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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."
Because it will affect their monopoly, which is anti-capitalist. http://www.sourcewatch.org/index.php?title=Monsanto,_Genetic_Pollution_and_Monopolism
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That's my basic take on it as well.
Genetic modification and tailored organisms should be patentable. For example, if someone were to develop a useful modified single celled organism that processed sewage into biofuel, I could see patenting that as valid. It's engineering after all, just with genes instead of gears.
But discovery has never been patentable in any other field, and that's what's being discussed in TFA. You can't patent if there's prior art, can't patent something you've found rather than made, and can't patent abstract scientific knowledge. You cannot patent the lever or pulley, and in a mechanics to biology comparison, those are the best analogues to genes. Except it's even worse, because those two examples were developed by humans in the first place, so at least somebody long dead could claim ownership, whereas genes are strictly a natural occurrence.
Erotic is when you use a feather. Exotic is when you use the whole chicken.
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.
Except in patent law, there is a distinction between discovery and creation, at least in theory.
It is arbitrary where we choose to differentiate, you're right about that. But the line is drawn on the basis of observation versus utilization.
If I observe that objects of differing mass fall at the same velocity if air resistance is taken away from the equation, I cannot patent that. If I use this observation to determine that slowing decent via increasing surface area is possible, and create a parachute, I can patent that. Or I could if those examples weren't hundreds of years old and therefor covered under prior art.
Identifying genes, where they are and what they do, is observation. Tinkering with them is utilization.
Erotic is when you use a feather. Exotic is when you use the whole chicken.
It may be more complex, but that does not make it an invention.
Show me where I can find a ratchet wrench, and I'll call it a discovery.
On the other hand, I can tell you where to find pretty much all the genes that are patented - in organisms that nature derived on its own.
Now - if, on the other hand, some company designs a gene, that does something that has never existed in nature - that'd be an invention. But moving genes from a fish into a plant isn't an invention, any more than adding "on the internet" onto already existing technology makes that worthy of being patented. Very neat, and you should probably be allowed a patent on the technology used for it.