US Says Genes Should Not Be Patentable 127
Geoffrey.landis writes "A friend-of-the-court brief filed by the US Department of Justice says that genes should not be patentable. 'We acknowledge that this conclusion is contrary to the longstanding practice of the Patent and Trademark Office, as well as the practice of the National Institutes of Health and other government agencies that have in the past sought and obtained patents for isolated genomic DNA,' they wrote (PDF). The argument that genes in themselves (as opposed to, say, tests made from genetic information, or drugs that act on proteins made by genes) should be patentable is that 'genes isolated from the body are chemicals that are different from those found in the body' and therefore are eligible for patents. This argument is, of course, completely silly, and apparently the US government may now actually realize that."
Monsanto will most likely get this reversed (Score:4, Informative)
Re:Monsanto will most likely get this reversed (Score:5, Insightful)
An example for software patents (Score:3, Insightful)
It's also an example for how we can do our software patents lobbying.
The US govt pleading for a narrowing of patentable subject matter is rare (AFAIK), so this is a juicy example of how they justify a narrowing and how, in legal terms, they argue for a narrow interpretation.
If anyone has info about these angles, please add it to what I've got here:
http://en.swpat.org/wiki/Excluding_gene_patents_in_the_USA [swpat.org]
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Exactly where I was going. No need to say it again. This would crush Monsanto and I hope it does.
Re:Monsanto will most likely get this reversed (Score:5, Informative)
Re:Monsanto will most likely get this reversed (Score:4, Interesting)
Wouldn't this at least keep them from declaring that fields adjacent to fields that use their seeds and somehow end up with genes from their "sterile" plants are somehow in violation of some kind of agreement or patent, since the genetic sequence itself can't be owned by Monsanto?
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No, because they have more money than the farmer the field belongs to, and thus can outlast him in court.
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"Read the whole judgement, the farmer found some plants which he knew were herbicide-resistant and selectively bred them to get enough seed to cover a significant portion of is crop."
So? Sorry but I see no reason you should be able to own a plant or genes in the plant that could be bred into subsequent generations.
Monsanto has the only seed you can be certain is resistant and has a patent to guarantee that. Subsequent generations could exhibit the gene only partially or to a lesser extent. That is all the m
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Read the whole judgement, the farmer found some plants which he knew were herbicide-resistant and selectively bred them to get enough seed to cover a significant portion of is crop.
This isn't an "oops, 'somehow' some seed blew onto my field" situation.
Why isn't that his right with plants found on his land? It's not like he stole from his neighbor's farm or from the company itself. If an advantageous strain of a crop finds its way onto your land through no fault of your own, why should you have to pay someone else for it? It was basically given to him.
Claiming ownership of all descendants of a single plant is simply not how we did agriculture before the invention of GM crops and gene patenting. So why should we change the law to support this?
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More important: the farmer was using Roundup on Roundup-resistant crops. There's a patent on *that* and he was knowingly violating it.
Where he got the Roundup-resistant crops is *irrelevant* to that particular patent.
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You're fucking kidding right? Genetically altering a crop to be resistant to a pesticide that kills everything else? it had never been done before.. it had been considered *impossible* before they did it. That's like the most precise definition of non-obvious.
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The troublesome ones are different, for example, the roundup ready canola. They enforce that based solely on the genetic traits of the plant. That's why they sue anyone whose canola contains those genes even if it is clearly the result of hybridization and even though it is so poorly controlled that there are now a good many roundup ready weeds growing along the highways in areas that grow canola.
Re:Monsanto will most likely get this reversed (Score:5, Informative)
which is anti-capitalist
"Anti-capitalist" would mean that they oppose in some way private ownership of capital (which clearly they don't have a problem with). "Anti-competitive" is the better term.
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Actually, it's "private ownership of resources or capital," you could very well argue a patent to be a resource. So, uh yeah... Anti-capitalist is (arguably) proper.
And you can argue the Moon is made of green cheese. A lot of nonsense is "arguable".
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The term arguable does imply that the argument isn't laughable.
