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Caltech DNA Sequencer Patent Question
brusk writes: "An article from this Sunday's Los Angeles Times is a fascinating investigation of the background to the Caltech spinoff company that produced and sells the DNA sequencer that will be responsible for a complete draft of the human genome within a month or two. It appears that despite denials by the developers and Caltech, millions in NSF and other federal grants went into the development of the sequencer. This is supposed to give federal agencies large discounts on their purchases of sequencers and input into how the devices are marketed. This has interesting implications for the future of these for-profit spinoffs from academe. Perhaps even more significantly, the article raises questions about whether the patent application misrepresented the development process, which could invalidate the company's patent on the sequencing technology. This could shake up biotech world."
At the end of the article, you'll find a few paragraphs that talk about a professor who had apparently done crucial work on the sequencer, yet was not named as an inventor on the patent (thus depriving him of royalties and recognition).
...Asked why he had not pursued the issue of his omission from the patent, Huang said that he cared more about the science than about matters of ownership and money.
"If I opened the door for someone else to go through, that's enough. You have to decide where you get your gratification."
After reading of all the ongoing legal manuevering and spinning, this made me stop for a moment. There are still scientists out there who are dedicated to higher goals, thank god.
The real question is, why are these "schools" --- when viewed as v.c. funds / incubators that book profits from investment and royalty income --- why is that these "schools" are not only tax-exempt, but they actually have easy and preferred access to federal handouts in the form of NIH / NSF funds?
Because the students who actually participate in this V/C prep stuff is in the extreme minority. You're describing a class that enrolls perhaps 20 to 30 students a year (I took the class's predecessor, which didn't include writing a business plan) out of a graduating class of about 250. The majority of the students at Caltech could care less about going out and starting a business; they're more concerned with cutting edge research.
Further, having been to Caltech, it's pretty clear Dr. Hood was the exception to the rule around there--while being at Caltech, you get pretty used to being in a rather rarified research atmosphere, it's about the science, and not about making bazillions of dollars.
Caltech's undergraduates have a rather long history of counter-culture thinking, and in opposing anything that prevents the free exchange of ideas and research from taking place. "Know Ye The Truth And The Truth Shall Set Ye Free" happens to be the school motto, and most folks there swear by it.
As to skimming 75% of the royaltees--this is actually the exception of many universities who take 100% of the royaltees of any inventions that you create there as part of your student career. This is akin to a company taking 100% of the research work you create when you work there, on research they fund and they provide the facilities for. That Caltech is willing to cut you in on a percentage of the profits of an invention that was created entirely on their dime and with their facilities is actually one of the more generous deals out there.
I'm a plant biology senior at UC Berkeley and one of my professors went over patents/IP law recently, so I have some understanding of how it works. Here at Berkeley, the general license agreement works so that the University of California Regents keep all the patents that come from our research. Private corporations that fund research get to be first in line to apply for a license (exclusive or otherwise), while the Federal Government always gets a license. Furthermore, from what I understand, most licenses/patents allow ues of a technology for non-profit/academic purposes (that's not really relevant, but I thought I'd mention it).
While I'm posting, I might as well explain how patenting genes works, too. The way things are set up at the patent office now, you will not get a patent based solely on sequencing information. In order to even have a chance at a patent, you have to be able to predict the amino acid sequence of the protein the gene encodes (this isn't as easy as just reading across the sequence and matching codons [three letter 'words' in the sequence] with the corresponding amino acid -- only parts of the gene actually get transcribed into protein, the rest gets spliced out...so you have to know a bit about the gene to do this). Generally, however, people also try to get some understanding of a gene's function and operation before they apply for a patent, since this will strengthen their patent...which means maybe they can try to cover other organisms' copy of the gene in their pattern (so they could pattern a gene in, say, mice and also patent any gene that shares 70% of the sequence).
