Deadly Monopolies: New Book Explores How Patenting Genes Has Made Us Less Healthy

from the stop-the-scourge dept

Fri, Oct 28th 2011 6:30pm — Mike Masnick

A few yeas ago, David Koepsell, came out with the excellent book, Who Owns You?, with the subtitle, "The corporate gold rush to patent your genes." It looks like there's now a new book out exploring the same subject, by medical ethicist Harriet Washington. The book is called Deadly Monopolies, subtitled: "The shocking corporate takeover of life itself--and the consequences for your health and our medical future." A mouthful in the subtitle, but it would seem these two books belong next to each other on the bookshelf.

NPR has an excellent overview of this new book, highlighting the key point: that patenting genes is making us less healthy:

Restrictive patents on genes prevent competition that can keep the medical cost of treatment down, says Washington. In addition to genes, she also points to tissue samples, which are also being patented � sometimes without patients' detailed knowledge and consent. Washington details one landmark case in California in which medically valuable tissue samples from a patient's spleen were patented by a physician overseeing his treatment for hairy-cell leukemia. The physician then established a laboratory to determine whether tissue samples could be used to create various drugs without informing the patient.

"[The patient] was told that he had to come to [the physician's] lab for tests ... in the name of vigilance to treat his cancer and keep him healthy," says Washington.

The patient, a man named John Moore, was never told that his discarded body parts could be used in other ways. He sued his doctor and the University of California, where the procedure took place, for lying to him about his tissue � and because he did not want to be the subject of a patent. The case went all the way to the California Supreme Court, where Moore lost. In the decision, the court noted that Moore had no right to any share of the profits obtained from anything developed from his discarded body parts.

And, of course, the book pins many of the problems on a familiar culprit that we've spoken about many times before here: the Bayh-Dole Act, which pushed Universities to start locking up research, rather than sharing it with the world:

But since the 1980s, researchers at universities and the pharmaceutical industry have become collaborators in ways that they weren't before, says Washington. The 1980 Bayh-Dole Act gave universities and small businesses control of their intellectual property � which allowed them to sell their patents.

"Before the 1980s ... most researchers worked within a university culture which encouraged free discourse without necessarily a potential product in mind," she says. "It encouraged collaboration and data-sharing, and the values held by medical researchers were values of academic excellence, medical achievement, altruism ... these were the motivations. Now that the patent is based upon the value of exclusivity, the corporation discouraged very strongly and prohibited data sharing. ... This culture of the corporation has overtaken the medical research culture."

We've been reporting on this stuff for years, and it's good to see it getting more publicity through books like this. Unfortunately, it seems unlikely to change in any significant way in the near future... unless, perhaps, the Supreme Court actually comes through and wipes out gene patents.

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Filed Under: gene patents, harriet washington, patents

73 Comments

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out_of_the_blue, 28 Oct 2011 @ 7:03pm

One could wish for more generous doctors...
"In the decision, the court noted that Moore had no right to any share of the profits obtained from anything developed from his discarded body parts."

But unless Moore created the leukemia, then he had no claim on what someone else developed to treat it. IF wildly successful /later/ then the doctor should feel morally bound to re-imburse Moore for cost of treatment, but as Mike would hold, Moore didn't put any money into the research.

I'll be back shortly as schoolmarm with a post on some grammar here because there are several sentences just plain wrong.
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- McCrea (profile), 28 Oct 2011 @ 8:45pm
  
  The Anti-Marm
  " ...there are several sentences just plain wrong."
  
  Any errors are not likely to be much worse than your
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Anonymous Coward, 28 Oct 2011 @ 7:27pm

Considering that part of the patent bargain is that the patentee must disclose the invention to the world, it doesn't make a lot of sense to complain that patents are about keeping things secret and not sharing.

And if you want genes to not be patentable, talk to Congress, not the Court. Why in the world you think the Court will lead the charge on that change is anyone's guess. That's Congress's job.
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- Anonymous Coward, 28 Oct 2011 @ 7:29pm
  
  Re:
  "Considering that part of the patent bargain is that the patentee must disclose the invention to the world"
  
  Dictating to others what they can't do and labeling it 'disclosure' doesn't change the fact that this is purely dictation.
  [ link to this | view in chronology ]
- Anonymous Coward, 28 Oct 2011 @ 7:48pm
  
  Re:
  Patents are no more a form of disclosure than government established taxi cab monopolies. When the government tells people that they can't compete with the government established taxi cab monopolies, that's not a form of disclosure. It doesn't do anyone any good. It's just a form of telling others what they can't do.
  
  Patents are no different. All they are is a form of telling others what they can't do. Companies have large patent portfolios and many of their patents are often not even directly tied to any products that they produce. No one can look at any product that a company produces and figure out how that product works based on a companies patent portfolio. The corporations get the best of both worlds, they get a government established monopoly and they get to avoid disclosing how their products work. How their products work are often a form of trade secret. People often can't look at a patent and tell us what product that patent is disclosing. All we know is that a company produces a bunch of products and that it also has a bunch of patents. How those products work are still kept secret from the public. and in the case of patent trolls, again, the inter-workings of non of its products are being disclosed through those patents since it doesn't produce anything. If a company wants to invent a new product, it's not going to disclose the inter-workings of its product regardless of the existence of our patent system. It doesn't have to, it can have it both ways.
  
