
ACLU sues over patents on breast cancer genes - chaostheory
http://www.cnn.com/2009/HEALTH/05/12/us.genes.lawsuit/index.html
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elecengin
I always marveled at how you could patent genes, which seemed to me to be
"naturally occurring phenomena", which is supposedly not patentable. It is
even more preposterous when you consider that plant patents specifically
exclude tuber plants because the root that would be patented is also food, and
the patent office was too worried about preventing people access to food.

If you zoom out, though, and consider why patents exist in the first place,
the idea that a research institution deserves to profit from the fruits of
their research money is not that absurd. I think the question is not whether
patents should be issued for biotechnology research, but instead what the best
method is to protect investment in biotechnology research while not retarding
future work.

Also, on a side note, patents may be infringed upon for research purposes.
This is not holding back research, it is only slowing commercialized tests (or
maybe just increasing their cost). There is nothing to suggest that the
licensing terms offered by the patentee are exorbitant... The patentee is
merely trying to recoup some of their investment in the commercialized result
of their research.

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gustavo_duarte
Guaranteeing profit is not why patents exist in the first place. They exist
"to promote the Progress of Science and useful Arts."

It is not about profit, but rather about overall progress and benefits for
society at large. I think there's a good argument to be made that the current
system now falls short of this goal and new rules are required.

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tjic
> Guaranteeing profit is not why patents exist in the first place. They exist
> "to promote the Progress of Science and useful Arts."

...and the way that they promote the progress of science and technology is to
put a PROFIT MOTIVE in place, so that folks have more effective reasons than
pure altruism to engage in research.

Yeah, YOU might dedicate your career to finding important genes, instead of
launching a software startup, because you care that much about other people.

...but what VC is going to pay for your lab and staff if he can't make a
profit off of it?

Bottom line: intellectual property is a government created kind of property,
but it aligns incentives, and results in the progress of both science and
technology.

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mynameishere
_...but what VC is going to pay for your lab and staff if he can't make a
profit off of it?_

Plenty would, but you would have to use the more traditional method of
patenting called "never releasing your research".

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lutorm
At the end is what I consider the real argument: "You didn't do anything to
create it, just discovered something that already existed."

Patents are for inventions. Patenting genes is like patenting Pythagoras'
Theorem, and then arguing that everyone who uses that theorem must be
licensed. Or like if whoever determined that oxygen has 6 protons then
patented it and argued that everyone else must pay a license fee to breathe.

If you take the argument to its logical conclusion, you should realize that
it's absurd.

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CWuestefeld
I don't think your argument works. I mean, we've all seen the experiment where
you stick metal strips into a lemon and it becomes a battery. Just because
lemons exist doesn't mean we shouldn't be able to patent batteries that work
the same way.

I think that the weakness in the gene patents is that a patent is necessarily
an invention _to accomplish a particular purpose_ but the pharma companies are
filing patents as quickly as the genes can be identified, without the
slightest idea of that it does, let alone what it can be used for.

My understanding is that the fig leaf that they hide behind is to simply say
"it's for fighting cancer", but they have no idea if that's what it would
eventually be used for. And the patent office makes no judgment about how
effective a patent actually is for its stated purpose.

So here's my idea. It needs to get some specificity, but basically we should
say that a patent must include a _specific_ statement of what the invention's
use is. And the patent would only protect that stated usage; creating another
thing that's composed of exactly the same pieces as the patent mentions, but
used for a different purpose, would be OK.

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lutorm
Your argument doesn't work either, because in that case you could patent the
_invention_ of a battery consisting of metal strips and lemons. Lemons would
still be free to eat for everyone.

If they use the gene in a process, then that process is an invention and I
have no problem with them patenting that invention. But just patenting the
gene IS like patenting lemons.

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CWuestefeld
Maybe my analogy was poor, because I think that your final paragraph meshes
well with the idea I mention in my last paragraph -- I don't think we're
actually disagreeing.

That is, the use of BRCA1 _for a particular cancer treatment_ could be
patented. But BRCA1 itself is (under my proposal) still fair game, both on its
own as well as in other treatments that differ sufficiently from the patented
one.

As you say, lemons should always be fair game. I can patent its combination
with metal strips as a battery; that still leaves you free to patent an
alternate use, e.g., as a cleaning agent.

What I was trying (poorly, it would seem) to get at was that the fact that we
can observe an example of a mechanism or process in nature should not make
something unpatentable. Seeing a stick balanced across a stone might give a
caveman the idea for inventing the lever; the fact that nature prompted that
invention doesn't invalidate it, I don't thing (although there might be
questions about obviousness).

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ankhmoop
Regardless of the merits of the case, choosing to frame the gene-patent fight
in terms of reduced access to health care and breast cancer research is a
brilliant political move.

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cma
Nice comment on the origins of the patent:

[http://science.slashdot.org/comments.pl?sid=1231641&cid=...](http://science.slashdot.org/comments.pl?sid=1231641&cid=27942595)

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DanielStraight
If something would exist or not exist to exactly the same degree whether or
not you were ever born, it's absurd to claim ownership of it.