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The term arguable does imply that the argument isn't laughable.
Not when it is inappropriately used.
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Actually, it's "private ownership of resources or capital," you could very well argue a patent to be a resource. So, uh yeah... Anti-capitalist is (arguably) proper.
Even if we take this very strained interpretation of patent as a resource, you still have yet to explain why this indicates that Monsanto opposes in any way private ownership of patents?
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Re:Monsanto will most likely get this reversed (Score:4, Insightful)
The present case has nothing to do with Monsanto's products or patents. What's more, patenting genetically modified organisms is already settled case law.
http://en.wikipedia.org/wiki/Diamond_v._Chakrabarty [wikipedia.org]
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Re:Monsanto will most likely get this reversed (Score:4, Informative)
You apparently don't understand case law, then. Case law doesn't arise from a jury's finding of fact, because the jury doesn't make or interpret the law, they only decide the facts of the case. The judge, on the other hand, interprets the law and determines how it applies to the case at hand, and the precedents that judges make on their own court and lower courts is what forms the basis of case law.
If you find a case where evidence was excluded, for example, and point out that in your murder case, evidence should be excluded for the same reasons, you very well could get off, ultimately based on case law. But you can't just say that a jury acquitted Joe Sixpack of murder, so that's case law and you should be set free, because it's not case law.
In this case, the Supreme Court decided that GMOs were patentable (albeit by a 5-4 decision where none of the justices sitting on that case are part of the Court anymore). Since the judicial system is the arbiter of the law, and (generally) the courts respect the precedential decisions of their superior courts (the Supreme Court being the big daddy of them all), the only recourse for changing the law is to either convince the Supreme Court to change their mind or to legislate a change in the statute.
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"Case law doesn't arise from a jury's finding of fact, because the jury doesn't make or interpret the law, they only decide the facts of the case."
That is incorrect. Juries were tasked with the duty of not only interpreting the law but if its application on a case by case basis serves justice. The courts first decided they didn't have an obligation to inform juries of these rights and obligations. Subsequently they gave themselves the authority to lie to juries and tell them the opposite. Finally the courts
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That somewhat misrepresents the concept of jury nullification. It arises as a de facto power of jurors because of how jurors and jury verdicts are treated by the court, i.e., it allows them to render a verdict generally without questioning their motives for it, even when those motives contradict their instructions from the judge and/or the plain wording of the law itself. This doesn't mean that jurors have the right to nullify the law when rendering a verdict, and certainly not an inarguable obligation to
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Gee and stupid me
No argument there.
Stop flaunting your ignorance. (Score:2)
Gee and stupid me I thought we were a nation that used CONSTITUTIONAL LAW, not case. If we were case law I could kill somebody and then point to an example of when someone else got off and be released myself.
Apparently, you don't understand how the common law legal system that we inherited from the English works. At all.
Case law is simply the body of previous cases addressing the same issue. In the common law system, we treat previous court decisions on the same subject as binding. This is known as "stare decisis." A court might overturn its own previous decisions if there are extraordinary circumstances but will never overturn a higher court's decision (unless they're just eager to get overruled). Most ch
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How would Monsanto do this? Cause the Justice Dept to backtrack? The only way that would happen is if the Obama administration wanted to commit suicide. Lean on Congress? Congress isn't the Justice Dept. All they can do is pass laws. Those can be taken to court, which Justice would surely do. In about 10 years, we might have a verdict. By that time, the cat will be out of the bag.
Re:Monsanto will most likely get this reversed (Score:4, Interesting)
Genes exist completely independent of man's awareness of them or not. By legal definition they are a discovery, not invention. Again, by legal definition, they do not and never have qualified for patent status. As such, I've never understood why they have ever been allowed in the first place.
Imagine someone patenting oil, air, cotton, atoms, so on and so on. All of these are discoveries, not inventions. Literally, allowing gene patents is the exact same thing as being required to pay a royalty on breathing and yet everyone says that would be completely absurd - and yet, we are all holding our collective breaths here.
