Yes, there is remarkably little outrage on patentlyO and other blogs about this case, a good indicator that patent people aren't too worried about it =) You're exactly right, the adrenaline case is sort of an outer bound and Myriad is a great opportunity to rein it in. I predict a war of silly molecular biology analogies in the Sup Ct: are restriction enzymes like 'molecular scissors snipping out piece of DNA' or are they 'complicated and innovative human constructs that chemically react with the DNA molecule'
I was pointing out a practical consequence, not a legal one. IE it would technically be illegal for all those people to violate the patent by say doing the BRCA1 screening test, BUT it would be very difficult (in my opinion) for the patent holder to discover this form of patent violation unless it was being done on a large, commercial scale.
After skimming the decisions (well summarized on Wikipedia, of all places), Myriad no longer has "method claims directed to “comparing” or “analyzing” DNA sequences" within the scope of its patent (Fed. Circ via remand from Sup. Ct. in light of Prometheus decision). As the last paragraph of the wikipedia article suggests, this restriction in Myriad, when read with Bilski and Prometheus, suggests that 'diagnostic test' claims, are unpatentable!
I personally think there's been a lot of hysteria over what it means to patent a human gene. The reason everyone is so upset is of course, if things were taken to an extreme, then we'd have these negative consequences everyone is worried about. The Sup Ct.'s remand and grant of 2nd writ to the Fed.Circ. suggest they think the Fed. Circ got it wrong (in that it is a procedurally unusual step, I can explain more fully if anyone is really interested in Fed.Circ - Sup Ct tension).
The two issues remaining are: #1 can you even patent isolated DNA sequences at all and #2 can you patent cancer drug assays relating to a given sequence? As far as #2, from my rusty cancer-drug assay knowledge, I believe the issue is the chemical interaction of potential drugs with the target gene sequence as a way of fighting the cancer, which is a step up from simply comparing gene sequences, I rate the odds of the Supreme Court striking this one at 50-50. Re: #1, this follows a very old case that examined what exactly is manmade and patentable vs a natural product and unpatentable. In that case, adrenaline (or some other hormone) was extracted and deemed nonpatentable BUT purified adrenaline had enough manmade invention to be considered patentable. I think the Supreme Court is leaning towards (I'd give 80% odds) considering isolated DNA sequences nonpatentable, which would be a pretty landmark patent decision. My best guess - they view isolated DNA as something that exists as part of a larger whole and is extracted or cut out vs the Fed Circ which puts a lot of weight in the fact that isolated DNA sequences (at least in Eurkaryotes) don't exist in nature on their own.
Technically a patent is a negative right, or right to exclude others. The 'exclusive right' is a very common misconception, eg a patent on a new pharmaceutical doesn't give you the positive right to use it (even on yourself) until it is FDA approved. So practically speaking the patent holder holds the right to prevent others from using the probe sequence, which is great except they have a pretty serious enforcement problem - they might be able to prevent companies from selling that particular probe sequence commercially (if eg it appears in a catalogue), but they have very little recourse if a researcher builds the probe and uses it in-house.
Also their patents run out after 20 years which means these genes (really the patented uses as mentioned above) will forever be in the public domain. Sci-fi envisions the possibility that ordinary people will one day have the capability to do cheap gene-engineering on their own, so I think this is a public good. The analogy being today's level of genetic engineering technology is like the vacuum tube computers the size of a room, but one day people will be able to build or buy a much more powerful system for ~$2000.
I would say the biggest problem facing the PC gaming industry isn't DLC or DRM so much as it is lack of content and lack of fun.
I think Steam and similar services are a remarkable bridge between the old school copy protection and the new-school pirates. They're not onerous, cost nothing (in and of themselves), and actually have a moderate benefit: games that automatically update and patch, as well as no longer having your rights to a game being tied to a physical computer or disc.
DLC -- well, I hate it, but I also don't play the lowest common denominator type games that seem to have the most issues with it. I am ok with never having slightly different looking guns/armors/whatever.
What I have noticed is how boring and limited many games are. A lot of games are either tired old sequels, follow the same formula as every other game in their genre, are horribly executed/developed, or suffer from serious balance/AI issues. It's getting to the point where that $50-60 investment in a new game is becoming a very difficult decision for me, because a great sub-$20 game could offer just as much 'fun' value. Of course, a very few of the $60 games offer mega, mega value, the most notable example being Starcraft II, with a single player, vibrant multiplayer scene, user developed arcade games, etc. Skyrim was fun, but after grinding up to level 50, I felt a kind of revulsion at the thought of starting with a level 1 character.
Anyways to compound this problem, the industry now engages in shady practices with regards to video game reviews. A bad game will have an 'embargo' meaning all reviewers must sign an agreement: that they won't publish their review until the launch date. There's even more gaming (pun intended) of the system by allowing 'exclusive' reviews to be published if they give the game a high enough score. This wasn't such a big deal circa 1999, but now the craze is pre-sales and, you guessed it, 'free' DLC for pre-orders. This all came to a perfect storm with Aliens: Colonial Marines, where a popular movie franchise spawned huge presale numbers, but the game itself was beyond shoddy (Metacritic score below 50), and hugely benefitted from the review embargo. Even more disturbing are allegations that the review version of the game was essentially vaporware, that was 0% related to the finished product.
Thus, I feel the real problem is a corruption of journalistic integrity. If we can get fair, timely, and relatively unbiased reporting about video games, I have no doubt that voting-with-dollars will absolutely work. However, if we continued with this subversion of professional reviewers, it actually continues to make shoddy games at least break even, which we can't have.