  Look at how many patents Microsoft has, yet their software is still closed source, proprietary, and covered by copy protection laws. The inter-workings routers, DVR's, cell phones, their instruction sets, and so much other technology, is proprietary and hidden from the public yet these corporations have patents. and when someone even tries to crack TI calculators and figure out how their processors work (none of this is disclosed to us) so that they can load alternative firmware onto it, TI sues them. Many of the new N-Spire TI calculators are proprietary, the instruction sets of their processors and the software and source code and application interfaces are not disclosed. So much software is proprietary and closed source. The truth is, companies don't disclose how any of this works and when people reverse engineer it (like the PS3) in ways that allow them to create mods, they get sued. This isn't about disclosure. Companies don't disclose anything about how their products work to the general public, yet they still get patents.
  [ link to this | view in chronology ]
  - Anonymous Coward, 28 Oct 2011 @ 7:50pm
    
    Re: Re:
    The inter-workings of routers, ... *
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  - Anonymous Coward, 29 Oct 2011 @ 6:56am
    
    Re: Re:
    Patents are no more a form of disclosure than government established taxi cab monopolies. When the government tells people that they can't compete with the government established taxi cab monopolies, that's not a form of disclosure. It doesn't do anyone any good. It's just a form of telling others what they can't do.
    
    Huh? You aren't making a lot of sense. A monopoly in the sense of taxicabs is nothing like the monopoly property right given to a patentee. A patentee must disclose the invention patented. Your crazy ramblings otherwise do not change this fundamental feature of the patent system.
    [ link to this | view in chronology ]
    - abc gum, 29 Oct 2011 @ 9:02am
      
      Re: Re: Re:
      "A patentee must disclose the invention patented"
      
      Except they don't. A large number of recent patents vaguely describe concepts which cover a wide swath with a broad brush. These patents are then used in an attempt to extort money or cross licensing from their competitors based upon the threat of having to pay for a big law suit in E. Tex.
      [ link to this | view in chronology ]
      - Anonymous Coward, 29 Oct 2011 @ 9:39am
        
        Re: Re: Re: Re:
        Except they don't. A large number of recent patents vaguely describe concepts which cover a wide swath with a broad brush. These patents are then used in an attempt to extort money or cross licensing from their competitors based upon the threat of having to pay for a big law suit in E. Tex.
        
        You appear to just repeating some FUD you heard. Can you point to a single patent as an example of one that doesn't disclose the invention? Considering that disclosure is a prerequisite to getting a patent, I sincerely doubt you can find a patent that lacks disclosure.
        [ link to this | view in chronology ]
        
        abc gum, 29 Oct 2011 @ 9:55am
        
        Re: Re: Re: Re: Re:
        "You appear to just repeating some FUD you heard."
        
        It is neither Fear, Uncertainty or Doubt.
        
        "Can you point to a single patent as an example of one that doesn't disclose the invention?"
        
        They disclose in vague terms things which could be interpreted in many ways. Their claims are non specific and written such that they can claim their patent covers much more than originally intended.
        
        "Considering that disclosure is a prerequisite to getting a patent, I sincerely doubt you can find a patent that lacks disclosure."
        
        The disclosure is bullshit and that is the problem. I'm surprised that you are unaware of it.
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        Richard (profile), 29 Oct 2011 @ 3:35pm
        
        Re: Re: Re: Re: Re: Re:
        "I sincerely doubt you can find a patent that lacks disclosure."
        
        The disclosure is bullshit and that is the problem.
        
        Yes it is! How about the case where the inventor admitted that he couldn't recognise or understand the so called "disclosure" that was written for him by the patent attorney.
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        Anonymous Coward, 29 Oct 2011 @ 3:47pm
        
        Re: Re: Re: Re: Re: Re: Re:
        I doubt it was the disclosure that was not understood, but rather the claims. The former is based upon what has been specifically provided by an inventor, whereas the latter is crafted in a manner to conform with various requirements imposed by law.
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        Richard (profile), 29 Oct 2011 @ 3:59pm
        
        Re: Re: Re: Re: Re: Re: Re: Re:
        I doubt it was the disclosure that was not understood, but rather the claims.
        
        As I recall it was the whole of it. After all the claims are the patent.
        
