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April 03, 2011

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Kevin,

It will be interesting to see how the Federal Circuit panel treats Katyal. I can hear the knives being sharpened.

"The complexities of genetic diagnosis are sufficiently great that a subject matter eligibility ban on genetic diagnostic patents threatens an outcome similar to Premarin®: failure to promote disclosure could lead to "monopolies" lasting far longer than the 20-years-from-earliest-filing-date term of U.S. patents."

So long as there is not sufficient financial incentive for a generic competitor, or other person in the world, to develop the drug themselves or reverse engineer it and sell it in competition. Right? Am I right Kev?

"It will be interesting to see how the Federal Circuit panel treats Katyal. I can hear the knives being sharpened."

He seemed to be treated the best out of the attorneys arguing.

Re financial incentives: you miss the point, 6. There will be financial incentives for non-disclosure for inventions that are difficult if not impossible to reverse-engineer.

It reminds me of one of those graduate student questions - your professor hands you a jar full of a white powder and says, "we just purified this from a squid. Figure out what it is and what it does."

And that's easy compared with the bioinformatics hypos you can create for genetic diagnostic claims.

Insufficient probability of success/reward stifles investment.

Maybe not, but quite a risk. Young people may not care - they have the time are relatively good health to wait. But I assume they have parents/grandparents they care about?

I agree with you to a point Kev. But I don't see how the disclosure or not of isolated genes and otherwise unstatutory gene testing related methods is somehow relevant to whether or not they are statutory.

I understand you think patents are essential to provide funding for new research, and to an extent I agree with you. I cannot agree with you though that our desire to spur the discovery and manufacture of newly isolated genes should somehow override our traditional views on what is patentable save by the intervention of congress. Especially since there are still many other types of claims available to spur what appears to me to be the exact same work that results in the disclosure of the isolated gene.

If the financial incentive is there to reverse engineer/make something new/anew then people will go and do it. If it is that impossible then people can just pay a premium to the one person that figured it out. That hardly seems to me like some tragedy. It would be bad if we could never gain an insight into how to isolate a specific gene or whatever like that because of no disclosure, but as I understand it that isn't exactly a hard thing to do if you know which one you're looking for.

"But I assume they have parents/grandparents they care about?"

The grandparents will be nearly dead by the time 20 years is up wouldn't they?

I don't know, but on the facts of Myriad's case we would have known about those BRCA genes shortly after they filed for a patent. And that does not make for a great policy argument for gene patents.

"Judge Sweet didn't hear from any of the millions of patients whose lives have been saved or improved by these drugs. "

To end us off, he didn't hear from any of the millions of people who wouldn't have paid through the nose for a 40 dollar test either did he? Oh, wait, actually I think he did.

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