • Same thing happening in film/media (Score:5, Informative)

    by Anonymous Coward on Tuesday January 18 2005, @05:40PM (#11401973)

    Is copyright killing culture? [theglobeandmail.com] Some documentary filmmakers certainly think so [centerforsocialmedia.org].

  • Ho hum (Score:5, Insightful)

    by jd (1658) <[moc.oohay] [ta] [kapimi]> on Tuesday January 18 2005, @05:49PM (#11402072) Homepage Journal
    Biotech is filled with patents and IP. There are patents for gene sequences, for chrissakes. Because patents (unlike copyright) cover even accidental duplication, this essentially is a ban on evolution. Great for the Bible Belt, but not so great for the species.


    Interestingly, you can download sizable chunks of the gene sequences for cows, chickens, humans, the SARS virus... Clearly, the researchers who have made such information available are Communists, for not protecting their IP rights and demanding the first-born from all who would see such information.


    Pathetic. The bulk of serious research is done in an open environment. If you want to see quality, verifiable, useful information, you don't look in the patent office. You look up the research papers that have been published and are either freely available or damn cheap.


    To the best of my knowledge, the only person known to have successfully learned something from patents was Einstein. But if you look at his best work, you look at the thought experiments, the observations of the ordinary, the stuff that is simply not ownable. THAT is where Real Science and Real R&D takes place.

    • "To the best of my knowledge, the only person known to have successfully learned something from patents was Einstein."

      Go look at a U.S. patent, any one, and look under the section called "references cited" -- there you will see a bunch of other patents that the current patent is "built upon."

      I guess you could be cynical and say that those references are only listed so that the patent owner can later avoid an inequitable conduct charge, and to basically take those patents out of contention in the case some
    • There are patents for gene sequences, for chrissakes

      No, there aren't. Genetic patents cover the gene PLUS some use of the gene.

      ssentially is a ban on evolution.

      You have no clue.

      The bulk of serious research is done in an open environment.

      Do you realize what a patent requires you to do? You have to publish your results in order to be granted a patent. Anyone can download your patent and us the results for further reasearch. Without the patent the researcher would have NO incentive to patent.


      To t
  • It's the worst thing we're doing, allowing patents on genetic coding and other areas relating to biology. Imagine if someone discovered a gene that 100% determines whether or not a person gets alzheimers. So the person patents it and subsequently refuses to let anyone else work on drugs that would affect the protein produced by the gene. In the years before the patent expires, a cure could have already been found.

    My example is poor because genes that influence alzheimers have been found already, but it'
    • Another example, previously featured on slashdot, is genetically modified seeds. What if seeds from a field of grain blow onto yours and you end up with the genetically modified grains or what have you, and you're sued for "stealing" it. It's an actual possibility, and it's MADNESS.

      Not just a possibility it is happening [commonground.ca].
      • Red Herring. In the case cited in your link, Monsanto actually withdrew all charges once they became convinced that the contamination was accidental.

        Nobody has been able to show me a case where Monsanto has gone after a farmer after it was shown the contamination was accidental. It just hasn't happened, and is one of those urban legends that the anti-GMO crowd is using, falsely.

  • ...when we still have public funding on all this proprietary patent work? A _true_ fiscal conservative republican would funnel the country's money into development that encourages an open and competitive market place. If people want to use their own private money to gamble on patents then that's fine, but not public money!

    Seems to me, we're putting money into public research that feeds private pockets in an unfair way...

    Is the prez just trying to promote his religion in the guise of conservatism?

    I don'
  • Nothing should ever be patented, trademarked, or copyrighted.

    Unless I wrote or invented it.
    • I don't have mod points, so I'll bite the troll instead.

      /. groupthink is only groupthink because it attracts like-minded individuals - those who think dramatically differently tend (note: not always) decide that they can't be bothered with all this nerdy-political-hippy-communist-patent rubbish, and don't spend that much time reading, much less posting to /.
      I suspect (though am prepared to be proved wrong), that much of the "groupthink" is based around a few simple principles:

      1. Many things are wrong with
    • By posting what you've posted, you've proven that there is no /. groupthink. Lots of people, perhaps a solid majority, may hold a certain position on a certain issue; that doesn't mean everyone here thinks exactly alike. If you believe yours is a minority viewpoint, please, by all means, post something cogent in support of it.
  • Once again.. capitalism and peoples lives, don't mix.

  • What am I missing here? (Score:5, Interesting)

    by espressojim (224775) <eris@NOsPam.tarogue.net> on Tuesday January 18 2005, @06:21PM (#11402448)
    Here's an article quite:
    BIOS will soon launch an open-source platform that promises to free up rights to patented DNA sequences and the methods needed to manipulate biological material.

    I thought you can't patent DNA sequences, only processes on sequences. Gene patents without specific purposes were thrown out years ago, weren't they?

    I understand why methods are being patented. They are costly to develop. They aren't obvious. Without patents, I'm not sure what the desire is to invent a new method to cheaply assay something.

    My work uses data very similar to sequence data (genotype data), and the data gathering process has become a commodity over the last few years. Everyone's developed their own machines, methodologies, and patents. You can sign up with any of these guys, and essentially the bottom line is: cents / data point. You weight that in against the size of the batches you're planning on doing over the next number of years, the reliability and service provided by the company's platform, and go.

