Slashdot Mirror
New Technique Makes Most Gene Patents Irrelevant
Billy the Mountain writes "This Scientific American article, Legal Circumvention, describes a technique for circumventing gene patents whereby living cells are coaxed into expressing genes, especially those genes currently held under patents. Although, would-be exploiters of genes are prevented by patent restrictions from constructing a particular sequence and replicating it, patent law cannot be enforced in instances where an existing cell or organism is caused to express any of these patented genes and proteins."
So, if I make a computer design a part using what it is supposed to do (push levers, bend things, twist things, etc.), under a set of parameters (size, material, etc.) and feed that into a CNC mill and out came a patented part, would that be okay?
I think not...
-twb
So much time is wasted trying to duplicate the efforts of others or finding ways to subvert others' research.
Wouldn't it make more sense to license the technology (yes, even genetic enhancements) and build upon it rather than trying to redo it from scratch?
I have been pwned because my
As the Internet community has tried to tell people for years, our current ideas of Intellectual Property are dead. Copyright, patents and other monopolizing influences on pure information have no reason to exist and the Internet has finally given us the means to destroy these useless ideas. I'm not against credit for one's work; the GPL and other such licenses can protect that if people are responsible in their use of open-sourced information. The difference is that in the Information Age, if you're going to come up with ideas for the good of society, you'll have to do it solely for that reason. Is that so wrong? Would it be wrong to teach people that to do the right thing and do things that are positive for society is it's own reward in the recognition one receives? Must we promise lordly lifestyles to those who create good things? Not really. Imagine this; a world where people develop cancer medications that can be distributed at low cost because they want to cure cancer, not because they want to make money. A world where scientists work together to solve problems, instead of working separately to make money. Let's think about that. The only problem is corporations (who give us more reasons not to trust them every day) want to protect the old system, because it grants them power. The thing they don't realize is that they've already lost. The old world is dying a slow and painful death; let's do the responsible thing and euthanize it.
i would like to explain the case "amgen vs. tkt" which is alluded to in the article.
basically, amgen has composition of matters patent on epo, both the sequence (which causes it's production in bacteria) and the protein (which is the stuff actually injected into the patient).
tkt caused cells to produce epo w/o using the epo sequence to coerce bacteria into producing it -- instead they coerced cells into producing it, without ever introducing the epo sequence into those cells. they then harvested the epo protein and (wanted to) sell it for serious $$$.
the court found that tkt did not violate amgen's sequence patent but did violate amgen's patent on the protein. hence, tkt did not have a product.
now, if tkt or anybody else came up with a compound which increases the endogenous production of epo, it's widely believed that neither the sequence patent or the protein patent would be infringed.
the difference is that such an "endogenous upregulator" would never require collecting and administering the protein (which has a composition of matter patent associated with it).
but this is no big deal. it's been known for some time. my company focuses on drugs that regulate gene expression. nonetheless, nobody has ever found such a magic epo upregulator, and with $2b in sales, you can bet people are trying.
In general, biotechnology companies are flush with cash. So, you come to them and ask "can we license your patent for a gene?"
Well, they have no friggin' idea what that license is worth. If they need money, they say "yes." If they're flush with venture capital, and even in this downturn, they are, they just say "no." If you come back with a ridiculous offer, they'd take it anyway, but they just won't deal for a reasonable price because, to them, it's a poor gamble. They've no reason to sell these things, and they know they've got value - because you want 'em. Alternatively, they may be using that gene patent to maintain a monopoly on some drug or treatment. No way they're going to license it to you (for a reasonable amount, once again) so that you can compete with them.
There was a plan by a colleague over at Cornell to do something pro-social with genetic engineering - I think it involved genetically engineering some tropical fruit (Mangos?) to retard spoilage. Whatever it was, it solved an economic problem for poor farmers on Pacific islands. Anyway, they had a way to do it but it involved a bunch of patented genes and processes. Funny thing was, these patents were sitting idle, unused by their owners. However, the owners of these patents wouldn't sell licenses because they had no idea of the value of what they were giving out. So, when in doubt, they refused.
A lot of these gene patenting outfits are (largely failed, because they've patented genes no one really wants) extortion rings. They're actually easier to deal with, since their gene patents are often legally weak, and they don't want to price themselves out of the market.
Discussing this technology itself - this isn't new. We new about zinc finger proteins when I took freshman biology, that would have been seven years ago.
Sangamo BioSciences in Richmond, Calif., has made about a fourth of them to bypass patent restrictions by using its "zinc finger protein" transcription factors, proteins that turn genes on and off.
The implication of this sentence is that zinc finger proteins are an innovation developed or discovered by Sangamo. This is not the case.
Athersys didn't develop their technique, either (not implied by the article,) although I've only heard of it used in the past to turn random genes OFF.