Now if only I could patent stupidity in government...
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BS. No one patents genes in general. One patents particular sequences used for a particular purpose. Not that I agree it should be patentable, but your argument is just silly.
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You can still patent the process for isolating the gene and constructing the gene and using the gene. Just not the gene itself. Which is fine....in my mind, it's prior art.....all you have to do is find an organism with that gene that existed before the patent....the organism created it through natural means, but it still created the gene.
Limits? (Score:1)
Is this limited to human genes as the submission indicates, or will this apply to DNA/RNA in all species?
It's not like the DNA was already functioning (Score:4, Funny)
It's not like the DNA in-situ was already functioning perfectly. Opps, I guess it was.
So what did the pharma company "invent" to earn the patent?
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All inventions can be interpreted as discoveries of already existing natural phenomena. It's not like inventors come along and rewrite the laws of physics in our universe, people just string together things that work.
To that extent, observing that such and such DNA controls such and such process in the body is not conceptually distinct from discovering that such and such arrangement of black plastic and magic smoke forms an LM741.
Arguably, no one ever invents anything. People just pick some arbitrary level
Re:It's not like the DNA was already functioning (Score:5, Informative)
Except in patent law, there is a distinction between discovery and creation, at least in theory.
It is arbitrary where we choose to differentiate, you're right about that. But the line is drawn on the basis of observation versus utilization.
If I observe that objects of differing mass fall at the same velocity if air resistance is taken away from the equation, I cannot patent that. If I use this observation to determine that slowing decent via increasing surface area is possible, and create a parachute, I can patent that. Or I could if those examples weren't hundreds of years old and therefor covered under prior art.
Identifying genes, where they are and what they do, is observation. Tinkering with them is utilization.
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In this case, the tube sock is prior art.
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Except in patent law, there is a distinction between discovery and creation, at least in theory.
No there isn't. "The term "invention" means invention or discovery." 35 USC 100(a) [cornell.edu] (emphasis added). "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." 35 USC 101 [cornell.edu] (emphasis added).
The line is drawn at the laws of nature, phy
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"Isolated, purified genes do not occur in nature"
Neither do clean floors. But floors do exist in nature and so do genes therefore neither is patentable. The product or process used to clean the floor or to isolate and/or purify the gene might be the floor or gene itself is not.
And your process of isolating and/or purifying would need to be composed of methods that aren't being used to isolate and/or purify other genes otherwise it isn't non-obvious it is just a progressive improvement that any of your peers
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Genes are information carriers. No one patents genes in general, just particular sequences for particular uses. You sound silly.
Re:It's not like the DNA was already functioning (Score:5, Insightful)
It may be more complex, but that does not make it an invention.
Show me where I can find a ratchet wrench [wikipedia.org], and I'll call it a discovery.
On the other hand, I can tell you where to find pretty much all the genes that are patented - in organisms that nature derived on its own.
Now - if, on the other hand, some company designs a gene, that does something that has never existed in nature - that'd be an invention. But moving genes from a fish into a plant isn't an invention, any more than adding "on the internet" onto already existing technology makes that worthy of being patented. Very neat, and you should probably be allowed a patent on the technology used for it.
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You need to be clear -- the process used to move the gene from the fish to the plant and getting it to enter the plant genome properly could very well be an invention, just not the sequence of genes themselves.
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Yes and the resulting fish or plant also wouldn't be covered by a patent for that process. It would not infringe to use good old breeding to replicate the fish.
Also could be an invention is key. If you are using standard processes being used by all experts in the field to accomplish the tasks then it is hardly patent worthy. Your peers would have arrived at the same solution if they worked toward the task. We shouldn't be giving patents for routine progression.
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Re:It's not like the DNA was already functioning (Score:4, Insightful)
moving minerals from a rock into a bar of iron which is forged in to a wrench is just just taking technology that already existed and moving it somewhere else.
