
Controversial U.S. bill would lift Supreme Court ban on patenting human genes - pseudolus
https://www.sciencemag.org/news/2019/06/controversial-us-bill-would-lift-supreme-court-ban-patenting-human-genes
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areoform
Okay, I understand the arguments against this bill and can sum them up easily;
patents are meant for _inventions_ whereas these are discoveries. Genes and
their properties exist in nature and the discoverers stumbled on to them
through some variant of effort and random chance.

Logically, if they exist by default and we are making observations about them,
then how do we get to patent/own the very idea of them? An absurd parallel
would be Charles Darwin patenting a giant tortoise - an entity that exists in
nature - upon his discovery and requiring a license fee each time a natural
history museum displayed one.

But that's one side of the story; what's the argument _for_ the bill? Is there
a logical reason why the patent system should be expanded to include entities
you observe in nature?

I am sure the above can be formulated with more precision and panache, but as
far as I can tell, I'm not sure what the equivalent set of ideas are for the
people arguing for this bill. The best that I can come up with is an appeal to
utility (i.e. it would incentivize X, Y or Z). However that's not a strong
enough argument - what's the "steel man" that's missing from this
conversation?

~~~
travisp
The reason you're confused is because these articles are oversimplified and
these patents aren't literally gene patents or patents of the genetic
sequences themselves. I believe the so-called "gene patents" are "composition
of matter" patents just like the original aspirin patent. I expanded on this
more in a top level comment, but nobody (including this bill and the original
gene patents) is calling for simply patenting entities that exist in nature.
It's uncontroversial that this cannot be done.

~~~
mcv
I'm not so sure. If a company discovers a rare flower that produces a compound
that has useful properties for something, I bet that company wants to
monopolise the use of that particular flower. If this law allows that, they
will. If this law doesn't allow that yet, the next one might.

~~~
GuB-42
The patent wouldn't be for the flower, but for the use of that flower for
producing that particular compound. Or they can patent useful derivatives of
that compound.

The idea is to find man-made process involving something unpatentable and
patent that process. The pharmaceutical industry is doing it regularly. And I
would say it is the patent system working as intended. Others can still do
research on that flower and you get rewarded for your discovery.

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dannykwells
The "competition with China" angle is going to (already has) drive much of the
decay of our moral society in the US.

How can we compete with China if we don't <have a surveillance state>/<edit
embryos with CRISPR>/<patent everything possible>/<eliminate all protections
for laborers>?

Much like Europe has with the US, there is an argument to be made that we
should just let them have their piece of the world and return to living happy,
normal lives that are less stressed and more focused on being good to one
another.

~~~
Creationer
What is the problem with gene editing? It will allow us to remove hereditary
diseases from the population, and enhance the capabilities of the next
generation. Being in control of our own genome seems completely reasonable.

~~~
dannykwells
Likely a troll comment but I'll respond like it's not since this is so
important:

Ummm, have you seen Gattaca? Let me spoil it for you: it doesn't end well.
Every reasonable scientist working in CRISPR is against editing the human
germline. Here is a good piece on it:

[https://www.nature.com/news/don-t-edit-the-human-germ-
line-1...](https://www.nature.com/news/don-t-edit-the-human-germ-line-1.17111)

Also note, why do you assume that "we" would be in control? Suppose a
government took control of your genome? Or a private company? Given the
expense there is almost no way it would be democratic.

~~~
simplespace433
I watched Gattaca and drew the opposite conclusion. The film defends science
through by walking us through the consequences of clinging to the superstition
of our ancestors. Being genetically inferior does not wipe away the human
drives to belong and achieve. The life of those less fortunate is harder and
it is dishonest to pretend that everyone has an equally fantastic life. The
main character suffers because of the careless choice his parents made. Even
though his parents change their views and recant with their second child, the
protagonist remains left behind.

In the world of Gattaca we see that only a few religious nut jobs inflict
natural conception on their children. They are called god-born because they
are the product of religious extremists. Genetic engineering is common and
accessible to all classes. For example portable genetic testing services so
ubiquitous that they are available at company party.

