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« Myriad Genetic Database Under Siege | Main | Biogen Idec, Inc. v. GlaxoSmithKline LLC (Fed. Cir. 2013) »

April 16, 2013

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Hey Kevin,

After you're experience with 60 Minutes (CBS), you're a brave soul to "go into the lion's den" again, this time PBS. And well done!

Matloff, like too many others, believes this research and especially the development of genetic testing, like money, grows on trees (perhaps a bad analogy now that SCOTUS has been exposed to "leaf plucking" and "making bats out of trees" analogies in Myriad). As you and I understand, it won't happen or will simply be driven "underground" in the business world which will then resort to "trade secrets" where the storehouse of valuable commercial knowledge will simply shrink.

"Matloff, like too many others, believes this research and especially the development of genetic testing, like money, grows on trees (perhaps a bad analogy now that SCOTUS has been exposed to "leaf plucking" and "making bats out of trees" analogies in Myriad). As you and I understand, it won't happen or will simply be driven "underground" in the business world which will then resort to "trade secrets" where the storehouse of valuable commercial knowledge will simply shrink."

So let's just say that you're right, would you not consent to a bare tiny tiny experiment like this in the obscurity of gene claims so that you guys could then rush to congress in 5 years time and say: "See the empircal data on how much disclosure in this tiny part of genetics has fallen? We must reimplement the patenting of genes so that the disclosure will go back up!"

Would that not be eminently reasonable as an option?

And let's just say that perhaps disclosure does not drop, much to your dismay and chagrin, and then you don't have to run to congress and demand that gene patents be reimplemented.

I mean surely, unless we're all so interested in nothing other than the bottom line of (mostly corporate) profits then what is the problem you guys have with such a tiny experiment playing out in the policy field? Are you worried that if disclosure of these sorts of things do not drop then the precedent will lead to similar experiments in other areas slowly chipping away at other arts or what?

Reading the oral argument was frustrating. It would've been nice to have read it and been left with some confidence that the Court and the advocates had a command of the issues and the technology. Not the case. I mean "use patents", "snipping", and the consistent swapping of the terms "patentable" and "patent eligible" should leave some readers...skeptical.

I can concede that I am biased toward the general patent eligibility of isolated DNA which, by the way, is an isolated chemical polymer which does not exist in nature. I am still unsatisfied that ACLU/AMP has pointed to where such isolated chemical polymer molecules exist in nature. Point to it, put your finger on it. Don't tell me to go bake cookies, because I'll tell you that the isolated DNA IS the patent-eligible cookie, and the salt, eggs, flour, are the "natural building block" monomeric nucleotides that comprise the polymeric DNA sequence. It's just frustrating, I guess.

I also find troubling the policy issues raised by AMP/ACLU about "patents to isolated DNA impede basic research." Kevin and others like Chris Holman have identified volumes of literature relating to BRCA research that have been undertaken and published during the lifetime of these patents. To what has the ACLU/AMP cited as support of that argument - beyond the prohibition of competing commerical diagnostic labs (operating outside of any agreement with Myriad) from providing second opinions? Shouldn't AMP/ACLU have to meet some threshold evidentiary requirement in light of the extant BRCA literature?

And, if we are in fact currently living in the era of preemption, is it so bad? Aren't significant advances being made in medicine and healthcare? And what would be better (that is, where is it currently better such that the US should consider adopting it)? In the era of 'no gene patents' would we have benefitted from 12,000 peer-reviewed research articles instead of 8,000?

Frankly - to 6's question - I would not be comfortable with any route forward that incorporates an, 'if you don't like it, write your local Congressperson' schema. See, e.g., the rapidity with which they have acted on gun regulation, which only enjoys about 90% population consensus (or so I'm told).

I guess my over-arching point is that if we've arrived to where we are under the current system, shouldn't there be some threshold amount of evidence that would indicate something else would be better (and preferably knowing what the 'something else' is)?

Paul San Quentin states "and the consistent swapping of the terms "patentable" and "patent eligible" should leave some readers...skeptical."

Which brings a smile to my otherwise dour countenance.


Why am I dour? Will the Supreme Court recognize that 101 was meant to be a wide open gate, with only certain very narrow exceptions?

I am...

Continue remain "skeptical," Skeptical.

"And, if we are in fact currently living in the era of preemption, is it so bad? "

Nah, it isn't soooooo bad. But it could be better.

"In the era of 'no gene patents' would we have benefitted from 12,000 peer-reviewed research articles instead of 8,000? "

I presume, and not only that, perhaps we'd be able to unmutate the BRCA gene and thus undo the propensity to breast cancer in vivo (lol yeah right) by now. Point is though, you never know what discoveries are being missed out on when labs are shuttered merely because the government wishes them to be shuttered.

After having watched the video and read the comments, Dana Milbank's conclusion (see http://koshergoldfish.blogspot.com/2013/04/washington-post-barrage-in-what-can.html) that the Court is "deep in the weeds" seems to apply to Dr. Noonan, as well as EG, 6, Paul, and Skeptical. The main issue is how do we provide enough profits to researchers while guaranteeing open access to the results of that research? The two goals should be weighed against each other. But ultimately, access to healing should trump private profit. If a very narrow interpretation of patented property rights is applied here, we’re not going to fulfill the value of maximizing healing. The desire to maximize profits should not be allowed to trump maximizing healing. For details and quotes see http://koshergoldfish.blogspot.com/2013/04/the-jewish-daily-forward-weighs-in.html

Arthur Gershman states "The main issue is how do we provide enough profits to researchers while guaranteeing open access to the results of that research?"

Thank you Mr. Gershman for the keen, if not alternative, viewpoint of the legal landscape.

I am not sure what to make of your status as an agent in the 2 series, but combined with the other propaganda available on the link to your name, in asking whether I would trust your view of the issues to be objective, well, I will remain...

Dear Arthur:

It might be nice to live in the world you posit, but we don't. Until we do, espousing policies that won't result in the most benefit for the most people (regardless of whether someone profits from it) seems the wrong thing to do.

Thanks for the comment.

Dear Kevin,
Thank you for responding to my post.
Your "greatest good" ethical reference makes it necessary for me to relate the parable of the kosher goldfish. The parable tells the story of the Brooklyn family who, living in a tenement, was reduced to bringing home a goldfish as a pet. Inevitably the fish starts swimming sideways, eliciting a panicked call to the wise Uncle Moshe. Uncle Moshe takes one look and demands, "Give me the kosher salt." Sprinkling a little in the goldfish bowl causes great awe as the goldfish revives. Upon the third such treatment in Moshe's absence, the goldfish succumbs and floats belly up in the bowl. Moshe is brought in for a final consultation. His pathology report: "Too much salt."
So it is with reluctance that I bring to the discussion the mention of the Holocaust.
A panel of rabbis, speaking to the issues raised by the Harvard mouse, observed that obtaining patents on higher order life forms is dehumanizing and reminiscent of the abuses which led to the Holocaust. I hope I do not bring too much salt when I say that comparing the German population to the Jewish population in the WWII era, the Holocaust may have brought the greatest good the greatest number. But was it ethical? This is the world I live in and it's not all lotuses and roses.

Dear Arthur:

Please read "Hitler's Willing Executioners" - the comment about the Holocaust being the "greater good" is too ghastly and offensive for me to comment on it. Frankly, you should be ashamed

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