That's silly. If you find a fish that glows in the dark, a bacteria that produces less harmful byproducts, and another bacteria that can eat crude oil - and you combine the three traits into a bacteria that glows in the dark, eats crude oil, and has less toxic byproducts...you've created something new. No less so than taking wheat that someone else invented, grinding it up, and combining it with water that someone else invented to make bread.
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No less so than taking wheat that someone else invented, grinding it up, and combining it with water that someone else invented to make bread.
And thank God we had patents!
Can you imagine where humanity would be if we hadn't been granted patent protection? Nobody would have had the incentive to invent bread. All that work: inventing agricultural methods, refining plant products, taming fire, finding the right combinations of everything... it just wouldn't have been worth it without the knowledge that the bread inventor would get his patent.
We'd all be sitting around forest fires, unwilling to make our own bread (because what would be the benefi
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And there is a reasonable case to be made that you should have some kind of IP rights in that bacterium.
But it's a big leap from there to say that you should be able to patent those genes, and prevent other people from maki
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Now show me where you can find the isolated gene, the isolated cDNA, or other forms of the gene (apart from a the unisolated form appearing among 2.9 million base pairs of material) that make the isolate useful for diagnostic testing, genetic and proteomic research, and the like.
Nobody has patented th
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Neither the Federal Circuit nor the Supreme Court are going to buy that argument.
What about Congress?
There are some pretty big political fish to fry in this case, what with it being related to breast cancer and all. Even if these patents escape unscathed from this lawsuit, they'd still make a pretty nice trophy on the wall of some Congresscritter, wouldn't they?
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So you go from a string such as 1 2 3 4 5 6 7 8 9 and isolate 4 and then claim you deserve a patent no on the process used to isolate 4 but on 4 itself?
Using your ideas every newly discovered prime is worthy of a patent.
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"4" is not a process, machine, manufacture, or composition of matter. See 35 USC 101.
DNA, regardless of its information content, is a composition of matter.
To your main point concerning isolation: Michelangelo's David is a form that was already in the stone -- the artist is even reputed to have admitted as much. Accordingly, using your ideas all subtractive sculpture is unoriginal and undeserving of copyright.
Patents are granted for taking the raw stuff of nature and transforming it into new and useful to
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There are genuine inventions. For instance the real numbers and specifically the completeness axiom is invented, not discovered. There are several ways to define completeness (Cauchy-series, Bolzano-Weierstrass, Dirichlet), and all of them are invented. The discovery is, that all of them are equivalent - if you set one of them as axiomatically true, you can prove the others.
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IANAL and all that, but the /. beloved obviousness test should apply here.
For something to be patentable, it has to be non-obvious to a person working in the relevant field. The relevant field here is genetic biology. They are simply lifting the pattern straight out of the naturally occurring genome, without altering it.
It would seem that this would be an exceedingly obvious application of genetics- anyone with the appropriate (and probably patented) equipment can do it, no skill or ingenuity required.
Custo
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That's precisely what I'm getting at: "obviousness" is relative. You argue that the distinction between discovery and invention is "obviousness to someone in the field." That's a metric, sure, but still an arbitrary one.
What I mean is, there's a difference between something seeming like it "makes sense" like the obviousness rule, and an actual definable distinction. All I'm saying is that wherever you draw that line, it will always be arbitrary.
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If someone in the same field would solve the same problem in a sufficiently similar way, it's obvious.
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Yes you can. Patents aren't about being fair to the inventor they are about promoting progress. If others working in the field would have eventually come with a solution as part of the normal course of doing their jobs then it in no way benefits society to grant a patent.
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"If you fall in the camp that progress is a function of the times and not of individuals, than your system would grant no patents to anyone."
I do but I disagree with your conclusion. Newton and Einstein both developed models that would qualify for patents under my system. Of course they'd be expired by now.
Patents would still be granted they'd just be a lot more rare and usually a lot larger in impact.
Some would argue that Einstein and Newton didn't invent but rather discovered. I would contend that those a
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I think that both Newton and Einstein would fall in the category of people who would never want a patent.
So why have patents at all?
