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SCOTUSwatch: Gene Patents (Page 2)
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Apr 23, 2013, 03:32 PM
 
Originally Posted by The Final Dakar View Post
Tough but fair question. Not sure you'll like my answer, though. Honestly, I'm not an objective participant here, doubly so given that we're talking about the medical field. I think if its possible the patent infringes on nature, you side with nature.
I suppose you're not at all concerned that inventors will either stop inventing in the medical field, or they will decline to reveal how their inventions work. Why don't we take such a heavy-handed position with non-medical patents too? "Sorry Samsung, all your patents are null and void because **** you that's why. It's better for the rest of us if you catch a tough break. Plus we don't really like you." What's wrong with that philosophy for all patents?


BRCA was always the breast cancer gene, people just didn't know it.
Yeah, and what good does it do us until we know it? Knowledge-based property is the basis of all patents. Same goes for the light bulb or the cotton gin. The light bulb was always the light bulb, people just didn't know how to build it. Electricity and incandescence are properties of nature, and who cares if there is a way to frame the patent as an application of those properties rather than a discovery of them?
     
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Apr 23, 2013, 03:40 PM
 
Originally Posted by Uncle Skeleton View Post
I suppose you're not at all concerned that inventors will either stop inventing in the medical field, or they will decline to reveal how their inventions work. Why don't we take such a heavy-handed position with non-medical patents too? "Sorry Samsung, all your patents are null and void because **** you that's why. It's better for the rest of us if you catch a tough break. Plus we don't really like you." What's wrong with that philosophy for all patents?



Yeah, and what good does it do us until we know it? Knowledge-based property is the basis of all patents. Same goes for the light bulb or the cotton gin. The light bulb was always the light bulb, people just didn't know how to build it. Electricity and incandescence are properties of nature, and who cares if there is a way to frame the patent as an application of those properties rather than a discovery of them?
Having a bad day? This post seems out of character and oddly obtuse.
     
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Apr 23, 2013, 03:56 PM
 
Originally Posted by The Final Dakar View Post
Having a bad day? This post seems out of character and oddly obtuse.
Huh? If you don't have an answer that's fine with me. If you do have an answer I'll wait patiently.

Edit: I couldn't figure out what was supposed to be obtuse, maybe it's that you really are opposed to the concept of patents? I admit it, that was lost on me.
( Last edited by Uncle Skeleton; Apr 23, 2013 at 04:20 PM. )
     
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Apr 23, 2013, 04:22 PM
 
Originally Posted by Uncle Skeleton View Post
Why are you mocking the terminology you introduced to the thread?
I'm mocking your unintelligible statement.
Originally Posted by Uncle Skeleton View Post
That's false. I guess this explains your erroneous position this whole time.
Wikipedia says discovered in 1991 and patented in 1994.

Originally Posted by Uncle Skeleton View Post
It became testable precisely because of the work behind their patent application. That test is the patent.
It was always testable. Coming up with a test doesn't magically make something exist for you to test for it.

Originally Posted by Uncle Skeleton View Post
Then explain why the same reasoning doesn't invalidate all patents on agricultural plant and animal strains. How can they be patent-able if they are obvious?
Because no-ones stupid enough to try to patent a way to cross breed plant and animals.

Originally Posted by Uncle Skeleton View Post
The sequence of the gene they isolated (for the first time in history) was novel. Discoveries aren't patentable, but applications of discoveries are, and the test is an application of that novel discovery.
The sequence of the gene wasn't novel. There are probably millions of women who have the gene. And in each women there are billions of copies of the gene. Only novel/non-obvious applications of discoveries are patentable. Using the gene to test would be novel in 1991 (because they hadn't told anyone else about it yet) but it was never non-obvious. Being able to test for it is the whole reason they went looking for it in the first place.

"The subject matter sought to be patented must be sufficiently different from what has been used or described before that it may be said to be nonobvious to a person having ordinary skill in the area of technology related to the invention. For example, the substitution of one color for another, or changes in size, are ordinarily not patentable."