        Also as I have noted frequently elsewhere. Anything that CAN be kept secret IS kept secret (eg Rolls -Royce compressor blade manufacturing process. Patents are taken out where use of the invention would necessitate disclosure anyway. Or where the inventor knows in his heart that the invention is obvious. Therefore in practice patents do not create any useful disclosure that would not happen anyway.
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        Anonymous Coward, 30 Oct 2011 @ 10:54pm
        
        Re: Re: Re: Re: Re: Re: Re: Re:
        How did they do it then?
        http://appft.uspto.gov/netacgi/nph-Parser?Sect1=PTO2&Sect2=HITOFF&p=1&u=%2Fnetaht ml%2FPTO%2Fsearch-bool.html&r=1&f=G&l=50&co1=AND&d=PG01&s1=gene&OS=gene& amp;RS=gene
        
        You are not a bio-engineer that is fine.
        
        http://www.freepatentsonline.com/8011991.html
        
        That is one invention that everybody can understand, how to build a snowman.
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        Anonymous Coward, 30 Oct 2011 @ 10:56pm
        
        Re: Re: Re: Re: Re: Re: Re: Re:
        Patented toast.
        
        http://www.google.com/patents/about/6080436_Bread_refreshing_method.html?id=IpwDAAAAEBAJ
        
        This one is another patent that doesn't need a very specialized mind to understand it.
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        Anonymous Coward, 29 Oct 2011 @ 1:02pm
        
        Re: Re: Re: Re: Re:
        "Can you point to a single patent as an example of one that doesn't disclose the invention?"
        
        I'm going to disclose to you that I want $100. Now give me $100 in return for my valuable disclosure.
        
        IP maximists can keep their disclosures to themselves. Abolish patents!
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    - Anonymous Coward, 29 Oct 2011 @ 9:14am
      
      Re: Re: Re:
      Both are monopolies though.
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      - Anonymous Coward, 29 Oct 2011 @ 9:40am
        
        Re: Re: Re: Re:
        And Monopoly is a board game, but so what? How does a city granting a taxicab company a monopoly of sorts have anything to do with whether a patentee must disclose his invention? You aren't making any sense at all.
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        Anonymous Coward, 29 Oct 2011 @ 12:53pm
        
        Re: Re: Re: Re: Re:
        "How does a city granting a taxicab company a monopoly of sorts have anything to do with whether a patentee must disclose his invention?"
        
        Telling someone that they can't do x is simply a form of authoritarianism. Labeling it 'disclosure' doesn't change what it is. A dictator must disclose to others the rules that the dictator wants them to follow. Labeling dictatorship disclosure doesn't change anything.
        [ link to this | view in chronology ]
    - Anonymous Coward, 29 Oct 2011 @ 12:51pm
      
      Re: Re: Re:
      "A patentee must disclose the invention patented."
      
      and a taxi cab monopolist must disclose that which it has a monopoly on. Same thing. It's just a form of government imposed dictatorship. Labeling it 'disclosure' doesn't change what it is.
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      - wvhillbilly (profile), 29 Oct 2011 @ 5:25pm
        
        Re: Re: Re: Re:
        Disclosure is part of the bargain of a patent. The patentee gets a 17 year monopoly on his invention in return for disclosing how his invention works and how to build it. After the patent expires the invention becomes public domain and anyone may produce and sell their own version of the invention. If the patentee refuses to disclose or so obfuscates his disclosure that no one can figure it out, then he essentially gives himself a permanent monopoly. Happens a lot with software patents.
        
        Failure to disclose is kind of like if I send a mail order company X amount of money for a quality brand name hair clipper they advertised and they send me instead of the clipper a pair of cheap scissors. I bargained with them for a certain item at a certain price, sent them what they asked for (my end of the bargain) and they broke their end of the bargain by sending me a cheap substitute for what they promised me.
        
        If I recall correctly the disclosure part of the bargain is written into patent law the same as the 17 year monopoly granted to the patentee. If the patentee substitutes an obfuscated disclosure no one can make heads or tails of, is this not the same as the mail order company sending a customer a cheap substitute for the item he ordered?
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- Anonymous Coward, 28 Oct 2011 @ 7:58pm
  
  Re:
  If patents really are a form of disclosure then where is the patent that tells me how to build a TI calculator exactly like the one I have? Or a cell phone exactly like the one I have. The companies that make my cell phone and my TI calculator have patents. Yet none of their patents tell me how to build any of the products that they sell. Nothing was disclosed to me. Nothing useful anyways.
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  - Anonymous Coward, 28 Oct 2011 @ 8:03pm
    
    Re: Re:
    and patents don't give incentive to disclose anything. If a company requests a patent then the company perceives that others can reverse engineer the product, so no disclosure is needed for us to figure out how the product works. and if the company perceives that no one can reverse engineer the product, then the company doesn't need a patent to keep competitors out of the market and is better off not disclosing anything.
    
    http://www.techdirt.com/articles/20081107/0135002767.shtml
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    - Anonymous Coward, 29 Oct 2011 @ 6:53am
      
      Re: Re: Re:
      and patents don't give incentive to disclose anything. If a company requests a patent then the company perceives that others can reverse engineer the product, so no disclosure is needed for us to figure out how the product works. and if the company perceives that no one can reverse engineer the product, then the company doesn't need a patent to keep competitors out of the market and is better off not disclosing anything.
      
      Again, I suspect you're just ranting. In order to get a patent, the patentee must divulge how to make the invention. It makes zero sense to say that a patentee doesn't disclose the invention because disclosure is absolutely necessary to get a patent in the first place. Maybe you're thinking of a trade secret? You aren't making much sense to me.
      [ link to this | view in chronology ]
      - Anonymous Coward, 29 Oct 2011 @ 9:07am
        
        Re: Re: Re: Re:
        Divulge?
        
