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June 16, 2011

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Comments

I lulzed.

How is a natural phenomenon NOT a product of nature? Explain the distinction, please.

Kevin,

What the ACLU says just proves my view of them: they're hypocritical, two-faced, and fork-tongued. They're never troubled by the facts (or science), and especially distorting the facts (and science) to support their point.

David,

You've bought into the ACLU's distortion hook, line and sinker. "Natural phenomena" is something in nature like lightning or gravity: that's what the courts have said is patent-ineligible. "Product of nature" is understood by the courts as something derived or obtained from nature, not nature itself, and therefore potentially patent eligible. A huge difference between these two terms.

The USPTO is the ONLY US Agency that requires special accreditation to represent clients. An attorney can brief the US Supreme Court, but needs a credential by the USPTO alone, to file a patent application before the USPTO.

If that's not enough, the USPTO now wants to improve US competitiveness by setting and keeping their own fees.

So, in the USPTO we have, a) a 100% monopoly to issue patents, b) with sole pricing discretion, c) deciding who they will work with.

Their shrine to "innovation" should be a tombstone. Anywhere else but the US Government, the antitrust forces would be howling.

Kevin:

I agree with the opposition to the second opinion thing. If it passes, folks like you will hang your hat on this to support your contention that biomarker correlations (at least nucleic acid-based markers) are patent-eligible as methods. I continue to be disappointed in those that rail against composition patents for isolated nucleic acids, because it lessens their credibility when they argue against method patents for correlating the existence of a nucleic acid-based marker with a trait, which is the REAL problem. It allows people of your ilk to call ACLU et al. delusional or radical. Sort of like a feminist group that wants to replace "manhole cover" with "personhole cover." When the group takes that position, nobody wants to listen to what it has to say on other legitimate problems.

David: your definition devours the subject matter. Truly, "everything" is a product of nature, so nothing should be patent-eligible. Since that isn't my position, we disagree. (It also isn't my position that iPads should be patentable but life-saving medicines should not.)

Cute picture of your baby doing pushups, by the way. An aspiring gymnast?

Dear Sherman:

There is a middle ground. Have Congress set the fees (which the Office must justify) but mandate that the Office keep the fees (subject to Congressional audit over what the Office does with the fees). Then you have the best of both worlds.

Thanks for the comment.

Dear Gary:

I have always agreed that the issue is how to foster genetic diagnostic method development while avoiding a patent thicket. As you know, the district court ignored this issue (in the sense it used less than 5 pages of a 150+ page opinion to say "Bilski), and the furor over "who owns you" has drowned any debate on the REAL issue.

The funny thing (and it came up in oral argument) is if every claim to every gene were to be invalidated, Myriad could still sue anyone who tries to copy their patented method (but they won't have to since they have already reaped the benefits of their patents in establishing their business).

So we agree, mostly, although I think per se rules have unintended consequences, so I am against a per se ban on genetic diagnostic method claims.

"Ilk" is a bit harsh, however.

Thanks for the comment.

No Kevin and Eric your definitions are nonsensical. There is a clear division between an artifact and something that is a natural phenomenon or product of nature. A phenomenon is merely something that is perceived. A natural phenomenon is something perceived in nature, having no intervention by the hand of man. A natural product is the same. Once human intention enters the picture, altering a natural product or utilizing a natural phenomenon, then there is something that is new, non-natural, and perhaps inventive. You can read my thoughts on this here, if you'd like: http://www.bloomsburyacademic.com/view/Innovation-and-Nanotechnology/chapter-ba-9781849664783-chapter-007.xml;jsessionid=A4D227717476ECE94BDFF4A597EE6047

Simply put, I can see no common sense or even legally based distinction between a natural phenomenon and a product of nature, although there are clearly distinctions between nature and its products, and artifacts or artifactual processes. I agree the ACLU should have quoted Chakrabarthy correctly, but conflating natural phenomena and natural products is warranted both linguistically and ontologically.

Thanks, Kevin. Not if she takes after her geeky parents, but who knows, maybe coordination is not genetically inherited?

