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US Says Genes Should Not Be Patentable
Geoffrey.landis writes "A friend-of-the-court brief filed by the US Department of Justice says that genes should not be patentable. 'We acknowledge that this conclusion is contrary to the longstanding practice of the Patent and Trademark Office, as well as the practice of the National Institutes of Health and other government agencies that have in the past sought and obtained patents for isolated genomic DNA,' they wrote (PDF). The argument that genes in themselves (as opposed to, say, tests made from genetic information, or drugs that act on proteins made by genes) should be patentable is that 'genes isolated from the body are chemicals that are different from those found in the body' and therefore are eligible for patents. This argument is, of course, completely silly, and apparently the US government may now actually realize that."
You can't legally patent something with 7 billion instances of prior art, nor should you be able to acquire a patent that all seven billion people in the world will involuntarily infringe ten million times a day.
Thank you, Justice Department, for another flash of the blindingly obvious.
Of course, if the DOJ has to spell this out, and the institutes that control our federal research dollars in health still can't see it, how does this bode for truly cooperative health research in the US? Not well, I'm guessing.
So for illustration purposes, some company patents the gene for Sickle Cell Anemia for whatever reason and starts making money off of it somehow (royalties from folks studying the disease?), organization sues them for infringement and uses the money to saves the whales or whatever.
RIP America
July 4, 1776 - September 11, 2001
Wouldn't this at least keep them from declaring that fields adjacent to fields that use their seeds and somehow end up with genes from their "sterile" plants are somehow in violation of some kind of agreement or patent, since the genetic sequence itself can't be owned by Monsanto?
Now show me where you can find the isolated gene, the isolated cDNA, or other forms of the gene (apart from a the unisolated form appearing among 2.9 million base pairs of material) that make the isolate useful for diagnostic testing, genetic and proteomic research, and the like.
Nobody has patented the gene as part of a functioning human being (or animal, or natural organism), yet that is what you're claiming already existed. You still need to get from the natural form to the isolated form and explain how that is "discovery" rather than something made by man before you have much of an argument.
Geoffrey Landis may think that the argument is completely silly, but the "discovery" counterargument is equal rubbish. "Gene patents" do not claim the gene. They claim isolated sequences of DNA, cDNA, and the like that are only made by man. The district court ignored that fact, disregarding the chemistry and focusing upon the "information" encoded by the chemical, and of course also within the genome, to say that genes are not even eligible for patenting. Neither the Federal Circuit nor the Supreme Court are going to buy that argument.
What's more surprising to me isn't that the DoJ issued this amicus curiae brief, it's that they issued this even with former RIAA lawyers in its top echelons. If their top lawyers believe that companies should be "free" to control information, then they would no doubt have a problem with this brief.
On the other hand(s), they may not have a problem with freeing genes from patents, they may not personally believe what their former employers believe and were merely doing their jobs (which is pretty common among lawyers-- they turn into stalwart defenders of the worst ideas because that's how the adversarial legal system works), or they don't see the philosophical connection between strict control of copyright and strict control of any other "license" (for lack of a better term) on information.
"We are Microsoft. You shall be assimilated. Competition is futile."
Genes exist completely independent of man's awareness of them or not. By legal definition they are a discovery, not invention. Again, by legal definition, they do not and never have qualified for patent status. As such, I've never understood why they have ever been allowed in the first place.
Imagine someone patenting oil, air, cotton, atoms, so on and so on. All of these are discoveries, not inventions. Literally, allowing gene patents is the exact same thing as being required to pay a royalty on breathing and yet everyone says that would be completely absurd - and yet, we are all holding our collective breaths here.
Now if only I could patent stupidity in government...