        Obviously you hadn't be reading the patents granted recently none of them divulge anything.
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        Anonymous Coward, 29 Oct 2011 @ 9:44am
        
        Re: Re: Re: Re: Re:
        Obviously you hadn't be reading the patents granted recently none of them divulge anything.
        
        Again, that's just a generality. I suspect you haven't ever read a single patent, but I could be wrong. If you have a patent in mind that doesn't "divulge anything," I'd like to see it. I guarantee you upfront that you're simply wrong, even though I don't know what patent you're thinking of--that's how silly what you're saying is. I suspect you're just repeating some FUD you read on Techdirt.
        
        You do realize that all Mike does is scour the web looking for anything that speaks negatively of IP so that he can "borrow" that story for his own. There's no balance to his "reporting." It's just a bunch of IP-hating FUD. Patents (and IP in general) do a lot of good in this world, and you would be wise to open yourself up to other points of view.
        [ link to this | view in chronology ]
        
        Anonymous Coward, 30 Oct 2011 @ 1:02pm
        
        Re: Re: Re: Re: Re: Re:
        I read a lot of them, the fact is patents today don't teach anything except on the creative use of legal language to disguise the true purpose of the patent.
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        Willton, 31 Oct 2011 @ 9:20am
        
        Re: Re: Re: Re: Re: Re: Re:
        I read a lot of them, the fact is patents today don't teach anything except on the creative use of legal language to disguise the true purpose of the patent.
        
        Really? Then please point us to one. If you've read so many that fail to teach anything, then you should have no trouble finding one which you've read in the past.
        [ link to this | view in chronology ]
        
        Anonymous Coward, 31 Oct 2011 @ 6:19pm
        
        Re: Re: Re: Re: Re: Re: Re: Re:
        Wilton,
        
        Better re-read, whereupon you will notice the point being made is that those here who profess to understand patent law have likely never read the relevant material.
        
        And, BTW, while there are perhaps some applications and patents that come perilously close to the 112 line, they are a very rare occurrence for any number of reasons, at least one of which is the limitations introduced in attempting to secure the allowance of relatively broad claims.
        [ link to this | view in chronology ]
  - Steve R. (profile), 28 Oct 2011 @ 8:09pm
    
    Re: Re:
    Exactly what is wrong. Patents now seem to describe a process that goes from one black box to another. You would not be able to replicate the device. If you cannot replicate a device from the submitted detailed plans, a patent should not be granted.
    [ link to this | view in chronology ]
    - Anonymous Coward, 29 Oct 2011 @ 6:54am
      
      Re: Re: Re:
      Exactly what is wrong. Patents now seem to describe a process that goes from one black box to another. You would not be able to replicate the device. If you cannot replicate a device from the submitted detailed plans, a patent should not be granted.
      
      You speak in generalities, but I suspect you're just repeating some anti-IP FUD you read somewhere--probably from Mike (who is notoriously anti-IP). Point us to a patent that doesn't disclose how to make the invention patented. I suspect you can't.
      [ link to this | view in chronology ]
      - Anonymous Coward, 29 Oct 2011 @ 9:11am
        
        Re: Re: Re: Re:
        Coming from a guy who only speak in general and never provides any piece of evidence for his rantings.
        [ link to this | view in chronology ]
        
        Anonymous Coward, 29 Oct 2011 @ 9:45am
        
        Re: Re: Re: Re: Re:
        Really? What claim of mine would you like evidence for?
        [ link to this | view in chronology ]
        
        Richard (profile), 29 Oct 2011 @ 4:05pm
        
        Re: Re: Re: Re: Re: Re:
        What claim of mine would you like evidence for?
        Show ua a single patent that discloses something useful.
        [ link to this | view in chronology ]
        
        Willton, 31 Oct 2011 @ 9:00am
        
        Re: Re: Re: Re: Re: Re: Re:
        Show ua a single patent that discloses something useful.
        
        Here's one:
        
        U.S. Patent No. 7,774,155
        
        Though I suppose it depends on whether you call a gaming device "something useful"
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  - Anonymous Coward, 29 Oct 2011 @ 6:50am
    
    Re: Re:
    If patents really are a form of disclosure then where is the patent that tells me how to build a TI calculator exactly like the one I have? Or a cell phone exactly like the one I have. The companies that make my cell phone and my TI calculator have patents. Yet none of their patents tell me how to build any of the products that they sell. Nothing was disclosed to me. Nothing useful anyways.
    