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Since we have deviated from talking about the existing system to my system by adding the element of opinion I'll take license and extend it a little further.
I'd venture that Einstein and Newton would certainly WANT a patent even if they might not be as greedy as some in its enforcement. Regardless of their personal wants there is plenty of motive to grant them their patents.
A patent is essentially a grant of wealth that is in principle directly tied to the utility of your invention. People like Einstein and
Einstein patent (Score:2)
Einstein patent: http://www.google.com/patents?vid=1781541 [google.com]
He was a patent clerk after all. One wonders if he would have amounted to anything if he'd been given an interesting professorship instead of a taking a boring desk job to daydream at.
Perhaps that's an argument for the elimination of the USPTO: Free the Einsteins!
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Arbitrary? No its not. If patents were granted because 'you have a right to profit from your work' the line might be arbitrary. Is such and such worthy of the innate right to profit? But that isn't the case.
Patents are granted to reward the invention of something truly novel so that you and others like you will be inspired to continue trying to invent truly novel things.
When determining if something is patent worthy we are deciding not if you have some innate right to profit but whether creating an artifici
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And those things they strung together didn't exist before they made them, so they invented them. They simply didn't invent the building blocks those things are made of.
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Did that configuration exist before you tied the component systems together? If not, it's new.
Also, every definition of a word that makes it fit either everything or nothing is useless.
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Did that configuration exist before you tied the component systems together?
How exactly do you propose we test this?
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The traditional approach works well enough: can anyone demonstrate that it existed before the claimed moment of invention? If nobody disputes that it is new, then we assume for legal purposes that it is new.
Yes, it is theoretically possible that exactly the same design of wrench has been in use for millenia on the planet Zog, but that is of no practical relevance.
In the case of genes isolated from living organisms, it is patently obvious that prior art exists, becaus
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Now that we have millions of patents, companies patent first and look for prior art later. The patent office can't keep up with that, and, as often noted here on Slashdot, grant patents to things with numerous examples of prior art.
Sure, those who hold the prior art can take the company to court, but most people lack the wealth to last very long in court against a major corporation. Even if they could afford a trial, they might not win if the judge for some reason doesn't see their prior art as good enough.
Re:It's not like the DNA was already functioning (Score:5, Insightful)
That's my basic take on it as well.
Genetic modification and tailored organisms should be patentable. For example, if someone were to develop a useful modified single celled organism that processed sewage into biofuel, I could see patenting that as valid. It's engineering after all, just with genes instead of gears.
But discovery has never been patentable in any other field, and that's what's being discussed in TFA. You can't patent if there's prior art, can't patent something you've found rather than made, and can't patent abstract scientific knowledge. You cannot patent the lever or pulley, and in a mechanics to biology comparison, those are the best analogues to genes. Except it's even worse, because those two examples were developed by humans in the first place, so at least somebody long dead could claim ownership, whereas genes are strictly a natural occurrence.
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Except if the genes are already "discovered" by nature, which I read some story about bred pigs from a farm which had a gene from the breeding but Monsato patented the gene. The story is here http://www.globalresearch.ca/index.php?context=va&aid=2480 [globalresearch.ca]
Take patent application WO 2005/017204. This refers to pigs in which a certain gene sequence related to faster growth is detected. This is a variation on a natural occurring sequence -- Monsanto didn't invent it. It was first identified in mice and humans.
Than of course are the patent infringement issues if the neighbor of a farm using Monsanto's patented seeds and some seed are landing on his farm by wind. You can't tell the difference until you send the genome to a laboratory to test, and until then you ar
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Patents should never be on any living thing. This is especially true of Monsanto's plants. It has been shown that various forms of contamination from Monsanto's plants into crops of non-Monsanto varieties has led to tragic consequences. This will remain true until an exception for accidental contamination of living things is made in law or until patents on living things are eliminated entirely.
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What happens when your organism mutates?
