Why would you say that I was wrong? You do realize that there is complete unanimity in the field that the Federal Circuit will reverse Judge Sweet. His decision is intellectually dishonest, wrong on the law, wrong on the facts and shows a complete bias toward scientific advancement and lack of respect for precedent.

Other than that he was spot on though.

Please do try and educate yourself.

-Gene

A patent gives the holder the right to exclude others from making, using or selling their invention. 35 USC 154. It does not give the holder the right to make, use or sell their invention. A monopoly is an exclusive right to a market, such as an electric utility company. An electric utility company has the exclusive right to sell electricity in a certain territory. Since a patent does not even given the holder the right to sell their invention, let alone an exclusive right to a market, it is clearly not a monopoly.

When a person describes a patent as a monopoly to be consistent they should also state that they have a monopoly over their car or over their house. In fact, they have more rights in their car and house than a patent gives the inventor over their invention, since you have a right to use and sell your car or house. A patent does not give these rights to an inventor over his invention. All invention are built upon existing elements (conservation of matter) and if the elements that the invention uses are patented, then the inventor will not have the right to sell their invention without a license.

Some economists argue that a patent is designed to give the holder monopoly power. Those economists who are consistent also state that all property rights give some monopoly power. The property rights are monopolies thesis shows how confused economic thought is on this subject. The only logically consistent definition of a monopoly is an exclusive right to a market.

People who suggest a patent is a monopoly are not being intellectually honest and perpetuating a myth to advance a political agenda.

For more information on patents and innovation see http://www.hallingblog.com.

Your statement above: “Also… SOMETHING IN ALTERED STATE DOES NOT OCCUR NATURALLY!”

The alteration they state in their claims ARE NATURALLY OCURRING. They are not something Myriad does to the DNA. – Again, your argument that there is any kind of alteration produced by Myriad is flawed.

Whether you agree with it or not isn’t the issue. The fact that you don’t approve doesn’t mean that others who do approve and do understand the patent laws shouldn’t receive patents.

-Gene

I personally think you don’t understand patent law. If you want to talk micro biology that is fine, but if you refuse to acknowledge that all that is required for patentability is alteration then there is not much to talk about. I think you would do very well to brush up on patent law before you make broad statements and jump to conclusions that my arguments are flawed.

What kind of arrogance does it take to believe that you know patent law because you are a scientist and then chastise me. If you choose to believe I am wrong, fine. Everyone is allowed to live with their own ignorance if that is what they prefer.

-Gene

I never said that I was sequencing BRCA1/2 in my lab. What I said was I know how much sequencing reactions costs and they are nowhere near the amount Myriad charges for this simple task.

In claim 1 you underlined “isolated”. Myriad/University of Utah did NOT invent the methodology of isolation of this gene or any other gene. You also underlined the word “altered” and you keep saying this means it’s not naturally ocurring. Maybe this is because you simply don’t understand molecular biology. The word “altered” in this claim means other than wild-type (non-mutant) form of the gene. This is something that occurs naturally. It’s not something Myriad scientists do after they isolate the gene. So your argument is completely flawed.

For all the claims you underlined “method of detection”. Once again, Myriad/University of Utah did NOT invent the methodology they use to identify the NATURALLY ocurring mutant forms of BRCA1/2.

Myriad would not be the most hated diagnostic company if they had favorable licensing terms for these genes. Actually any licensing would have been better than the complete monopoly they have over this diagnostic test.

You may think that everything you write is 100% true, but it’s probably because you don’t have a clear understanding of the science behind all of this. The claims I read in these gene patents are simply ridiculous, and so are your attempts to defend them.

I notice that you didn’t say anything about the 5 patents that claim diagnostic methods, because if you did you and anyone who is intellectually honest would have to completely agree with me that the ACLU lied in the complaint.

I am afraid we are going to have to agree to disagree regarding what you call mutant forms of genes. The claims clearly identify isolation (which does NOT occur in nature) and other things that require human intervention. The fact that you do not like genetic engineering that requires human action (which again, by the way, does NOT occur in nature) does not mean that I am wrong. What it actually means is that you are wrong.

Patents do drive innovation, they do not get in the way of innovation.

As for your admission that you are infringing the Myriad Genetics patent every day in your lab, that was really stupid of you. Substantively, however, you ignore the cost of figuring out the science involved and are focusing only on the costs after millions have been spent and many dead ends pursued. Even assuming it only does cost a few dollars, I suppose Myriad and others should donate the millions, or in some cases billions, and then only charge what it costs after all sunk costs are removed from the equation. That is simply absurd, and I am sure you realize it.

At least we agree that misinformation is bad. Of course, everything I wrote was 100% true, despite your attempts to challenge my indisputable factual assertions.

-Gene

Additionally, patents are supposed to drive innovation, not provide a single company the means to monopolize a genetic test. Myriad charges $3000 for simple sequencing of a gene that costs no more than a few dollars. I know this, because I do this every day in my lab.

I agree that misinformation can lead to bad decisions. Unfortunately, your article misinforms your readers about what these “gene” patents are really about.

I couldn’t agree with you more! Bravo and well said! I know of no statutory exceptions, and without patents there would be no research and development, so there would be no arguing whether patients are entitled to so-called second opinions. What they really want is for someone else to do the test, which is not a second opinion. But without the patent right we wouldn’t have the test so folks would just not be able to know whether they had the disease or were predisposed, which is so much better, right? Better that no one can have benefit and then everyone have benefit when the invention goes off patent. Absurd!

-Gene

Perhaps we would not have the sequence for this gene had there not been a patent incentive in the first place? Perhaps not this quickly at least.