    It's hard to evaluate your conclusory assertion that some patent doesn't teach how to make the invention patented without knowing what patent you're looking at. Can you give me a link to the patent you have in mind so we can look at it? In general, patents teach those skilled in the art how to make the invention. That's a prerequisite to patentability. I suspect you're just ranting here.
    [ link to this | view in chronology ]
    - Anonymous Coward, 29 Oct 2011 @ 9:07am
      
      Re: Re: Re:
      No they don't, recent patents don't teach anything, they include vagaries as to be very inclusive, and try at all cost to be precise because that would limit their patents.
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      - Anonymous Coward, 29 Oct 2011 @ 9:46am
        
        Re: Re: Re: Re:
        Absolute and utter bullshit. Enablement is a prerequisite to patentability. Why don't you point me to a patent that doesn't "teach anything"? You cannot, because you're just spouting idiotic nonsense.
        [ link to this | view in chronology ]
        
        Richard (profile), 29 Oct 2011 @ 4:07pm
        
        Re: Re: Re: Re: Re:
        You point us to one that does.
        I've looked at many patents and I haven't seen one yet.
        [ link to this | view in chronology ]
        
        Willton, 31 Oct 2011 @ 9:17am
        
        Re: Re: Re: Re: Re: Re:
        You point us to one that does.
        I've looked at many patents and I haven't seen one yet.
        
        He asked first. The ball is in your court.
        [ link to this | view in chronology ]
        
        Anonymous Coward, 30 Oct 2011 @ 12:58pm
        
        Re: Re: Re: Re: Re:
        Not because I cannot is just because I don't want too.
        I saw it with my own two eyes, so I know you are full of shit.
        [ link to this | view in chronology ]
        
        Willton, 31 Oct 2011 @ 9:15am
        
        Re: Re: Re: Re: Re: Re:
        Not because I cannot is just because I don't want too.
        I saw it with my own two eyes, so I know you are full of shit.
        
        And I can tell from this that you are too lazy to back up your frivolous rants. Everyone here likes to talk about evidenced-based arguments, yet no one here wants to put one forth.
        [ link to this | view in chronology ]
    - Anonymous Coward, 29 Oct 2011 @ 12:49pm
      
      Re: Re: Re:
      "Can you give me a link to the patent you have in mind so we can look at it?"
      
      That's your job. That's the challenge I'm making to you. Show me the patent that tells me exactly how to build my TI Calculator. Or my cell phone. Or any of the technologies that these various companies make. Instead of being obtuse, why not meet the challenge.
      [ link to this | view in chronology ]
- Anonymous Coward, 29 Oct 2011 @ 9:04am
  
  Re:
  No stupid, it was a court interpretation not a congress problem.
  [ link to this | view in chronology ]
  - Anonymous Coward, 29 Oct 2011 @ 9:48am
    
    Re: Re:
    No stupid, it was a court interpretation not a congress problem.
    
    OK, smart one, tell me exactly what the "court interpretation" is you're referring to (with a link, please). How did the court get it wrong?
    [ link to this | view in chronology ]
    - Anonymous Coward, 29 Oct 2011 @ 10:08am
      
      Re: Re: Re:
      You are an "IP Maximalist".
      
      Your are a "Patent Apologist".
      
      You cannot be trusted because you are a "lawyer/agent who is irretrievably biased".
      
      And the most damning of all "you have probably read Title 35, 37 CFR, and the MPEP, which is grossly unfair to those of us who haven't and never will".
      [ link to this | view in chronology ]
      - Anonymous Coward, 29 Oct 2011 @ 12:23pm
        
        Re: Re: Re: Re:
        "It's hard to get a man to understand something when his job depends on him not understanding it!" - Upton Sinclair
        [ link to this | view in chronology ]
      - Willton, 31 Oct 2011 @ 9:13am
        
        Re: Re: Re: Re:
        And the most damning of all "you have probably read Title 35, 37 CFR, and the MPEP, which is grossly unfair to those of us who haven't and never will".
        
        That's a problem that is easily solved: get off your lazy ass and read the above-mentioned items.
        [ link to this | view in chronology ]
        
        Anonymous Coward, 31 Oct 2011 @ 5:00pm
        
        Re: Re: Re: Re: Re:
        Wilton,
        
        Better re-read, whereupon you will notice the point being made is that those here who profess to understand patent law have likely never even read the relevant material.
        [ link to this | view in chronology ]
    - Anonymous Coward, 30 Oct 2011 @ 1:00pm
      
      Re: Re: Re:
      So glorious minded person explain why at one point it was not patentable and suddenly it was without congress passing any new laws about it?
      
      You can't explain that can you LoL
      [ link to this | view in chronology ]
- freak (profile), 29 Oct 2011 @ 9:59am
  
  Re:
  "Considering that part of the patent bargain is that the patentee must disclose the invention to the world, it doesn't make a lot of sense to complain that patents are about keeping things secret and not sharing."
  
  Well, from we've seen, a company only decides to patent if they cannot already keep their invention secret.
  
  If the intricacies of their invention are so nuanced, or so novel that they don't believe anyone could reverse-engineer it, they simply don't apply for a patent.
  
  If they think someone could reverse-engineer it, then they do get a patent; and then regardless of whether you know how to build the device or not after reading the patent, it doesn't matter because they can sue you out of existence.
  
  What happens is that we get patents for things we already know how to build, or once seeing the device, can figure out how to build it very easily, and no patents that actually disclose things.
  
