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« Court Report | Main | Biotech/Pharma Docket »

January 31, 2011

Comments

Uggg.... The academics love this debate because it fits into their theses of destroying the world order. In reality, gene "inventions" are just a routine product of robotic high-throughput screening. They are a "so what" invention that are entirely obvious. The courts should not bother with the esoteric arguments and just stick to basic patent principles. Folks might be surprised that the patent law will parallel their policy arguments and incidentally save the world from the Armageddon of gene patents.

C. Allen Black, Jr. Ph.D., J.D.

Have you read this paper by Heidi Williams? It suggests that the studies you cite are wrong: http://www.nber.org/~heidiw/papers/5_12_10a_hlw.pdf

that is, if one is prone to arguments based upon utility.

Dear David:

Yes, I did see that, and I need the time to understand it properly.

But I remember that there are a lot of assumptions built into her conclusions, and one naysayer among so many studies from so many countries and so many other researchers suggests to me that Heidi is wrong, rather than the other way around.

By the way, have you seen this:

http://www.youtube.com/watch?v=Fl4L4M8m4d0

As I recall your wife is a scientist - she might think it's funny.

Thanks for the comment.

Dear Allen:

Except, that "patentability shall not be negatived my the manner in which an invention is made." So if they are new (and, when the patents were filed they were) and useful (since the PTO requires evidence of a utility for the gene product), then I don't see how the argument in your comment gets over the statutory preclusion for "robot-produced" inventions (genes or anything else).

Keep in mind, Kubin was decided on its facts (and ones the court unfortunately got wrong in the first place) - I don't see a lot of Kubinesque rejections coming down from the PTO (at least ones that can't be distinguished).

Thanks for the comment.

A good article Kev, but you needn't approach the situation with such an attitude. Your basic premise about the problem never materializing until it is pretty much going away is interesting. But I will say this, while to an old timer like yourself 20 years seems like a day or two, to us youngsters 20 years seems like kind of a long time, even the 9 years from now till 2020 seems like a long time.

And, presuming you're right, and at the same time perhaps she is right, let us say the problem only really affects 2-3 years worth of research/diagnostics etc. around the years 2017-2023. Not a big huge deal, but still a deal.

Oh and also 101.

Oh and also right on Allen. You're probably right, and the fact that we have such absurdities like the ol' "not negatived by..." included in our law is testament to the destructive force that our legacy system leaves us with in return for whatever supposed benefits it provides. If, for instance, an "inventor" happens to be walking down the road of progression of the useful arts one day and finds an invention laying there, then it dam well ought be negatived by the manner in which it was made, as it was by definition obvious. Not to worry, KSR indicates that courts can tell that a reliance on that artifact in the law by attributing more to it than an overruling of flash of genius is very likely misplaced.

"Keep in mind, Kubin was decided on its facts (and ones the court unfortunately got wrong in the first place)"

Where, iirc you could never completely produce those facts upon which you would still apparently like to rely even unto this day. But keep soldiering on about that one Kev.

6,

You are obviously a patent minimalist in the likes of Douglas (minimal as in zero).

I do not want to assume that you do know that those with Primary responsibility for making the law (and that would not be the judges or justices) EXPRESSLY stated that your view was an incorrect interpretation of the law and thus made the law explicit so that such views would not gain traction.

As a fan of history, it is with some chagrin that I witness the historical cycle of anti-patent fervor being played out (yet again) with the Flash of Genius doctrine. The doctrine has been thoroughly discredited and only those who do not understand patent law gravitate to that doctrine.

"You are obviously a patent minimalist in the likes of Douglas (minimal as in zero)."

Oh come off it Skep. I create patents with my own two hands. And I don't believe I'm selling my soul to the devil, so to speak, when I do it.

"I do not want to assume that you do know that those with Primary responsibility for making the law (and that would not be the judges or justices) EXPRESSLY stated that your view was an incorrect interpretation of the law and thus made the law explicit so that such views would not gain traction."

Oh, you can assume that very safely. You can also assume that I read KSR just like everyone else did.

Now Skep, I have no desire to fight with you today. But come on now, don't go forgetting who drafted those laws. So far as I understand it, we may as well say it was the ABA et al. lawyer crowd including the soon to be judge Rich as a ringleader. Of course, they were pulling a few senator's strings, but everyone apparently knew good and well what was going on. Didn't I just get through saying that this relic left in the law is testament to the destructive force that our legacy system leaves us with? I think I did, so consider that rhetorical.

But like I said, we all have our views on these issues, there's no need to fight over it.

Oh, and yeah, I'm not that fond of FOG. But gravitating "towards it" is simply a natural response to our having drifted too far in the opposite direction. As I'm sure you're well aware.

In the debate on "gene" patents, the emotional appeal - e.g., ACLU action, van Overwalle article - seems to gain the upper hand, by playing on reader's sympathies and fears. One of the main difficulties in countering such arguments is that rationality and logic don't often carry the same force (or get headline attention). While I appreciate your clear analysis and critique, I struggle with how to counteract the emotional responses and especially, be pro-active. Unfortunately, it usually seems as if we're chasing the nay-sayers and thus, not making headway.

Dear lorac:

Well, I think it is important to dispel arguments based on falsehoods. Such as "who owns you?" Answer: no one (13th Amendment). Or "these patents hinder basic research." Answer: >9,000 basic research patents on BRCA1 and BRCA2 genes since the patents were granted. Or that patents deny access to testing or medicine to people who cannot afford them. Answer: insurance companies make those decisions, which are based on their bottom lines.

The other tactic is to describe the world that would exist if the ACLU gets its way - reduced access to medicine, fewer drugs, and diagnostic methods protected by trade secret rather than patent, so less disclosure and perpetual monopoly. Or that universities would be harmed, because corporations (foreign and domestic) will be able to simply steal the results of their research, rather than licensing it.

Those on this side of the debate make a mistake when they try to counter appeals to emotion with detailed explanations of two arcane areas - patent law and biotechnology. Better to "flip the script" on these arguments with the equally emotional argument that supporters of the ACLU are risking their grandchildren having poorer health care, poorer health and a lower life expectancy than we do.

Thanks for the comment.

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