You’re right Gene, as lawyer myself, I do not see any basis for the lawsuit in the US constitution. I think you put it well, above, by saying congress has a right to promote science, and it has done so. And if you say that a patent on a product violates a person’s free speech, then they all do. Absurd. I find it ironic that the ACLU, who’s usually a champion for the little guys, would want to weaken a system designed to protect them. A weakened patent system, means that companies with the biggest market share will rule.

You and the ACLU will find out soon enough exactly why your lawsuit is frivolous. The complaint is full of inaccuracies, and there is simply no justifiable basis for your claims. You are attacking a patent with an enabling clause giving Congress the right to issue patents. In this case the patent was issued and Article I, Section 8 provides no legal basis to challenge the validity of a claim. I am also troubled by the fact that the ACLU did not read the patents before filing the lawsuit. If you did you certainly would have realized that your claim that a gene has been patented is completely erroneous. The ACLU is simply using this in an effort to confuse the public and turn sentiment against the patent system with claims that are objectively baseless and false. To me, that is the definition of frivolous.

Be prepared to open your wallet on this one. The ACLU is going to be sanctioned.

-Gene

Frank Provasek

Board Member, ACLU of Fort Worth

I have enjoyed it, and on philosophical points we tend to agree. On the specifics, we’ll just have to see what happens in this case.

Thanks for a good discussion, and best to you and yours.

-dk

We are going to have to agree to disagree here, although I have really enjoyed the jousting with you (I hope you have as well).

I agree we need to keep basic science in the public domain, so our disagreement is not philosophical, just based in different views of the facts. I will say that one thing that does set me off are scientists who opine about what patents do to their research when what they say is not accurate. They are no doubt great scientists, but these folks sway opinions and they frequently pontificate as if they understand patent laws when in fact they do not. A lot of times they allow themselves to be blocked without valid reason. If they want to be honest and say they fear being sued because of the enormous potential liability that is one thing. Perception is important, deterring behavior is a real consideration. Saying that patents harm innovation is a terrible overstatement and without historical precedent. Patents force inventors to invent around. They are intended to be an impediment and cause creative alternative solutions and advances. So the patent system as a whole does not block innovation, it operates to specifically and directly encourage it. Of course, you have to innovate yourself and not copy others, which is what many (not all) want to do.

In terms of national security, I am admittedly weaving in my disapproval with the ACLU wanting pictures taken in criminal investigations to be divulged through FOIA. The pictures are inflammatory and unnecessary, and would only do damage, as Bush, Obama and all top military officials now agree. An accounting of what was uncovered and description of the actions taken to punish those at fault are enough. No need to give our enemies propaganda to encourage more jihad.

Cheers.

-Gene

I disagree. Among the claims is the sequence itself, just as with thousands of existing gene patents. Those are the claims that should be struck down

Your hyperboles are many and diverse, so far. For instance, I am certain the ACLU doesn’t want to destroy our national security. Nor do they wish to destroy our economy. They (like many outspoken scientists) want to invalidate patent claims that never should have been granted in the first place, to unaltered elements of nature. Nor is this a sanctionable complaint, it doesn’t meet the standard. It states a cognizable claim, as I have pointed out. These are but a few of your alarmist hyperboles.

I believe in free markets rather than monopolies supported by governments. Let’s keep the basic science in the public domain, and let any and all who find new and innovative ways to use that knowledge to create new and useful products do so, bring them to market, and see which thrives.

Some people like government to interfere with markets, not me.

best,
David

Can you please point to my hyperbole?

It seems you agree with me in the end. None of Myriads claims will be invalidated because none of them cover “unaltered laws of nature, or its unaltered products.” All of the claims are either methods or require isolation or alteration. This is exactly why the ACLU should be and will be sanctioned. They are making allegations that simply are not supported by the facts they allege. A motion to dismiss should be granted, and if I were the judge sanctions would be issued. At the very least attorneys fees for Myriad should be awarded.

-Gene

You’re engaging in a bit of hyperbole as well. Patent claims are severable, and only those covering the genes themselves are likely to be struck down. So, in fact, the majority of Myriad’s claims will remain intact, since as you point out, most of the claims are on inventive and unique methods.

Patents won’t collapse as an institution, just those on unaltered laws of nature, or its unaltered products. Since Parker v. Flook and Gottschalk v. Benson, the law on this has been clear.

relax! The world as we know it won’t end.

-d

I am not one to throw around the word “frivolous” because everyone knows that Rule 11 has no teeth. District courts simply do not issue sanctions. What makes this case very different is that the ACLU has lied in the complaint. They are characterizing the patents as covering genes, which the clear majority of the claims they are challenging do no such thing. That is not a stretch, it is an outright lie.

Your understanding of Article I, Section 8 is also flawed, although a popular misconception by many. This clause gives Congress the power to allow for the issuance of patents. The purpose is to advance science, no doubt. So as long as Congress sets up a process that will promote progress that is all that could be required. It is undeniable that the patent laws do promote progress. Each patent does not need to promote progress, and in fact does not. They system and protection regime is the focus of this clause, and the clause cannot be used to judge any particular patent.

Likewise, the First Amendment arguments are ridiculous as well. The First Amendment would have to be viewed as amending Article I, Section 8 in order for the ACLU to be correct, which obviously is absurd. The same people who created the Bill of Rights agreed to the Constitution, and never thought that to be the case.

If the ACLU wins there will be no patent system because if patent laws violate the First Amendment with respect to genes then they would violate the First Amendment with respect to everything. If patent laws are viewed as a law the infringes upon free speech that ends proprietary protections for all inventions. Talk about being irresponsible. It is not enough for the ACLU to want to destroy our national security, they want to destroy our economy as well.

-Gene