USPTO Not At All Happy About Justice Department Saying Genes Shouldn't Be Patentable
from the internal-rift dept
Last week, the Justice Department surprised a ton of people by filing an amicus brief saying that isolated genes should not be patentable. The NY Times has an article quoting a bunch of outraged patent attorneys, who are worried about their own jobs more than anything else, but also has some tidbits suggesting that the Patent and Trademark Office is not at all happy either, despite the fact that they're both part of the same administration. We noted in our original post that there must have been quite the political battle, and as will often happen, the losers appear to be griping. The USPTO has said that, even though the very same administration it's a part of says isolated genes shouldn't be patentable, it will continue to grant such patents until a court tells them not to (which, er, is what the district court did). The article also quotes a lawyer who spoke with USPTO director David Kappos, and noted that Kappos "seemed chagrined" at the situation. That seems like a polite way of saying that the USPTO is pissed off.
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Filed Under: gene patents, patents, politics
Companies: justice department, uspto
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What exists today and in recent decades has been more of a RubberStamp Office than actually thought given to what is claimed as an original idea that is not trivial to originate.
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The court said, scarily enough, that modified genes *may* be patentable.
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I'm all for naturally occuring genes to be declared unpatentable (as is the case with rocks, trees, rivers, and other naturally occuring things) - but why shouldn't modified genes be patentable? They're a new creation.
Just like the arranging of materials into a functional device can be patented (ie; an invention), surely the arranging of DNA into a functional (and novel) gene could also?
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Just wait until you get some genetic modification done. When you have a kid, and that trait is carried forward, you'll have to sign a EULA at the kid's birth, and probably pay some exorbitant fee. And... What happens if you refuse to pay? Does the company get your kid?
Man. We took that step onto a slippery slope.
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That's not how it works. Genetic modification to a living person (gene therapy) only affects somatic cells, not the germ line. This means that the egg or sperm cells retain the original, unmodified genome sequence, so it is not passed on to future generations. Most geneticists regard modification of the germ cell lines to be as ethically abhorrent as human cloning.
But you bring up a valid point regarding gene dispersal. I have heard cases of farmers being prosecuted for 'gene piracy', when their crops have become inadvertently contaminated with Monsanto genes.
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But I think the simple fact is, now that technology has brought us to the level of genetics - the delicate chemical underpinnings of everything we call life - some of our traditional views on the rights that come with invention need to be seriously reevaluated. The potential dangers of gene manipulation (especially when it comes to crops) are so huge that any and all regulations pertaining to the field need to be examined in great detail.
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Maybe I don't get it
Presumably they charge a (hefty?) fee when someone lodges an application for a patent, and perhaps they will lose out on revenue if no-one bothers to apply for gene patents. But are they a profit centre or a public service?
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Re: Maybe I don't get it
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That's the gist of the opposition here; not only do gene patents this seem ethically dubious, but worse, it looks like they may be counterproductive.
If a field this conspicuous gets removed from the patent arena, then undergoes an explosive renaissance as a result more people will be asking about what other fields could enjoy a major economic boost if the governing IP rules were curtailed.
That's a bad question for the USPTO to be fielding at the best of times. In the midst of a protracted economic slump, it's a live grenade.
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I call...
And the XX chromosome, thats mine too. I own every female in the country. They havnt been paying their licensing fees, however, and they will be receiving cease and desist letters shortly.
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This is a gratuitous and totally unwarranted slap in the face of dedicated and respected professionals that lacks even a scintilla of evidentiary support.
I would urge you to learn both sides of the issue to understand what is at stake, but that would be a futile gesture until such time as you are willing to put your obvious bias aside.
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Wow... just... Wow....
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Funny that you, of all people, would say that, when you are the one who has profited from the patent system for years, will stop at nothing to insult me and put me down with childish attacks -- especially on other blogs (where you conveniently are willing to sign your name, but for some reason say you can't here because of "cookies" in your browser).
I understand what's at stake. Your livelihood.
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My reference to "both sides of the issue" has nothing to do with being pro or anti patent. It is technology associated. The technology is complex, and many of those jumping in and expressing opinions (such as the ACLU, the DOJ, etc.) misunderstand much of what is going on. Before proclaiming that an isolated gene is a product of nature, it helps to understand what it is, how it was created, and how it is beneficially used. On the other side of the argument, there are many who are experts in the technology who express pro and con positions that each merit serious consideration.
Unless the notion that patenting an isolated gene is bad, bad, bad because it stifles innovation, all any discussion will comprise is people talking past, and not to, each other.
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and why do you just automatically assume Mike hasn't considered both sides of the issue?
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In fact, the only thing said about contrary views is to make demeaning remarks about both lawyers and the USPTO.
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How does this make sense? He has discussed the other side, he has criticized it, which requires considering it. and you're free to argue in favor of your side and he will likely read your argument (as he seems to) and consider them. The problem is that you have yet to provide anything substantial to support your position. How is that his fault? I'm still waiting for you to do it and the most you have come up with is the allegation that Mike hasn't considered your side. That's not a substantial argument in favor of your side. Just because someone disagrees with your position doesn't mean they haven't considered it.
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There are, however, such experts on both sides of the issue, and to direct personal criticism at one on the side advocating a position with which this site happens to disagree does nothing to educate the readers here of what this case actually entails.
If you are inclined to follow up on it, discussions that span pro and con can be found at any number of sites, including Patently-O and Patent Docs.
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The only one that has done nothing to educate the readers of anything you say, and has only accomplished the task of wasting our time, is you.
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To the extent that uncontrollable incompetence (ie: incompetence not due to illegal drugs or alcohol) is the problem, we have a welfare system for people like him. Giving him patents aren't the solution.
To the extent that it's laziness that's the problem then I have no sympathy for him. He shouldn't be allowed to take advantage of govt imposed competitive restrictions to compensate him with money that he wants to make but won't due to his laziness.
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It's not unexpected, at this point, but it's still annoying.
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*gasp* - *wheeze* - *laugh* please stop making me laugh I tore a muscle working out yesterday.
"I would urge you to learn both sides of the issue to understand what is at stake"
Actually a couple things are at stake (other than your job, I am assuming you are a lawyer from your phrasing). The primary thing that is at stake is the cost of medicines and medical testing the world over.
Testing wise if you can't patent genes then you can't patent chip based genetic testing and screening of a specific gene. This will reduce the cost of medical testing in a huge way over the next 5-10 years. Imaging one drop of blood and every test imaginable is run on it. No huge lab costs, no huge insurance bill from endless test, no wasted time. All in all this is a good thing.
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How about this ...
Then, when the USTPO rubber stamps it, I claim patent infringment and demand that the USTPO shuts down. Oh, the court fights would be memorable! They would claim that it couldn't be enforceable, since prior art existed, and our counter claim would point to all of the recent battles where prior art didn't seem to matter...
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heres the way it should be
anyhting found in nature PISS OFF, its prior art.
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Sweet mind-reading abilities. You should get a patent on that.
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So modified genes should be patentable according to some...
Company M (lets call them Monstranto) identifies a dormant gene (already existing in the genetic material) for turning regular wheat into 'super wheat' which produces 500% more per acre than traditional wheat.
Should company M be allowed to patent wheat containing that active gene? And then sue any farmers that dare to create/grow their own version. They didn't actually create anything, just figured out, hey, if we turn on this switch in the genetic code, this wheat will be better.
Is that really something that should be patentable?
Oh wait... they already did it with soybeans...
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Re: So modified genes should be patentable according to some...
Now THAT'S how to feed the world, right?!!
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Ramones spoof
We don't let go!"
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