As viewers, we should take away what I means to choose to cripple another
human permanently. You should think long and hard about winning Jesus points
for a second life by consigning a real person with the same ability to feel
and dream to Hell in this life.

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rayiner
When an article on a simple one-page draft bill doesn’t even discuss the text
of the bill, that’s bad journalism. Here is the actual bill:
[https://www.tillis.senate.gov/services/files/E8ED2188-DC15-4...](https://www.tillis.senate.gov/services/files/E8ED2188-DC15-4876-8F51-A03CF4A63E26).

It is actually not directed to gene patents specifically, but totally
overhauls section 101 of the patent act, which addresses what kinds of
inventions can be patented. The part that draws concern is the following:

> No implicit or other judicially created exceptions to subject matter
> eligibility, including “abstract ideas,” “laws of nature,” or “natural
> phenomena,” shall be used to determine patent eligibility under section 101,
> and all cases establishing or interpreting those exceptions to eligibility
> are hereby abrogated.

Those judicially creates exceptions have been used to preclude patenting of
genes, algorithms, etc. On the other hand, the law offsets that somewhat by
beefing up the utility requirement:

> The term “useful” means any invention or discovery that provides specific
> and practical utility in any field of technology through human intervention.

That totally new requirement will be construed by courts, but seems to be
directed to limiting the effect of the previous paragraph.

In the land of pure speculation, I think gene patents will still be invalid
under this new section 101, because the invention must arise through “human
intervention.” The bigger effect will probably be on software patents, where
the “abstract idea” exception is heavily used, but where the “human
intervention” test will certainly always be satisfied.

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kevin_b_er
And invalidate Alice Corp. v. CLS Bank International by making software
patents easy again. This is a gift to the patent trolls and medical
extortionists.

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inetknght
Patents of that which is all around us should never be permitted. Patents are
supposed to protect unique ideas and processes. If what you've come up with is
readily available in nature then is it really so unique?

~~~
Retra
Small nitpick, but patents protect novelty, not uniqueness. If someone creates
a human gene that is not available in nature, then it is novel.

~~~
mac01021
Still, though, what is a gene? Is it just a nucleotide sequence, as described
using the letters A, C, G, & T?

For a body of text like that, isn't copyright the more appropriate IP
construct?

A patent might be valid if it referred to _a particular process_ for
synthesizing that gene in the form of a DNA molecule.

~~~
jerf
I've believed for about 20 years now that the law still has never fully
grappled with the concept of something that is both an expression of some sort
and yet also a machine. Computer code is the real-world example of that, but
genetics are fairly similar.

I think it's why decisions about things like the copyrightability of APIs have
been so complicated; the law has still never deeply grappled with the question
of how to harmonize the several deeply different legal regimes that
"executable expressions" can be affected by. What is the set-intersection of
patents and copyrights? That's a really thorny question if you sit down and
try to take it seriously.

~~~
mac01021
What does the law say about recipes of the sort that you find in cookbooks?

~~~
jerf
Mostly that they aren't copyrightable at all, so it's not a helpful analogy
since the law equally clearly holds that software is.

I've heard anecdotally that that's why there's so many cooking blogs that
bloviate endlessly about how the recipe will look when it's done and what it
made them feel when they ate it first and maybe just a bit of history about
the region where it's from before finally almost-begrudgingly consenting to
share the recipe, because that's all copyrightable content that can't be
legally stolen, whereas if they just posted a bare recipe, anybody could walk
off with it.

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Real_S
The proposal can be found here:

[https://www.tillis.senate.gov/services/files/E8ED2188-DC15-4...](https://www.tillis.senate.gov/services/files/E8ED2188-DC15-4876-8F51-A03CF4A63E26)

Relevant quote: "No implicit or other judicially created exceptions to subject
matter eligibility, including “abstract ideas,” “laws of nature,” or “natural
phenomena,” shall be used to determine patent eligibility under section 101,
and all cases establishing or interpreting those exceptions to eligibility are
hereby abrogated."

------
aqme28
Can someone explain how exactly a law can overturn a Supreme Court ruling?
Doesn't it tend to go the other way?