Originally Posted by Uncle Skeleton
The light bulb was always the light bulb, people just didn't know how to build it.
Actually the light bulb didn't exist before someone built one. It's also not suitable for comparison.
     
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Apr 23, 2013, 04:32 PM
 
Originally Posted by Uncle Skeleton View Post
Huh? If you don't have an answer that's fine with me. If you do have an answer I'll wait patiently.

Edit: I couldn't figure out what was supposed to be obtuse, maybe it's that you really are opposed to the concept of patents? I admit it, that was lost on me.
Oh I can explain. The tone seems off.

Originally Posted by Uncle Skeleton View Post
I suppose you're not at all concerned that inventors will either stop inventing in the medical field, or they will decline to reveal how their inventions work. Why don't we take such a heavy-handed position with non-medical patents too? "Sorry Samsung, all your patents are null and void because **** you that's why. It's better for the rest of us if you catch a tough break. Plus we don't really like you." What's wrong with that philosophy for all patents?
I take issue that citing an exception in patent law regarding naturally occurring phenomena and that was seen as convincing enough to go to the SCOTUS is being compared to arbitrarily telling all companies to "**** off".


Originally Posted by Uncle Skeleton View Post
Yeah, and what good does it do us until we know it? Knowledge-based property is the basis of all patents. Same goes for the light bulb or the cotton gin. The light bulb was always the light bulb, people just didn't know how to build it. Electricity and incandescence are properties of nature, and who cares if there is a way to frame the patent as an application of those properties rather than a discovery of them?
I also find it a little surprising that you're trying to equate a part of our genetics with a lightbulb – an artificial means of light.
     
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Apr 23, 2013, 06:27 PM
 
Originally Posted by BLAZE_MkIV View Post
I'm mocking your unintelligible statement.
Flattery will get you nowhere


Wikipedia says discovered in 1991 and patented in 1994.
Not on my internet. Where does it say that?


It was always testable. Coming up with a test doesn't magically make something exist for you to test for it.
I disagree. I think testable requires that there exist a test, and if no one on earth possesses the knowledge required to implement that test then it is not testable (and the only definition I can find agrees; I am interested to see any contradictory definitions you can find). For example, I would say that mind-reading is not testable, solely because as of this post there has not been any mind-reading test invented. Despite the fact that minds exist, ready for the test.

In any event, that is the context in which I posted it. My point was that it is currently feasible, trivial even, to test for blondness, but at the time it was not at all feasible to test for BRCA, and that point is still true. If you want me to replace the term "testable" with "feasible to be tested," I can do that for you.


Because no-ones stupid enough to try to patent a way to cross breed plant and animals.
That does not explain why you can use a different definition of "novel" on the plants/animals themselves, than you can for method patents.


...Using the gene to test would be novel in 1991...
We'll get back to this I suppose.


"The subject matter sought to be patented must be sufficiently different from what has been used or described before that it may be said to be nonobvious to a person having ordinary skill in the area of technology related to the invention. For example, the substitution of one color for another, or changes in size, are ordinarily not patentable."
I read that to mean that inconsequential changes are not patentable. Do you have anything that addresses actual substantive improvements?


Actually the light bulb didn't exist before someone built one. It's also not suitable for comparison.
And the test for BRCA didn't exist before someone developed one. It is suitable for comparison, because it was possible to build a light bulb before there existed the knowledge of how to do it. Similarly, it was possible to test for the sequence of BRCA before there existed the knowledge of what sequences could be used.
     
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Apr 23, 2013, 06:40 PM
 
Originally Posted by The Final Dakar View Post
Oh I can explain. The tone seems off.
I have been thinking it over due to your objection, and I think I can streamline my point: you seem to be saying that we can give consumers a free lunch, in the arena of medicine. Why can we do this, without incurring the standard costs of doing it? And if we have this ability, why not use it in all other arenas, why just medicine?


