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« Health Care Professionals Contend That Isolated DNA and cDNA Are Patent Ineligible | Main | The Federal Trade Commission Finally Wins One »

July 17, 2012


A nice picture of what is going on. If we consider the picture to have 5 depictions on the left and 3 on the right then taking the top one from the right yeilds a little something interesting.

Taking the thing depicted in the top right hand side to be a thing, which exists in our world, although sliced out as was done in the depiction at the bottom of the left side's depictions, one wonders what else you would do with that thing in the top right hand side other than chop out the
"exon code" to make some mRNA, and then perhaps go on to make some cDNA.

Kev tells us awwww why heck, you could take those little pieces of "exon coded material" in the upper right hand side and amplify them and do some stuff with them. That's true, you could do that. But then, you're not really using the whole of what we would consider "the BRAC1 gene" or "the exons encoding the BRAC1 gene", you're just using a little bit of it.

And it is precisely that question "what else would you do with the whole of what people call the BRAC1 gene, or the exons that so encode, other than things which infringe?" which will be dispositive of whether or not the claim preempts judicially excepted subject matter.

For the purposes of this comment I'm presuming that the cutting out the little isolated piece at the bottom of the left side is "done by man" as are the two steps at the bottom of the right hand side. But who can really tell save for someone with a background in this stuff? The people making the charts never deem it necessary to explain w tf they're doing to get what is in the picture in everyday language when it really wouldn't be rocket science to do so. They'll tell us that it is "spliccing" "modifying" etc. but is it that hard to just lay out what happens in one specific example?

Since when are hopes and expectations a basis for deciding the meaning of words in the patent language of the constitution ? Justices Scalia, Thomas and Alito are quite plain that only original intent matters, and everyone can take judicial notice that the founding fathers knew nothing of DNA and molecular biology. Outside of constitutional law, for decades now, employees of entities large and small have been told time and again that the the small print in obscure terms block their right to lifetime medical benefits or pension plans despite their very real and hopes and expectations backed by decades of work. See any employee handbook case. Similarly bleak fates have awaited state and federal employees or benefit recipients who were denied procedural or substantive "rights" because the language of a statute was interpreted to to make their rights conditional or discretionary upon judgments of others. See generally Goldberg v. Kelly, 397 US 254 (1970), and its progeny.

Opinion and briefs based on expectation and hopes of investment bankers are irrelevant - the law is what the law is, and there is no legitimate expectation until the Court explicitly rules on the meaning of the words. The fact that financiers have bet on patent rights is not a legally cognizable basis for a decision. Perhaps some day the Federal Circuit will accept that reality.

Query - how many patent lawyers have written opinion letters unconditionally assuring a molecular biology client that its gene patent will be granted, and that the patent will be upheld if challenged. If there are any such letters, I'd guess the writer long ago left the bar to pursue more appropriate work as a snake oil seller.

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