    These companies would not be innovating newer, cheaper solutions if I could just take those solutions back to the lab and they didn't earn a penny for their effort. As it is, these companies are working on slim margins, and not many of the startups are successful.

    In the past, before these companies came out with their turnkey solutions, we'd have to roll our own. And that means detection systems, possibly robots, databases, protocols for chemical processes, etc.

    When I worked in the lab, we did one of these, based on a paper that was published in 1999. Even standing on the back of another researcher, it took us 18 months to have a working assay system that was 'production ready' for JUST OUR LAB (granted, it's the MIT genome center, and we're a big-ass lab.) Just about the time we finished, the first decent turn key solution came out...and it was cheaper and easier than what we'd developed.

    I love what I do for a living. It's a good time, and interesting work. Would I do it for free, if I had to work a normal job?

    No way. This job alone takes huge amounts of time, outside research, etc to excel. If I wasn't compensated for my hard work, I'd have no time to *do* that hard work.

    (given all that, we're working on open-sourcing chunks of our source code, to at least give something back to the community - but source code is the least of our assets.)

  • DNA patent enforcement (Score:2, Funny)

    by Anonymous Coward
    Just wait until they crack down on people sharing their patented DNA in anonymous P2P singles bars!

  • Editors cut out the last bit of submission (Score:3, Funny)

    by FiloEleven (602040) on Tuesday January 18 2005, @06:36PM (#11402585)
    sebFlyte writes "Since Slashdot readers seem to be interesting in the issues and problems surrounding software patents, I thought they might be interested to see that Wired is running an interesting piece on patents in Biotech and the way that they can hold up important research, and how there are clear parallels with the open source software community with the way that advocates of openness are trying to solve these problems."

    sebFlyte continued:

    It's very interesting. I'm interested to see what interesting direcitons may be taken if these patent holders are interested in furthuring this interesting branch of research for the good of humanity.

    (all in good fun)
  • it is important to point out that the whole academic publishing endeavour is a lot like open source. when you publish something publicly, it becomes part of the public domain and therefore unpatentable by anyone. research scientists (even the ones in corporations) depend on being able to access this vast weath of knowledge

    its true that the US congress has gone a bit far in extending patent rights (first drugs had 5 year patents, then 10, and now some have 15 years). this has created high drug prices an

    • Ok and how do you propose the current system to be viable. When Monsanto owns all the food in the world and farmers can't grow without a license from them. I can't see that working for any length of time. It comes down to fix the problem now or deal with the utter breakdown in the future.
        • And when their seed blows into your crop (happens) they get to sue you and basically take your farm. search on Percy Schmeiser and read his story of how Monsanto pretty much ruined his farm.

        • There are articles you can google for about Monsato Suing people that did use regular corn. Their neighbors bought the GM corn, and it cross polinated. And Monsato says that they have to pay because they own the patent on that type of corn. Even though the farmer never bought it.

    • Re:DNA is an acid. (Score:5, Informative)

      by Icarus1919 (802533) on Tuesday January 18 2005, @05:55PM (#11402151)
      That's not true, every prescription drug is a chemical and they can certainly be patented. Where did you get the idea that chemicals can't be patented? Even different combinations of chemicals can be patented, take for instance sodas. All fairly simple ingredients, but clearly a patentable product.
      • Just a minor point, sodas (or any recipes) are not patentable. The recipe for Coke, for example, is a trade secret, not a patent.

        Recipes aren't copyrightable either.
        • Just a minor point, sodas (or any recipes) are not patentable

          Wrong. Mixtures certainly are patentable so long as you can show they have novel properties.

          Just because something isn't patented doesn't mean it can't be. In the case of Coke patenting the formula would be a dumb move since the duration of patent coverage is only 20 years. After that 20 years anyone could use the same formula. Trade secret protection has no time limit.

          • "Mixtures certainly are patentable so long as you can show they have novel properties."

            Is 'light, crisp, refreshing' taste (I'm looking at a diet Pepsi can here) a novel property?

            I guess I should have been more clear -- maybe you could, in principle, patent a soda recipe -- but how would you show that it has novel properties (beyond what you would expect a soda to have) and that it was nonobvious to one "skilled in the art?"

            "Just because something isn't patented doesn't mean it can't be."

            Very true.
    • Chemicals can be patented ... medicines, synthetic fabrics, fuels, etc. Or do you mean "I don't think chemicals should be patentable"?
    • "Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title." (USC 35 101)

      Chemicals are essentially mentioned explicitly in the law as an invention patentable. Of course, a new DNA sequence isn't really a new composition of matter, although most things you can do with DNA involve the production of chemicals which might be new.

    • Dude, my grandfather is a chemical engineer and has 60+ patents. Whiteners, that ink-impregnated paper that replaced carbon paper, etc.

    • Chemicals cannot be patented.

      Wrong. Some of the most famous of all patents are on chemicals. Teflon for example.

      The Patent Office is moving to use exactly the same guidelines for patenting genes as they use for all other chemicals.

    • it would be as if columbus made people pay him and his descendents a royalty to explore the new world.
      No, because Columbus was the equivalent of the scientist rather than the company. His financial backers (i.e. the Spanish Crown) claimed large chunks of the New World and prohibited it from trading with nations other than Spain.

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