  Which is why my open-source software has options to save in 17 different standard formats, and 17 versions of said formats that accomplish exactly the same thing, but are 'patent-free' and incompatible with the normal proprietary software.
  For one of the versions, the difference between the patented & patent-free format is literally only motorola coding & big-endian. (Motorola coding, if you're not familiar, is the ordering of a 4-bit group of bits like 4812, as opposed to big endian, 8421, or little endian, 1248, and is similar to PDP-endian. I'm not really sure of the term's history/etymology)
  [ link to this | view in chronology ]
Steve R. (profile), 28 Oct 2011 @ 7:35pm

But What Gives Them a "Right" to Claim a Poperty Right
"The patient, a man named John Moore, was never told that his discarded body parts could be used in other ways."

If the assertion that so-called "intellectual property" actually exists then Mr. Moore still "owned" the information contained in his discarded body parts since the property is the "intellectual" content recorded in his genes, not the actual physical media. Think music CD. So how can the person collecting the physical samples assert an ownership right to the genes?

It is unfortunate that no matter how convoluted or absurd the concept of "intellectual property" becomes, the court system seems to reluctant to quash these ridiculous claims. Patenting natural products, such as genes, should not be allowed.
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- Anonymous Coward, 29 Oct 2011 @ 7:34am
  
  Re: But What Gives Them a "Right" to Claim a Poperty Right
  If the assertion that so-called "intellectual property" actually exists then Mr. Moore still "owned" the information contained in his discarded body parts since the property is the "intellectual" content recorded in his genes, not the actual physical media. Think music CD. So how can the person collecting the physical samples assert an ownership right to the genes?
  
  Um, if the body parts were truly discarded, then the guy's property rights in them ceased to exist. There was no intellectual property in the genes at the time they were discarded since the patent hadn't been filed for yet. I haven't read the case talked about here, but I'm sure the court's reasoning is along these lines.
  
  It is unfortunate that no matter how convoluted or absurd the concept of "intellectual property" becomes, the court system seems to reluctant to quash these ridiculous claims. Patenting natural products, such as genes, should not be allowed.
  
  You might be right. Perhaps genes shouldn't be patented. But, and no offense, I sincerely doubt you have any good arguments to support this position. If you don't like the patentability of certain subject matter, contact your elected representatives. That's how this works.
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  - Anonymous Coward, 29 Oct 2011 @ 9:12am
    
    Re: Re: But What Gives Them a "Right" to Claim a Poperty Right
    Why contact a congressman when the problem is of judicial interpretation?
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    - Anonymous Coward, 29 Oct 2011 @ 9:37am
      
      Re: Re: Re: But What Gives Them a "Right" to Claim a Poperty Right
      Why contact a congressman when the problem is of judicial interpretation?
      
      What exactly are the courts interpreting the wrong way? Got a cite to a court decision you are thinking of? If the courts are interpreting Section 101 (or whatever you're thinking of) incorrectly, then it's up to Congress to clarify what the proper interpretation should be. You can sit around and hope and pray that courts all of the sudden start to interpret things differently, I suppose, but Congress will get you much better results.
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      - Anonymous Coward, 30 Oct 2011 @ 12:29am
        
        Re: Re: Re: Re: But What Gives Them a "Right" to Claim a Poperty Right
        The courts first applied patent-eligibility to isolated molecules in the Parke-Davis case, concerning adrenaline, but since then the Supreme Court, in Chakrabarthy, limited 101 by excluding "abstract ideas, products of nature, and natural phenomena." The Supreme Court has never reviewed whether a gene fits one of these exceptions, and arguably, unmodified genes fall under either the natural product or phenomena exceptions. Soon, SCOTUS will likely have a chance to settle this given the AMP v. Myriad appeal. In which case, the courts will have fixed (or failed to fix) this before any legislation even makes it out of any committee.
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      - Anonymous Coward, 30 Oct 2011 @ 1:05pm
        
        Re: Re: Re: Re: But What Gives Them a "Right" to Claim a Poperty Right
        Don't need to pray just need to shame them.
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out_of_the_blue, 28 Oct 2011 @ 7:51pm

Grammar lesson. Skip at own risk.
Had you* been schooled by a stern but not unattractive older woman who wore rustling stiff black dresses over a foundation garment and was a stickler for clarity, then you'd probably avoid these. Not all are Mike's errors, but he does start us off with three, the first the worst being cause of this post:

>>> "It looks like there's now a new book out exploring the same subject, by medical ethicist Harriet Washington."

It looks like? Could you nail that down for us? Is anything certain in your ivory tower, Mike, or it is all vague abstractions? Just simply STATE facts. Why the hell should you hedge that?

>>> "A mouthful in the subtitle, but it would seem these two books belong next to each other on the bookshelf."

Is /your/ apparent stumbling over a few words relevant at all? If so, how are the clauses linked? Is placement of books on shelves at all important, or in any way dependent on subtitle complexity?

>>> "highlighting the key point: that patenting genes is making us less healthy:"

The "key point" isn't evident in the block quoted, that's solely about a court case. Maybe that's just bad choice of examples on part of NPR or Mike, but I'd guess most of the book is such outlining of court cases, rather than exampling the stated thesis. The second block quote similarly is about legislation, with the supposed harm only hinted at. Even though I like the thesis, suspect I'd be left with only the usual vague assertions instead of specifics.