I'm not sure if I explained that terribly well, but I hope it's clear. Now I'd like to present my take on patenting in biotech. Personally, I don't believe in patents. I'm somewhat idealistic -- I'd rather nobody ever had to patent anything because everyone would be socially responsible enough to give credit when using other people's work and to make their work available in return...basically, the GPL. I'd rather we all work because we're excited about what we're doing or we recognize that a service needs to be provided. Unfortunately, that's not the kind of world we live in right now. Patents seem to be necessary in modern economies. After college, I'm going to go back home and run my own biotech company -- and I will patent my work. Not because I believe in it, but because I need to in order to protect myself. If I am open about my work, then others will take it and incorporate it into their proprietary products and my family won't eat. This is why I prefer academic environments -- it's the closest you get to the GPL, because most licenses make exception for it.
The last thing I'd like to bring up is something that I've rarely seen discussed, although it's highly relevant to biotech IP law. How will piracy develop in biotech? Many similarities can be drawn between biotech and CS, both in development and in the nature of the work...and I have no doubt that, once biotech products become more available on the market, they will be pirated. Probably not by individuals, but certainly by corporations. And while that may be illegal here, it's not in China (or a host of other countries)...and several of these countries (China in particular) have both the technological capability and the incentive to steal a product...and it is remarkably easy to do. All you need are a few cells -- you can propagate a whole population from them and then use it to study what Monsanto did and take it. If you never signed a license (or clicked one), would it be illegal? Will we have to sign some form of license agreement to shop in the GMO section at our supermarket? Or will we figure out how to encrypt genes somehow?
Sorry if I rambled, this post got somewhat out of hand....
Patenting should not be allowed in this field of research. Just imagine the consequences this could have if companies start patenting the various processes that are required to map DNA sequences. This would simply "not be beneficial"(tm) for anyone but the executives of the companies involved. Let's not have companies that work for themselves, but rather to further 'our' knowledge and help us solve our worldly problems. *That* would be a good thing(tm)!
;)
BTW, do I have First post?
I think that if federal money, which comes from American citizens paying federal income tax, is used for scientific research, then it is only fair that American citizens be allowed to make free use of the results.
Of course, I'm sure that the issue is more complicated than that, but I think that the sentiment behind what I'm saying is a good one.
Take care,
Steve
========
Stephen C. VanDahm
I've seen this same view posted a few other times on this article..but what good's a /. account for if not to post.
The human genome project should be a totally non-commercial project. This is a field of research that affects humans a helluvalot more than a car or a truck, or a TV for that matter. We're not talking about a pill you take to get a boner, or a bigger, better plane. We're talking about the building blocks of life. I think that should be given a little forethought...at least more than "Hey...we know how to build people now. How can we make money off this?"
Oh well...i suppose this is just another type of ozone deal. We'll say fuck it untill it either starts to kill us...or we can't scrape any more cash out of the sun-burned bodies of our consumers.
viva la capitalism! - what a joke!
this post was brought to you by the national association for the advancement of owls.
FluX
After 16 years, MTV has finally completed its deevolution into the shiny things network
"It is seldom that liberty of any kind is lost all at once." -David Hume
As someone who was around the Caltech campus at the time the article describes, its important to note that Lee Hood was very atypical for a Caltech prof -- his lab was all post-docs and huge (at its peak, around 70 post-docs), this on a campus that has about 1000 undergrads and 1000 grad students, and maybe a few post-docs per group depending on the field. He was a much better fit for a big med school than he was for Caltech. Caltech ...
IMHO, this is just a specific case of business attempting to gain private benefits while socialising the negative externalities (ie public R&D). Basically R&D is high risk, as Paul Allen of Microsoft fame found out with his recently folded company. To help reduce the risk barrier, governments (supposedly representing the wider public interests) have traditionally funded broad fundamental science&technology, the well-spring from which the rest of consumer goodies spring from (computers from code-cracking, digital cameras from astronomy, etc). However, progress in this domain relies completely on a mindset devoted to honest introspection, intellectual integrity, and building on the work of others (idealistic shoulders of giants, etc). Hence the exemptions in copyright acts for review/reference, libraries, scholarly studies, etc otherwise the cost of research would just explode and we would probably have less of it.
