

Judge: Gene Patents Are Invalid - yanw
http://techdirt.com/articles/20100329/1506458769.shtml

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brianobush
Sounds like a sane judge.

Software patents might be brought down this way too. Koza used genetic
programming to build circuits that were patented (butterfly filter IIRC).

I wish the software patent nightmare would turn itself inside out and morph
into a contributors authoring papers (not patents) and submitting them to
relevant journals. The result might be more alternative approaches, prior
examples that perform better, etc. I think it would change the industry and
the products it builds. Just a dream maybe.

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thefool
very cool. It'll be interesting to see which companies file comments to the
appeal

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TrevorJ
The thing I have always wondered is, with Trademarks, in order to continue to
stake a claim to them a company must vigorously defend the claim. So for
instance, if trademark comes into wide use as a verb and the company that owns
it fails to defend the trademark they risk losing the right to it.

With these patents on genes, technically anyone who procreates is infringing
on the patent by copying the material without consent so when a company fails
to prosecute parents for for patent infringement are they setting themselves
up to lose that patent?

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doc-film
Another invalid area is that of Monsanto who have bought up many seed
companies, then proceeded to patent the seeds as their own. There is a rule
that ideas and patentable concepts must not be public knowledge, or known
about by others, prior to being patented. That's why you have to ensure no one
knows about your idea, before you patent it, those that do should be under a
ND.

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RevRal
Good job Judge Robert Sweet!

The consequences of these patents are quite monstrous.

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FlemishBeeCycle
Cautious excitement: How long until $EVILCORPORATION tries to get it appealed?

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kiba
With people starting to biohack in their own backyard, I am unsure that the
big corporations will be able to enforce their patents, thus their monopoly in
the future.

All the judge did was to make corporations not to waste money going after
biohackers in the not too distant future and force them to focus on generating
valuable innovation.

So it might turn out to be a good thing for the would-be evil monopolists.

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brown9-2
Anyone have any idea what a ruling like this (if it stands) would do to
companies like Monsanto?

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carbocation
Disclaimers: Am not in agriculture. Am not a lawyer. Am in human genetics.

Monsanto does things like this: (1) Take a plant that has agricultural value.
(2) Add a pesticide-resistance gene to that plant. (3) Patent the seeds. (4)
Sell at high price.

Given my (admittedly superficial) understanding of their practices, I do not
think that most of their products would be particularly susceptible to this
ruling. It is a bit murky because they may use gene patents to protect their
special seeds, in which case one could imagine new 'generic competition' of
sorts if they lose their gene patents but not their seed patents.

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jdc
[...] Christopher Hansen, a lawyer for the ACLU, [...] said about 20 percent
of human genes are patented.

That sounds absurd. Can anyone confirm/deny this?

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whyenot
Science 14 October 2005: Vol. 310. no. 5746, pp. 239 - 240 DOI:
10.1126/science.1120014

INTELLECTUAL PROPERTY: Intellectual Property Landscape of the Human Genome

Kyle Jensen and Fiona Murray

Summary: The impact of gene patents on downstream research and innovation are
unknown, in part because of a lack of empirical data on the extent and nature
of gene patenting. In this Policy Forum, the authors show that 20% of human
gene DNA sequences are patented and that some genes are patented as many as 20
times. Unsurprisingly, genes associated with health and disease are more
patented than the genome at large. The intellectual property rights for some
genes can become highly fragmented between many owners, which suggests that
downstream innovators may face considerable costs to gain access to gene-
oriented technologies.

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btilly
I like to see signs of emerging sanity in the patent world. Possibly that will
head us back to the sanity of killing lots and lots (hopefully all) software
patents.

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jacoblyles
Would this company have made the breast cancer detection procedure that they
had a patent on if they did not have the ability to protect it with a patent?

In the software world, the case against patents is very strong. In biotech R&D
costs can be in the millions or billions of dollars. It's a mistake to
reflexively apply the hacker's justified aversion to patents to other fields.

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anamax
> Would this company have made the breast cancer detection procedure that they
> had a patent on if they did not have the ability to protect it with a
> patent?

According to my reading of the case, the company didn't invent a breast cancer
procedure. Instead, they found a gene that has some involvement in breast
cancer and tried to claim suppressing said gene. They lost because their
patent didn't disclose or claim anything relevant to suppressing said gene.

IFRC, the judge said that they didn't invent anything, which they pretty much
conceded. Since you can't patent discoveries, only uses of discoveries to do
something, they lost.

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carbocation
The judge also slams them for trying to patent the scientific method (see
either page 152 or 153, if I remember correctly).

PDF: [http://www.aclu.org/files/assets/2010-3-29-AMPvUSPTO-
Opinion...](http://www.aclu.org/files/assets/2010-3-29-AMPvUSPTO-Opinion.pdf)