~~~
matthewmcg
In the U.S. legal system, it depends whether the ruling is interpreting a law
or a constitutional limitation.

If the court is interpreting a law passed by the legislature, the legislature
is free to change the law. In effect, they would be saying "no, you
misunderstood us--the law should be interpreted this way and we're revising it
so that's clearer." Sometimes the bill drafters are very explicit about this,
including a statement in the preamble to the bill or in the legislative
history that the bill is being drafted for the specific purpose of overriding
X decision.

(Tracking this is challenging--see this article for a good discussion
[https://www.repository.law.indiana.edu/cgi/viewcontent.cgi?a...](https://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=2695&context=facpub))

On the other hand, if a court finds that a law is unconstitutional, that means
that the legislature does not have the authority to pass the law to begin
with. A constitutional limitation can't be overridden by statute.

In this case, the Patent Act is a law passed by Congress and can be changed by
Congress within the limits of its constitutional authority.

~~~
vageli
> On the other hand, if a court finds that a law is unconstitutional, that
> means that the legislature does not have the authority to pass the law to
> begin with. A constitutional limitation can't be overridden by statute.

In the United States, the legislature most certainly has the authority to
modify the Constitution and has done so on several occasions.

~~~
jkaplowitz
Congress has the authority to _propose_ amendments to the Constitution.
Approval from a supermajority of states is needed, without which Congress
can't force the amendment through.

(State constitutions vary in how they can be amended.)

~~~
vageli
I was under the impression that no body has unilateral authority to create law
(besides the creation of law through court precedent), so I'm not sure what
value this distinction adds. That's like saying Congress doesn't make laws,
they only propose them. Well, of course that's true but we tend to say that
Congress makes the laws as a matter of course. I mean, we even call them
"lawmakers", not "lawproposers".

~~~
jkaplowitz
A veto-overriding supermajority of both houses of Congress (or a regular
majority of each house plus the President's signature or acquiescence) has
absolute authority to create statute law at the federal level, within the
authority granted to it by the US Constitution; and this statute law can
override any other type of federal, state, or local law except the federal
Constitution itself.

No other authority has to approve before the change goes into effect, and the
Supreme Court will go along with such changes even if they change court
precedent unless the law violates the constitutional restrictions on Congress.
Most proposed laws don't, including the one we're discussing here.

By contrast, for a federal constitutional amendment, even if every single US
Senator and every single member of the House of Representatives votes yes
(note that the President is not involved in this process), if the states take
no action, no amendment happens.

Very different.

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polygotdomain
This bill would be of no benefit to anyone other than the companies requesting
the patents (well, maybe the lawyers for said companies too). There would be
no benefit to society, as the patents would be used to extract profits from
patients. There would be no benefit to science, as any subsequent discovery
opens up the possibility of endless litigation. These patents would decrease
competition within the pharmaceutical industry.

We have, as a society, shifted much of our research and development to the
private sector. It should be no surprise that the private sector now seeks to
recoup their expenditures by protecting them by whatever means necessary.

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perpetualpatzer
I've not been able to find the proposed language. Does anyone know whether
there's any planning for the exhaustion of the patent? It's scary to think of
the implications human gene patentability without at least carving it out from
Bowman[0], which said producing crops with a patented gene, even by
traditional means, was infringing.

[0][https://www.supremecourt.gov/opinions/12pdf/11-796_c07d.pdf](https://www.supremecourt.gov/opinions/12pdf/11-796_c07d.pdf)

------
ummonk
>Competition with China, where no comparable restrictions exist in the patent
system, may have motivated the lawmakers, Rai says.

Isn't that backwards? If they don't have comparable restrictions, why
hamstrung American companies by making them respect patents that Chinese
companies don't have to respect?

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travisp
I find most of the language discussing this misleading because nobody is
actually talking about patenting human genes.

