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USPTO Not At All Happy About Justice Department Saying Genes Shouldn't Be Patentable

from the internal-rift dept

Tue, Nov 2nd 2010 5:29pm — Mike Masnick

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

40 Comments

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Anonymous Coward, 2 Nov 2010 @ 5:36pm

The USPTO needs to be disbarred.
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Warren, 2 Nov 2010 @ 6:21pm

The United States Patent and Trademark Office needs to be restructured, rebuilt to what it once was.

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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Anonymous Coward, 2 Nov 2010 @ 6:34pm

I thought you couldn't patent things in nature. Genes, I would think, fall clearly in the category.
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The Infamous Joe (profile), 2 Nov 2010 @ 7:22pm

Re:
You're right, of course. What they mean by "isolated genes cannot be patented" is that the method for isolating a particular gene cannot be patented.

The court said, scarily enough, that modified genes *may* be patentable.
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Anonymous Coward, 2 Nov 2010 @ 7:33pm

The USPTO has gone rampant! Nothing can stop them as they patent anything and everything, and then patent those patents, and patent the patents' patents, spiraling infinitely out of control until the number of patents granted reaches infinity and a Patent Singularity occurs!
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Paul Hobbs (profile), 2 Nov 2010 @ 7:42pm

Maybe I don't get it
Why should the USPTO care whether it can patent genes or not? Doesn't that suggest they have a vested interest in patenting genes? I would have thought that they would be impartial on a question like this, and that they "simply" implement the rules/guidelines/regulations as legislated by the government of the day (or as mandated by the courts).

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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Anonymous Coward, 2 Nov 2010 @ 7:43pm

Funny, how they have an actual opinion on this. Isn't their job just to administrate?
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Common Sense, 2 Nov 2010 @ 7:50pm

If they're pissed off about this, doesn't that pretty much prove that they get under the table money from the people they approve patents for??
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Ryan Diederich, 2 Nov 2010 @ 9:19pm

I call...
I call the patents on the genes that cause blue eyes.

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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RandomGuy (profile), 2 Nov 2010 @ 9:24pm

Re: Re:
That's a good thing, because molecular biology overwhelming uses only a few methods for isolating genes. If anyone held a patent on that, they could hold the entire industry to ransom.

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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Alex Bowles, 2 Nov 2010 @ 9:29pm

Re:
Not necessarily. The position is a fairly severe rebuke, not just to the genetic issue, but to the larger idea that patents = progress.

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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Kingster (profile), 2 Nov 2010 @ 9:39pm

Re: Re: Re:
Except in the case of where those genes can't be controlled, like... Corn, Soybeans, and the like. Why should farmers, not wanting to grow with Monsanto, destroy their seed just because wind blew pollen from a Monsanto farm?

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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Anonymous Coward, 2 Nov 2010 @ 9:50pm

"The NY Times has an article quoting a bunch of outraged patent attorneys, who are worried about their own jobs more than anything else..."

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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Marcus Carab (profile), 2 Nov 2010 @ 10:18pm

Re: Re: Re:
There is, without a doubt, a lot of logic to your position.

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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marak (profile), 2 Nov 2010 @ 10:27pm

Re:
Patient Attourney.... Dedicated Professional.

Wow... just... Wow....
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Mike Masnick (profile), 2 Nov 2010 @ 11:11pm

Re:
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.

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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bikey, 3 Nov 2010 @ 3:44am

Re: Re:
No, that's not what they mean. They mean an isolated gene cannot be patented. If you have a new method of isolation, bring it on.
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bikey, 3 Nov 2010 @ 3:46am

Show me a government office without a vested interest and I'll...
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Oh THAT Brian!, 3 Nov 2010 @ 4:03am

How about this ...
I take out a patent for a service that registers new ideas, to help protect inventors.

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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Hephaestus (profile), 3 Nov 2010 @ 7:17am

Re:
"dedicated and respected professionals"

*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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Anonymous Coward, 3 Nov 2010 @ 7:41am

heres the way it should be
any gene that does not exist in nature that you "create" you can patent
anyhting found in nature PISS OFF, its prior art.
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Anonymous Coward, 3 Nov 2010 @ 8:31am

Re: Re:
While admitted to practice before the USPTO, I have not done so for many, many years. Likewise, I am not engaged in trial court practice of any sort, and this has also been the case for many, many years. Bottom line is that my livelihood does not depend in any way on what you inaccurately assume is the case.