>>> "keep the medical cost of treatment down"

Now, there COULD be such a thing as "medical cost" in terms of wear and tear on a body, but I /think/ this is just a reversal of words.

>>> "The physician then established a laboratory to determine whether tissue samples could be used to create various drugs without informing the patient."

Ambiguated. The clause "without informing the patient" should be set off with a comma at least, and I'd say at start of sentence.

You're welcome.

[* I wasn't either, so drop your assumptions.]
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- Anonymous Coward, 28 Oct 2011 @ 7:54pm
  
  Re: Grammar lesson. Skip at own risk.
  "It looks like? Could you nail that down for us? Is anything certain in your ivory tower"
  
  It's a figure of speech, are you so lacking in good arguments that the most you can pick on is the use of a figure of speech?
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- Jeremy2020 (profile), 28 Oct 2011 @ 9:18pm
  
  Re: Grammar lesson. Skip at own risk.
  I think you've confused 'grammar' with reading comprehension. Please, in the name of not being vague, point to gramatical texts that reference the 'rules' you're using above.
  
  I'm willing to bet you are not able to do so.
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- educator, 15 Jul 2012 @ 5:35pm
  
  Re: Grammar lesson. Skip at own risk.
  Surely one who presumes to give another a grammar lesson should actually know something of said subject. This 'teacher' fails on both parts.
  
  Addressing the first point: The stylistic 'hedging', or, if one prefers, the issue about clarity, pertains to an area considered on the fringe of grammar, if concerned with grammar at all. Traditional grammar advice relating to improvements to structure depends on authorial intent; hence the provided suggestions (which would change meaning) aren't strictly grammatical changes alone. Readability isn't compromised by the original phrasing anyway, but the perceived inadequacy of a writer's research doesn't come under the banner of grammar at all. Without even considering academic categorization, one must consider that advice of an editorial or journalistic nature do not fall properly under the subject of grammar as most would understand it.
  
  The "mouthful in the subtitle" advice betrays a lack of understanding in our 'grammar teacher'. The clause addressing the 'mouthful in the subtitle' denotes - clearly, to most readers, I would imagine - the fact that understanding the exact subject, and hence how one might categorize the work, might be troublesome; the second clause elucidates the contextual meaning of the first. We could re-interpret this: "the subject of Book A is incredibly specific, but no doubt it relates closely to the subject of Book B". Whether a comma should be present is pure Oxford-vs-Cambridge-convention pedantry.
  
  There is a point about medical costs which appears well made. In my opinion, this begs a polite clarification from the author and no more. Of course all readers understand by now what they are dealing with grand-standing in the name of grammar anyway - but more of this level of competence in advice helps readers suspend disbelief that the attack is unwarranted, or motivated by other things.
  
  I could go on, of course, but I think my point is made: if one is going to use passive-aggressive techniques of insult (such as grammar correction) toward people with whom one disagrees (or has disagreements, perhaps? - we, the intelligent readers, know the difference), one should be sure that one is actually good at grammar first.
  
  Now - away from the 'one' of generalization -
  you*, in this instance, dear 'teacher', word your subject so clumsily as to suggest that we (the readers in general) could all learn from your lesson - but I haven't been schooled by your remark in anything accept your apparent inability to tackle an issue honestly, head-on. Your use of the vernacular in the opening complaint makes plain the pretense of your corrections, but couldn't your response have been... well... better?
  
  If you are going to be pedantic as a vehicle of disrespect (and that alone, so far as I can see, for I couldn't infer any love of grammar from your writing) at least ensure that you are up to the task, or else expect the same disrespect yourself.
  
  Finally, if you, 'teacher', are going to be so willfully narrow ('narrow' here is interchangeable with 'unforgiving' or 'dull') with your interpretation of what someone has written, then at least apply the same standards to your own writing.
  
  To you, 'teacher', who writes: "The second block quote similarly is about legislation, with the supposed harm only hinted at" I will leave the final lesson - the lesson of which two glaring grammatical mistakes you made in that sentence of yours alone!
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a sad dude (profile), 28 Oct 2011 @ 9:14pm

Gene patents my ass! Oh wait...
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wvhillbilly (profile), 29 Oct 2011 @ 7:09am

Patenting genes
I guess the next big thing for patent trolls will be getting patents on all our genes, then suing us for infringing their patents.

[/sarcasm]

Seriously, I think the motive for all this patenting of human genes is just pure greed. I suspect the people who do this are much more concerned about lining their own pockets than they are about helping anyone improve their health.
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- Anonymous Coward, 29 Oct 2011 @ 7:38am
  
  Re: Patenting genes
  Seriously, I think the motive for all this patenting of human genes is just pure greed. I suspect the people who do this are much more concerned about lining their own pockets than they are about helping anyone improve their health.
  
  And you base this opinion on? And you have even the slightest idea of what you're talking about because of?
  
  Good grief, the anti-IP sentiment of TD is ridiculous. You guys have no idea what you're even talking about, but you're just so sure that it's all bad.
  
  You guys really should read stuff other than TD. All Mike does is focus on the negative, and most of the time it's just him jumping to conclusions without much or any basis.
  