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I'm curious how you'd square that stance with the invention of velcro [wikipedia.org]. It wasn't truly invented - the guy looked at the burrs which stuck to his clothing under a microscope and saw the hook and loop system. So he didn't think up the idea, nature had already invented
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"I'm holding out similar hope for nanotape [technologyreview.com] - sticky tape based on carbon nanotubes modeled after the microscopic hairs on gecko feet. Nature invented it, but it's proving to be an enormous engineering challenge to replicate it."
Simple the patent wouldn't be for the nanotape but the method you find of replicating it. The resulting tape or other methods of producing it would be fair game.
If someone else finds a way to take your already made nanotape and use it to make replicating nanota
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But discovery has never been patentable in any other field . . .
Wrong
Read the Constitution:
"To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries; "
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Completely agree. Patents have done NOTHING but hurt the creative process and stagnate development.
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A Missed opportunity..... (Score:2, Insightful)
Seriously, It is so welcome to see a wee bit of sanity returning to this madhouse that is the current IPR regime....
RkR
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So for illustration purposes, some company patents the gene for Sickle Cell Anemia for whatever reason and starts making money off of it somehow (royalties from folks studying the disease?), organization sues them for infringement and uses the money to saves the whales or whatever.
This Just In From the "No Shit" Department (Score:5, Interesting)
Thank you, Justice Department, for another flash of the blindingly obvious.
Of course, if the DOJ has to spell this out, and the institutes that control our federal research dollars in health still can't see it, how does this bode for truly cooperative health research in the US? Not well, I'm guessing.
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Technically, you aren't infringing these kinds of patents unless you produce the isolated gene, since the claims specify "isolated".
In fact, that's what the entire argument hinges around: the patent holders say that the patent is valid because the claims require the gene to be in isolated form, which (as far as we know) doesn't happen in nature; while the plaintiffs say that isolation is a technicality meant to (but providing insufficient substance to) evade the prohibition on patenting naturally occurring
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Except that such an argument is excrement. RNA isolates and transcribes a single gene or a short sequence of genes all the time. That's how protein coding works.
What they mean is that isolating the gene and transcribing it into human-readable form does not occur in nature. In effect, the only thing they're really doing is observing such a DNA fragment, which really stretches the boundaries of common sense as patents go.
Not Patentable???? (Score:2)
Ah... to much prior art?
Why are gene patents issued in the first place? (Score:1)
the concern shouldn't be non-GE organisms... (Score:2)
If you create a bacteria that can eat spilled crude oil and create happiness as a byproduct, then the only protection you have is patenting the genetic makeup of that bacteria. Yes, others then abused the idea and patented genes of organisms that had been around a long time. But to dismiss the whole idea? Are we saying we don't want genetically modified foods, or genetically modified animals that are specially bred to be used in lab experiments? Do you want that weighing on your conscious?
(for those not
About as obvious as it gets (Score:2)
You cannot patent something you did not create, plain and simple.
Source gene's should not be patentable. Modified genes should.
Genetic Patents Are Vital (Score:2)
Surprising (Score:2, Interesting)
What's more surprising to me isn't that the DoJ issued this amicus curiae brief, it's that they issued this even with former RIAA lawyers in its top echelons. If their top lawyers believe that companies should be "free" to control information, then they would no doubt have a problem with this brief.
On the other hand(s), they may not have a problem with freeing genes from patents, they may not personally believe what their former employers believe and were merely doing their jobs (which is pretty common amon
Please kill software patents next (Score:2)
A key patent rule is non-obvious. I haven't heard of a software patent in years that 8 out of 10 developers wouldn't invent given the same problem to solve. Also prior-art needs to be able to kill patents in an afternoon. A huge amount of this stuff we have all seen from the 90's and yet it is getting patents from applications in like
how about copyright? (Score:2)
Woot! (Score:2)
So, we'll patent their blood. (Score:2)
How would these "proponents" like it if someone took a sample of their blo
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The Government is a large organization, which means that it's both incompetent and corrupt. Conservatives's problem is that they don't realize this extends to "private" corporations as well.
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Sure. My corn field has sex with frogs all the time. Doesn't everybody's?