If you're curious about hearing a non-straw-man opinion about "gene" patents,
I'd suggest this short article that discusses the BRCA patents and least
describes what the patents were actually about. If you're really curious,
there are longer more comprehensive sources than this opinion piece:

[https://www.nytimes.com/roomfordebate/2013/06/06/can-the-
hum...](https://www.nytimes.com/roomfordebate/2013/06/06/can-the-human-
blueprint-have-owners/a-century-old-form-of-patent)

> Of course, the patent system only protects new things. You cannot get a
> patent on the raw, untouched form of a molecule as it exists in nature.

> However, you can get a patent for identifying, isolating and purifying
> something that already exists in the world. For example, the inventor of
> aspirin at the turn of the 20th century isolated and synthesized the active
> ingredient in willow bark, which people had chewed for thousands of years to
> relieve pain and fever.

> The greatest confusion in the debate about the Myriad case stems from
> failing to understand this distinction. Unfortunately, the Supreme Court
> contributed to the confusion when it took the case to answer: “Are human
> genes patentable?” Patent experts scratched their heads, because the answer
> is undisputed: No, human genes in their naturally occurring form are not
> patentable.

> But Myriad’s patents don’t cover genes in their naturally occurring,
> unisolated form, just as the aspirin patent did not cover chewable bark.
> Rather, the BRCA1 and BRCA2 patents claim the genes as isolated, purified
> and used in a scientific or medical context.

The gene patents are "composition of matter" patents that apply the genes to
particular contexts. I'm not going to argue about the appropriateness of those
patents here (which would also seem to apply to the aspirin patent), but I do
think it's important to understand what the actual debate is about.

For example, it's also almost certainly false that gene patents covered the
entire genome (a response here:
[https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3979127/](https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3979127/)
), and it's false that just because one component of a patent mentions a
genetic sequence that all use and research of that genetic sequence is a
violation of the patent (because the patents include more than just the gene
sequence -- they are a specific application).

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shmerl
Who even votes for such corrupt bills, and how much bribe money did they
receive to do it?

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ptah
how is this not tantamount to a constitutional amendment to curtail the
supreme court's legal authority like this

~~~
rolltiide
Supreme Court rules on particular laws and outcomes of nuanced regulations,
and in this with patents it has ruled on vague administrative procedures that
the patent office promulgated which happened without legislative guidance.

That means Congress can always just change the law.

The Supreme Court didn't say "gene patents are unconstitutional" they said
"patents under this x,y,z regulation don't fit x,y,z part of the constitution
being argued, we agree/disagree with the lower court". So Congress changes
x,y,z regulation with a,b,c law to provide clarity, and it may create the same
outcome as before, amongst other outcomes.

~~~
ptah
What I mean is, they are proposing a law that contradicts a supreme court
ruling, which seems unconstitutional

~~~
Retra
The constitution provides a framework for this contradiction.

\+ Congress has the power to propose law. \+ The court has the 'checking'
power to rule on the law. \+ Congress has the 'checking' power to change the
law to invalidate that ruling. \+ The court has the 'checking' power to rule a
law unconstitutional. \+ Congress has the 'checking' power to change the
constitution to invalidate that ruling.

Congress always has the power to override the court.

~~~
rolltiide
re-reading this whole thread, and the ways that multiple other people already
explained it including myself, I don't think grandparent OP is going to get
it.

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jimbob45
Agreed. Kill all trade with China. I'll eat the price increases if it means we
can stop trying to compete with the regime subsidizing NK.

~~~
sombremesa
I highly doubt you can eat price increases for the entire US population. These
things don't just affect you, so it's a bit selfish to take such a "well _I
'm_ going to be okay" attitude.

~~~
jimbob45
Ad hom. Also we could just implement a progressive tax on the US pop and
redistribute it to those who would get hit the hardest.

In reality, I don't think we're going to stop trade with China, I'm just
saying I'd be okay with it and that surface-level concerns with such an idea
are easily solvable.

~~~
rotrux
At first I'm sure you would be.