  It's just sad that Mike fosters this idiotic environment.
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  - Anonymous Coward, 29 Oct 2011 @ 9:17am
    
    Re: Re: Patenting genes
    Of course we do, we are talking about the tools that others use to negate the benefits for everyone.
    
    Monopolies should be repealed right now.
    
    For too long people let others say to them what they could do or not, it is time to get some power back.
    
    You don't like it?
    Not my problem, yours is that an awful lot of people are waking up to the fact that there is something wrong, and it can't be far behind the realization that the legal tools used by the 1% are the things that are keeping them from being able to work.
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  - Anonymous Coward, 30 Oct 2011 @ 11:06pm
    
    Re: Re: Patenting genes
    People don't find Techdirt because they want to hear about the good, they come here for examples of the bad and how that could affect them.
    
    Do you really believe that there are no problems?
    So why are so many people discovering Techdirt? or sites like it?
    Heck, even in scientific blogs most people when it comes to the political side have the same fraking opinion, they all know in an intuitive level that something is very, very wrong, they don't need to be told something is wrong they already sensed they are looking for the details and that is what Techdirt delivers the naked details to everyone to see it.
    
    There is a growing number of people, opening their eyes to what granted monopolies are no matter how you want to express it, in different language forms.
    
    This is not a TD phenomenon this is a cultural phenomenon, people are starting to get affected by it and they know something has gone wrong now they are looking for the what, and it is just a matter of time before they realize it that some people use the legal system to stop others from doing something and that is what is harming them.
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  - Anonymous Coward, 30 Oct 2011 @ 11:16pm
    
    Re: Re: Patenting genes
    Lets ask any farmer in America about what they think about patents they probably don't have nothing to say, now ask them about Monsanto and they all will be very clear on how evil that company is, they know something is wrong, they know that company got some power, they just didn't get it yet that that power is derived from imaginary property, because when they really, really realize how the laws are being manufactured to harm them, no one will be in favor of patents or IP laws anywhere.
    
    The same goes for small time musicians that still believe those laws protect them when those laws are only for those who can afford the use the law and in fact reduces their chances of getting paid by creating a market where only high priced places can afford to have music and thus only a few places can have live musicians, then less musicians can be hired, the same goes for every other field education, engineering and so forth, of a class of 50 graduates one or two are really bright the rest depends on the tools created by others to do something and if they can't do it there are no jobs for those engineers.
    
    Patents harm coders too, right now everybody can use anything although that is changing, just now in 2010 the patents from Apple on character hinting expired, long before that there was a "pirate" version of a free automated hinting system that could not be used, but that was an extraordinary thing, most webmasters don't want to read all patents available to them and they couldn't possible be able to read them all and keep up with a system granting hundreds of thousands of patents a year, it places liability and so only the very successful ones will be able to stay on the market killing thousands of jobs.
    
    Putting the bar higher is eliminating the lower ranks, those are jobs being lost, real jobs, not the fraking bottom line of companies, those are the bottom lines of people.
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    - Anonymous Coward, 31 Oct 2011 @ 8:38am
      
      Re: Re: Re: Patenting genes
      Hell yeah.
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Anonymous Coward, 29 Oct 2011 @ 8:24am

If I were Mr. Moore I would have been sorely tempted to discard part of my body on the Supreme Court steps.
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Anonymous Coward, 29 Oct 2011 @ 3:21pm

As a huge fan of Lessig, I didn't expect anything less from this guy. That you didn't find some quote going on about the 1st amendment is surprising. Nothing much new here, just a professor with an opinion working hard to make the data fit the theory.
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Anonymous Coward, 29 Oct 2011 @ 3:43pm

Prior Art
Isn't it still true that "prior art" invalidates a patent?
If so, then that should lead to the conclusion that all gene/DNA patents would by their very nature be invalid since there is a creature as "prior art" as well as that creatures ancestors showing "prior art" to that creature although that could be argued as transformative.
Now please continue your rants!
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Anonymous Coward, 29 Oct 2011 @ 10:57pm

Granted monopolies are not only deadly to healthcare they are also deadly to every little musician trying to make a living on the streets or in bars trying to find a place to play, they are deadly to everything.

They are also deadly to small developers, all those jobs created by being a webmasters, sys admins and the like will all come to an end if they all need to look at the patent office before they can start doing anything.
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Harriet, 21 Nov 2011 @ 9:17pm

Deadly Monopolies is about FAR more than gene patents
Hello, and thank you very much for discussing my new book Deadly Monopolies: The Shocking Corporate Takeover of life itself--and the consequences for your health and our Medical Future (Yes, I agree, a real mouthful!) I've very much enjoyed reading your thoughtful analysis and the comments.

I wish to point out that Deadly Monopolies covers much, much more than gene patents, which are discussed in only 1 of the book's 10 chapters.
I also discuss the history medically important utility patents, patents' role in high medication prices, FDA-approved dangerous medicines, corporate influence on medical research, nonconsensual research, appropriated tissues, biocolonialism and the use of the developing world as the research laboratory of the West. I end by discussing new marketing models that seek to provide both corporate profit and global access to medications.

Thank you again for discussing my work.
Harriet
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