The good and new comes from no quarter where it is looked for, and is always something different from what is expected.
It's under appeal, but doesn't look good. The GM Canola apparently spreads like a weed and is growing everywhere. And once it hits your property, Monsanto claims the right to rip up your crop if you don't pay them for a patent license. The best general overview I've seen is the 169k pdf file linked from here.
If the Scientific American article is correct, it looks like US patent law is (for once) less screwed up than at least part of the rest of the world's.
One problem I think a lot of people have is that they believe there should be an objective rule by which all decisions should be made. It's probably a result of the deterministic nature of science and especially computer science. With business, though, there are so many factors to consider before making a business decision that it is simply impossible to take all those factors into account all at once without fudging some considerations.
A company loath to license patents is certainly well within their rights when facing a competitor who threatens to use the licensed patent to take away profits from the patent holder. If a biotech company came up with a cold remedy in their research and it was immediately useful in their serums, they would be fools to license the patent to another cold medicine-making company. However, if someone saw in the patent a path that could possibly lead to the cure for emphysema and needed to license the patent in order to build upon the original research, the company (whose main business is making cough rememdies) would be ethically challenged if they didn't license the patent. In the cases you cited above, the companies acted unethically, abusing their patents by not using them and not allowing them to be used.
Patents are meant to allow the creators a way to make a profit on their hard work and to facilitate the advancement of science by encouraging patent reuse instead of constant reimplementation. When a company does not use the patent for either of these purposes, the patent is worse than worthless because it actually becomes an hindrance to scientific progress.
A government-based arbitration system to whom a scorned patent licensee-to-be can appeal and have their case reviewed by a panel of qualified judges would provide the necessary Subjective viewpoint necessary to make patent licensing decisions on a case by case basis. The best decisions would be those that sought to properly recompense the patent holder without stripping the licensee dry.
Obviously this has the possibility of misuse written all over it, but so does the legal system. It also smacks of socialist tampering, but in reality it is simply an extension of the patent concept of promoting the arts and sciences.
The concept of patents is not broken, only the system used to award them and the companies that hoard them for no use but to crimp research areas. A system that could arbitrate disagreements subjectively would go far in prying open patents that are closed for no reason. Such a system could have opened the door to your colleague's mango research project and made a decent return on investment for the patent holder. Unfortunately, no one has the new mangoes, and the company has gained nothing from their patent.
I have been pwned because my
Is basically analogous to having a copy of the source code and each time a monkey spits out a page, we look at it and see if it's a match to the page we are holding.
Then the conclusion is drawn that if we can get it by some other way than actually copying it from the original, then we can use it.
Another example of this technique is that lets say I have the complete specs for an algorithim for an encryption technique, lets call it CSS. And I decide to not copy it, but derive my own program from this knowledge that I have of the specs.... is that new program legal? Ask the courts... I still think that Jon kid is still in deep water for it.
steve
You deserve? You _deserve_? Well, there are some people who maybe _deserved_ to live. They dont, however, because neither they nor their governments could afford the medicines due to the patents.
You _deserve_ nothing. Patents are a fiction that's been made up to promote the development of science for the benefit of society. The benefit to society is the basic justification of patents, and that benefit is by now very doubtful. Perhaps society would be better served by removing patent protection entirely and funding development in alternative ways. The inability of the medical industry to handle the ethical burdens of the issues may eventually make that necessary.
In practice I agree that specific methods should be patentable. Your specific method to clone a tumor suppressor gene should be patentable but anyone should likewise be able to devise other, cheaper, methods to clone the same gene. This is how traditional patents have worked. You can patent the specific method to do something, which is far less damaging than being able to patent what amounts to the actual goal. And only, _only_, if these are non-obvious methods to a person with experience in the field. That is, if you're racing against someone else to develop a specific method first, forget it. It's _obviously_ not inventive and 'deserving' of patent protection, or there wouldnt _be_ a race.
Wrong. The DOE paid for a large chunk of the Human Genome Project, and the NIH paid even more. Assorted federal agencies give money to most biomedical researchers in the US, and we're not expected to do anything classified. It truly is given to advance the cause of science. Although, yes, we don't get the kind of serious money that makes for really nice labs- but the crystallographers down the hall from me did manage to afford an Apple Cinema display. Some wannabe-free-market-conservatives would say that the NIH is a perfect example of government waste, but it's why the US, despite our educational problems, is a scientific giant and attracts people from all over the world. Even colleagues who regularly mock US culture and our "odd" priorities admit that government support of research is nearly unparalleled.
As for the wealthy idealists, there are lots of those, and some have a shitload of money. The Howard Hughes Medical Institute and Keck Foundation are two of the most prominent. The HHMI gives out so much money that professors under its wing are officially both "Professor of and HHMI Principal Investigator". Good stuff.