"Colbert Report" Enters Gene Patenting Fray

    By Donald Zuhn --

On last Thursday's "Colbert Report," host Stephen Colbert turned his attention to the Association of Molecular Pathology v. U.S. Patent and Trademark Office case that was decided on March 29.  Pointing to the result in the BRCA1/2 gene patent case, Mr. Colbert said he had found "a reason to be disappointed in the Federal benchwarmers," and noted that the decision would be "a huge blow to the biotech industry."  The Comedy Central comedian said that he was "furious at the ACLU," and instead was "with Kevin Noonan here . . . the man who defended Myriad's right to patent the genes."  By defending Myriad, Mr. Colbert was referring not to the District Court litigation, but rather Dr. Noonan's appearance on "60 Minutes" earlier this month (see "'60 Minutes' and 'Newshour' Take Different Approaches to Covering Gene Patenting Story").  Mr. Colbert then played the portion of Dr. Noonan's interview in which he argues that patents are necessary in order to promote investment.  Now, Patent Docs is well aware that the "Colbert Report" is a satire of news shows that can be found on a certain conservative cable network, and that there is a possibility that Mr. Colbert may actually side with the plaintiffs and the ACLU.  However, when one strips away the jokes, the segment still makes a good case for gene patenting (or at least a better case than "60 Minutes") -- other than the part about 401 Man Seed knock-offs, of course.

The "Colbert Report" segment on gene patenting can be viewed below:

The Colbert Report	Mon - Thurs 11:30pm / 10:30c
Formula 01 Liquid Genetic Material
www.colbertnation.com
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Comments

[David Koepsell]

Of course Colbert was mocking Kevin, or did you also think he was heaping praise on George W. Bush at this event? http://www.youtube.com/watch?v=qa-4E8ZDj9s

[Kyle Jensen]

But, heck -- what an honor to be lampooned by Cobert. Obviously, the 60m story was *highly* edited and the deck pre-stacked. (That is, they were not fair to KN & did not cover the Myriad/USPTO arguments sufficiently.)

[Feigin - NY - NJ Patent & Trademark Attorney]

Something is wrong when mock-news covers more serious news than real news does.

[Scott]

"..the segment still makes a good case for gene patenting" if you mean that it clearly argues that economic rather than humanitarian motives should take priority when considering human health care as a social, cultural, personal, spiritual, and moral imperative. I'm glad we've cleared that up. Just keep your wits about you. This is business.

[Dick Evans]

I believe that the real patenting distinction should be between basic research and real utility. I also believe that at least since the year 2000, progress in nucleic acid sequencing and in nucleic acid synthesis, has made obvious all "inventions" with claims directed simply at isolated sequences from easily accessible life forms. The patentability bar should now be much higher.

[Kevin E. Noonan]

Dear Scott:

I sympathize with the sentiment in your comment - but I have a different view.

I think we should try to arrange things to promote commercialization of inventions as rapidly and efficiently - in an economic and moral sense - as possible. In this country at this point, that means protecting inventions with patents. There are other ways of doing it, but having spent a century finding out what doesn't work, I don't think it's profitable to revisit those failed systems.

But remember, patents are finite. One of the differences between a patent on a widget or a cell phone and the patent on a drug or a diagnostic test is that when the latter expire, there is still a market that benefits from expiration of the patents - this is the basis for the generic drug industry. (They do not innovate, they do not discover, but the pharmaceutical and biotechnology companies care for them by providing drugs that they can copy at (sometimes) lower cost to the consumer.)

After all, the Myriad patents invalidated with such fanfare expire in 2014, for all time - and as I said in the piece, the "other labs" that can do the test more cheaply can do so in large part because Myriad has pioneered in this space.

So while I think your version of the world might be a happier place, I also think it would be a more diseased one, or at least one where these types of inventions were delayed in coming to market. And I think that's immoral.

Thanks for the comment.

[Kevin E. Noonan]

Dear Dick:

You bring up a good point - the distinction between what is patent-eligible and what is patentable. (I understand we get to the same place when we answer in the negative for both, but there are plenty of things that are either one or the other but not both, and so I think it's important to make the distinction.)

It is possible that a gene might be obvious under In re Kubin and thus not patentable, but that doesn't mean that all genes should be unpatentable - it requires a case-by-case assessment. For example, in Kubin (and in your hypothetical) merely isolating a gene that encodes a known protein should be unpatentable (for obviousness at least). While I think there are some additional criteria (for example, that a cell or tissue source that expresses a sufficient quantity of the gene be known), I will concede that these circumstances may exist.

But most of the gene patents since 2000 are not for known genes - they are for genes whose existence was unknown prior to their discovery during the Human Genome Project. Indeed, the greatest barrier to patenting these genes is providing a utility for the protein they encode. So I find it hard to understand how a previously unknown gene encoding a previously unknown protein whose utility has been elucidated by an inventor should be unpatentable. Unless you take the "product of nature" argument from the Myriad case as dogma. But then I think there are greater problems with the approach.

Thanks for the comment.

[Gerry J. Elman]

Judge Sweet happened to issue this decision on March 29th, just a few hours before this year's Passover Seder, when Jews traditionally ask "Why is this night different from all other nights?"

But on this day, we also got a purported answer to "why is a polynucleotide different from all other molecules?" namely "because it contains biological information."

Okay, that's nice, but is that a scientific distinction that should support the statutory unpatentability of a novel and nonobvious polynucleotide, while allowing patentability of other natural products such as adrenaline, Taxol and tetracycline?

I guess it would be if you accept as science that there's a Higher Power that wrote the "information" into the genome. [Compare Richard Dawkins on The God Delusion with Robert J. Sawyer's novel Calculating God.]

But didn't a federal judge hold in 2005 after a lengthy trial that "Intelligent Design is not science"? And, oh yes, wasn't that conclusion vigorously spearheaded by .... the ACLU? http://en.wikipedia.org/wiki/Kitzmiller_v._Dover_Area_School_District

Hmmm.

For some more on this, see my posting at http://elman.com/2010/04/what-subject-matter-is-patentable/