Now, I think it is fair to say that if a person or private company spends their own hard-earned savings on R&D, they should be entitled to any and all benefits that accrue (provided there are no excessive negative social/environmental impacts). If something is funded publicly from compulsary taxes, (much like a public forum), then it should be made available to the any emember of the public. Attempting to move from one domain to the other without 'fair' compensation smacks of 'rent-seeking' behaviour (ie a public subsidy constrained by persistant below-market valuation) as all the benefits are expropriated by late stage technology developers/marketers and not the in-between debuggers/testers. If you think about it, this refers to the Intel 'point of technology inflexion' where the value/cost shifts sharply upwards. A case in point is the internet name domain registration bun-fight since once people realised the potential growth of the internet name-space, then by capturing critical nodes of the registration pathway, they are able to extract monopoly rents (ie disproportinate rewards to risks). One analogy you could use to describe this behaviour is a village letting a field lie fallow to build up its productive base only to wake up one day to find one person has fenced off the best parts and cut off the water supply. Another analogy is that people like GNU/Stallman/Postel building the basic roads (internet standards) but others coming along afterwards and embracing/extending them by errecting toll booths (you can guess who). This type of activity (while very profitable to the individual), hurts the system as a whole as it discourages people with the time/talent to play with new ideas if someone else gets all the kudos (ie OpenSource desire for 'reputation'). On the other hand, if you're a believer in private enterprise and capital accumulation, then you'd argue that it is more efficient so I suppose it does depends on whether you are a people-oriented person or capital person). Of course to shift things from the public to private sphere takes strong will and Machievallian talents, something not always appreciated by others, especially competitors.
Now what policy tools can be used to limit extreme anti-competitive behaviours (like the Geneva convention on war, you do need some *basic* guidelines to mark the playing field, uneven as it may be)? Traditional forms (or even definitions) of markets have not really evolved to handle pure intellectual goods. Part of the problem is that the US, as one of the more advanced ecnomies, has imposed its patent system (with all the systematic flaws and structured deficiencies intended to foster its early industrial economy) on the rest of the world (WTO, etc). For example, automation of business practices is a rather obvious result of computerisation, yet you have individuals attempting to gain a monopoly on entire sectors because they claim to be the first to codify it in VisualBasic or whatever (can you say Priceline?) even though the practice may already been implemented in parts/with variations/different combinations in other businesses but it wasn't worth patenting as it is something commonly done (there are only so many ways of pricing an auction). Patenting something just because it is nonobvious to the clueless is not a definition of innovation IMHO and the biggest stumbling block is sorting out the merely novel, as compared with the truely innovative is a major difficulty.
The big problem comes in that most cutting areas of science nowadays are capital-intensive (think electron microscope, think supercomputer, think synchrotron), and this is a big big problem as governments are not particularly good at allocating capital (think bureacratic infighting over budgets instead of raising bonds/selling equity). Hence you need serious funding which governments are relunctant to do when there is no "obvious" political or socio-economic payoff (e.g. perceived supercollider boondoggle, etc). Hence their encouragement of "industry involvement" and the contaiminent of research ideals (for the good of humanity etc). This can be seen in other sectors such as medicine as privatised hospitals tend to discourage (or even abandon) their teaching role as profits (as traditionally defined) is dependent on patient throughput (easy to automate/accelerate) and not quality of care (very hard to measure).
What is the solution? A lot of people would like to know. I suspect part of the problem is that our accounting system (which defines profit/loss) doesn't really measure the value of human capital properly. How does one measure the social value of a public university? More that just passing on learning (which can be obtained by reading a book), but the meeting of minds, moulding of motives, and mixing of memes? And more importantly, how do you provide technological solutions to problems which are inherently social in nature (e.g. fencing off intellectual commons due to entrepreneurial zeal without realising the unwritten rules of conduct).
LL