By the way, EG, the courts have only said that an isolated product of nature may be patent eligible, but in so doing they are not claiming that a product of nature is distinct from a natural phenomenon, as far as I can tell reading the precedent. Rather, it is the act of isolation that allegedly makes something natural no longer natural (which I have disagreed with). It is a strained reading, unsupported by the precedent, to argue that the courts have somehow distinguished between natural phenomena and products ofmnature per se.

Dear David: as always, we agree to disagree

"Simply put, I can see no common sense or even legally based distinction between a natural phenomenon and a product of nature."

David,

My distinction between "natural phenomena" and "product of nature" isn't nonsensical as you suggest. And OK, if you want to nitpick, what the courts have deemed patent-eligible is isolated "products of nature." So like Kevin, we'll have to agree to disagree. And its also your choice to drink the Kool-Aid proffered by the ACLU.

"Simply put, I can see no common sense or even legally based distinction between a natural phenomenon and a product of nature,"

It doesn't really matter if you can't. The courts created the distinction and they also can see the distinction. What you want to call something which has been acted upon by the hand of man yet is a derivation of something natural is what the courts call a "natural product". Simply adopt their terminology to make the conversation easier Dave.

A rose would smell as sweet by any other name and a natural product would still be a product derived from a natural object by the hand of man by any other name.

6 you aren't paying attention. I want to call anything that has been acted upon by the hand of man "not natural", or an artifact. That's not the distinction I challenge. Try reading more carefully and don't call me Dave. Show me where the court distinguished between anything other that that which becomes altered, through isolation and purification. No precedent distinigusihes between natural phenomena and products of nature, and neither would any disctionary or common sense definitions of the words warrant it. The court's terminology nowhere distingushes a natural phenomenon (which can be either an occurrent or a continuant) from a natural product. The distinction in the law and in common sense occurs when some human intention changes either a natural product or natural phenomenon (making it an isolated or purified product of nature or phenomenon, thus now an artifact, not a purely natural thing anymore). Thus, the claim that a natural phenomenon and a natural product are distinct entities is not borne out by reason or the law. Thus, the ACLU's sloppy quoting still is logical, although not accurate quoting.

And for the record, my argument against gene patents hinges upon my qarrel with the claim that "isolating" a gene from the rest of the genome truly creates an artifact given that the intention goes not to the form of the underlying sequence, but rather to defining borders that I argue already exist in nature. For the same reason, I argue that "isolated and purified" O2 would not be patent eligible although a new process for isolating and purifying it might be. My discussion in my Genewatch article and in my latest book clarifies my argument about the role of intention in defining artifacts, in case anyone is interested in pursuing the debate. I won't reiterate it here.

As a virtually lifelong and devoted card-carrying ACLU member (and that's a LONG life), I have been very unhappy for the last couple of years about the ACLU's crusade against gene patents. Sadly, ACLU exec Romero and other ACLU leaders seem not to understand what patents are all about. More specifically, Romero et al. apparently think that gene patents are basically just theft of the public's own genetic profiles. This misperception is a result of failing to appreciate that patents are rewards for inventors who bring their innovations forward for PTO consideration, and who MAY get such rewards for a LIMITED time period (typically 20 years from date of application). The patent system is authorized by the U.S. Constitution "to promote the progress of the useful arts", and does provide sensible incentives for inventors (and their employers) to use it. I have tried to explain all this to ACLU management, but they just don't seem to be interested.

Dear Peter;

Of course the ACLU isn't interested - have you seen their mailings on this issue? In view of its emotional impact, this is red meat for them, and I'm sure they will get a significant increase in contributions because of it.

One thing I think you need to realize - there is no rational debate here (at least with the ACLU); their position is "this is just wrong" on a philosophical level. They are entitled to their opinion, of course. In this blog, we have not tried to counter this argument (which is impossible) but rather set forth our belief that their position leads to outcomes that are at least as wrong (and in our view even more pernicious).

But we are under no illusions that anyone from the ACLU camp will be persuaded.

Thanks for the comment.

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