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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Anonymous Coward, 3 Nov 2010 @ 8:32am

Re: Re:
He's too lazy and incompetent to compete in a free market and so he must take advantage of govt imposed competitive restrictions. What a loser.

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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Anonymous Coward, 3 Nov 2010 @ 8:33am

"The NY Times has an article quoting a bunch of outraged patent attorneys, who are worried about their own jobs more than anything else"

Sweet mind-reading abilities. You should get a patent on that.
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Anonymous Coward, 3 Nov 2010 @ 8:35am

Re: Re: Re:
The day that the mainstream media considers and properly (no strawman) discusses the anti - patent side is the day I might consider the pro patent side.
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Anonymous Coward, 3 Nov 2010 @ 8:37am

Re: Maybe I don't get it
My understanding is that the USPTO actually does not keep all the revenue it brings in. Rather, it funds other aspects of the federal government. I don't remember where I heard/read that, though.
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Anonymous Coward, 3 Nov 2010 @ 8:38am

Re: Re: Re: Re:
You accuse Mike of taking only one side but I don't see the same outrage against the MSM for only taking one side of the issue (the opposite side). You are here and you are free to present the pro patent side but the MSM, which gains its unlevel playing field from government imposed competitive restrictions, only considers one side of the issue and won't allow people like MM to discuss the issue on CNN or FOX or any of the stations. Yet, despite your freedom to present your side of the issue on this blog the pro patent side has yet to present one substantial argument or fact in their favor in all the time I've been reading this blog. Not a single substantial post I have yet to see. Only the same unsubstantiated and shallow and incompetent argument that I sometimes see from the MSM.
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Anonymous Coward, 3 Nov 2010 @ 8:40am

Re: Re:
Whatever you may think of this other commenter, he's right that your comment is just mean-spirited speculation.

It's not unexpected, at this point, but it's still annoying.
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Anonymous Coward, 3 Nov 2010 @ 8:44am

Re: Re: Re: Re: Re:
arguments *
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Anonymous Coward, 3 Nov 2010 @ 8:45am

Re: Re: Re:
"My reference to "both sides of the issue" has nothing to do with being pro or anti patent."

and why do you just automatically assume Mike hasn't considered both sides of the issue?
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dave, 3 Nov 2010 @ 9:29am

Re: Re:
why is that a bad question for them to ask? as the above posters have commented, what vested interest does ANY government agency have in maintaining itself? it all done at the instruction of the people... erm, in theory.
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Anonymous Coward, 3 Nov 2010 @ 9:30am

Re: Re: Re: Re:
Perhaps because if the other side had been considered it would have at the very least been discussed.

In fact, the only thing said about contrary views is to make demeaning remarks about both lawyers and the USPTO.
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Anonymous Coward, 3 Nov 2010 @ 9:49am

Re: Re: Re: Re: Re:
"Perhaps because if the other side had been considered it would have at the very least been discussed."

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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Anonymous Coward, 3 Nov 2010 @ 10:19am

Re: Re: Re: Re: Re: Re:
I did not say he has not considered "my" side because I do not have one in this instance. I am not sufficiently familiar with the art of biotech to express any opinion on the merits/demerits of whether or not an "isolated gene" is a compound within the meaning of Title 35.

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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Anonymous Coward, 3 Nov 2010 @ 11:14am

So modified genes should be patentable according to some...
What will this lead to?

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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TtfnJohn (profile), 3 Nov 2010 @ 12:49pm

Re: So modified genes should be patentable according to some...
As well as sue they bully, too, if the farmer so much as lets a seed escape to a neighbouring field.

Now THAT'S how to feed the world, right?!!
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Anonymous Coward, 3 Nov 2010 @ 3:39pm

Ramones spoof
"We're a happy family! We're a happy family!
We don't let go!"
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RandomGuy (profile), 3 Nov 2010 @ 7:02pm

Re: Re: Re: Re:
"Just wait until you get some genetic modification done. When you have a kid, and that trait is carried forward [...]"

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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Anonymous Coward, 3 Nov 2010 @ 8:01pm

Re: Re: Re: Re: Re: Re: Re:
"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."

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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Anonymous Coward, 3 Nov 2010 @ 8:07pm

Re: Re: Re:
Ok, well.. why not put it out there? what's your Name, who are you? lets look into your assertion of non-practice in the IP field of law.
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