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Yes, there is remarkably little outrage on patentlyO and other blogs about this case, a good indicator that patent people aren't too worried about it =) You're exactly right, the adrenaline case is sort of an outer bound and Myriad is a great opportunity to rein it in. I predict a war of silly molecular biology analogies in the Sup Ct: are restriction enzymes like 'molecular scissors snipping out piece of DNA' or are they 'complicated and innovative human constructs that chemically react with the DNA molecule'
I was pointing out a practical consequence, not a legal one. IE it would technically be illegal for all those people to violate the patent by say doing the BRCA1 screening test, BUT it would be very difficult (in my opinion) for the patent holder to discover this form of patent violation unless it was being done on a large, commercial scale. After skimming the decisions (well summarized on Wikipedia, of all places), Myriad no longer has "method claims directed to “comparing” or “analyzing” DNA sequences" within the scope of its patent (Fed. Circ via remand from Sup. Ct. in light of Prometheus decision). As the last paragraph of the wikipedia article suggests, this restriction in Myriad, when read with Bilski and Prometheus, suggests that 'diagnostic test' claims, are unpatentable! I personally think there's been a lot of hysteria over what it means to patent a human gene. The reason everyone is so upset is of course, if things were taken to an extreme, then we'd have these negative consequences everyone is worried about. The Sup Ct.'s remand and grant of 2nd writ to the Fed.Circ. suggest they think the Fed. Circ got it wrong (in that it is a procedurally unusual step, I can explain more fully if anyone is really interested in Fed.Circ - Sup Ct tension). The two issues remaining are: #1 can you even patent isolated DNA sequences at all and #2 can you patent cancer drug assays relating to a given sequence? As far as #2, from my rusty cancer-drug assay knowledge, I believe the issue is the chemical interaction of potential drugs with the target gene sequence as a way of fighting the cancer, which is a step up from simply comparing gene sequences, I rate the odds of the Supreme Court striking this one at 50-50. Re: #1, this follows a very old case that examined what exactly is manmade and patentable vs a natural product and unpatentable. In that case, adrenaline (or some other hormone) was extracted and deemed nonpatentable BUT purified adrenaline had enough manmade invention to be considered patentable. I think the Supreme Court is leaning towards (I'd give 80% odds) considering isolated DNA sequences nonpatentable, which would be a pretty landmark patent decision. My best guess - they view isolated DNA as something that exists as part of a larger whole and is extracted or cut out vs the Fed Circ which puts a lot of weight in the fact that isolated DNA sequences (at least in Eurkaryotes) don't exist in nature on their own.
Technically a patent is a negative right, or right to exclude others. The 'exclusive right' is a very common misconception, eg a patent on a new pharmaceutical doesn't give you the positive right to use it (even on yourself) until it is FDA approved. So practically speaking the patent holder holds the right to prevent others from using the probe sequence, which is great except they have a pretty serious enforcement problem - they might be able to prevent companies from selling that particular probe sequence commercially (if eg it appears in a catalogue), but they have very little recourse if a researcher builds the probe and uses it in-house.
Also their patents run out after 20 years which means these genes (really the patented uses as mentioned above) will forever be in the public domain. Sci-fi envisions the possibility that ordinary people will one day have the capability to do cheap gene-engineering on their own, so I think this is a public good. The analogy being today's level of genetic engineering technology is like the vacuum tube computers the size of a room, but one day people will be able to build or buy a much more powerful system for ~$2000.
I would say the biggest problem facing the PC gaming industry isn't DLC or DRM so much as it is lack of content and lack of fun. I think Steam and similar services are a remarkable bridge between the old school copy protection and the new-school pirates. They're not onerous, cost nothing (in and of themselves), and actually have a moderate benefit: games that automatically update and patch, as well as no longer having your rights to a game being tied to a physical computer or disc. DLC -- well, I hate it, but I also don't play the lowest common denominator type games that seem to have the most issues with it. I am ok with never having slightly different looking guns/armors/whatever. What I have noticed is how boring and limited many games are. A lot of games are either tired old sequels, follow the same formula as every other game in their genre, are horribly executed/developed, or suffer from serious balance/AI issues. It's getting to the point where that $50-60 investment in a new game is becoming a very difficult decision for me, because a great sub-$20 game could offer just as much 'fun' value. Of course, a very few of the $60 games offer mega, mega value, the most notable example being Starcraft II, with a single player, vibrant multiplayer scene, user developed arcade games, etc. Skyrim was fun, but after grinding up to level 50, I felt a kind of revulsion at the thought of starting with a level 1 character. Anyways to compound this problem, the industry now engages in shady practices with regards to video game reviews. A bad game will have an 'embargo' meaning all reviewers must sign an agreement: that they won't publish their review until the launch date. There's even more gaming (pun intended) of the system by allowing 'exclusive' reviews to be published if they give the game a high enough score. This wasn't such a big deal circa 1999, but now the craze is pre-sales and, you guessed it, 'free' DLC for pre-orders. This all came to a perfect storm with Aliens: Colonial Marines, where a popular movie franchise spawned huge presale numbers, but the game itself was beyond shoddy (Metacritic score below 50), and hugely benefitted from the review embargo. Even more disturbing are allegations that the review version of the game was essentially vaporware, that was 0% related to the finished product. Thus, I feel the real problem is a corruption of journalistic integrity. If we can get fair, timely, and relatively unbiased reporting about video games, I have no doubt that voting-with-dollars will absolutely work. However, if we continued with this subversion of professional reviewers, it actually continues to make shoddy games at least break even, which we can't have.