I take issue that citing an exception in patent law regarding naturally occurring phenomena and that was seen as convincing enough to go to the SCOTUS is being compared to arbitrarily telling all companies to "**** off".
Sorry, I thought "tough break" was an invitation to make things casual, that's all. I withdraw it.


I also find it a little surprising that you're trying to equate a part of our genetics with a lightbulb – an artificial means of light.
You try to find something as different as possible in one respect to illustrate the significance of the similarity in another respect. That's how all analogies work. That a piece of knowledge was "out there" waiting to be known by someone is the way in which they are similar, and the obviousness of whether or not it is a classical "invention" is the way in which they differ. That's what makes it a good analogy.
     
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Apr 24, 2013, 12:36 AM
 
Originally Posted by Uncle Skeleton View Post
I have been thinking it over due to your objection, and I think I can streamline my point: you seem to be saying that we can give consumers a free lunch, in the arena of medicine. Why can we do this, without incurring the standard costs of doing it? And if we have this ability, why not use it in all other arenas, why just medicine?
And your saying just because allot of money was spent on something that it deserves to be patented.
     
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Apr 24, 2013, 07:34 AM
 
Where did I ever mention how much money was spent?
     
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Apr 24, 2013, 07:40 AM
 
Sorry to tell you this, but its always about money.

Where did I ever mention how much money was spent?
Originally Posted by Uncle Skeleton View Post
I suppose you're not at all concerned that inventors will either stop inventing in the medical field
You're not possibly naive enough to think that inventors pay thousands of dollars just to file a patent for altruistic reasons.


Originally Posted by Uncle Skeleton View Post
but at the time it was not at all feasible to test for BRCA, and that point is still true.
It was feasible at the time to test for genes. We had the technology.


Originally Posted by Uncle Skeleton View Post
That does not explain why you can use a different definition of "novel" on the plants/animals themselves, than you can for method patents.
I'm not you're comparing two different parts. Cross breeding plants and animals is't novel. The resulting plant and animal may be. But it must also pass an obvious test.
Analyzing a DNA sample to check for a gene isn't novel either. They had to due that to even identify the BCRA gene in the first place. The identified gene can't be patented because they didn't make it.
I'm saying that taking the next step if Analyzing a DNA sample for a specific gene to test for a specific DNA related disease would be obvious to even a layman never mind a geneticist. Never mind that they undoubtedly received public funding with that express goal.

Originally Posted by Uncle Skeleton View Post
I read that to mean that inconsequential changes are not patentable. Do you have anything that addresses actual substantive improvements?
And there's a reason that it says obvious not easy. There are some patents for applying existing patents to another field that require no changes to the original invention. Ex: Would you have thought to use a missile defense system to make phone calls?
( Last edited by BLAZE_MkIV; Apr 24, 2013 at 07:54 AM. )
     
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Apr 24, 2013, 08:35 AM
 
Originally Posted by BLAZE_MkIV View Post
Sorry to tell you this, but its always about money.

You're not possibly naive enough to think that inventors pay thousands of dollars just to file a patent for altruistic reasons.
Ok that would relate to the money earned after the patent, but it doesn't say anything about the money spent before the patent. Secondly, that logic, if sound, would blow away all patents regardless of merit. "It's always about money" paints with too wide a brush to make your point, unless your point is that patents are always bad.


My point was that it is currently feasible, trivial even, to test for blondness, but at the time it was not at all feasible to test for BRCA, and that point is still true.
It was feasible at the time to test for genes. We had the technology.
Are you actually arguing that this saves your blondness analogy, or are you just trying to find ways to dishonestly snip sentence fragments out of context to be argumentative?




Originally Posted by blazy
Originally Posted by skelly
Originally Posted by blazy
Originally Posted by skelly
Originally Posted by blazy
3) My statement is that using a gene to test for a condition is obvious. Regardless of the gene or the condition.
Then explain why the same reasoning doesn't invalidate all patents on agricultural plant and animal strains. How can they be patent-able if they are obvious?
Because no-ones stupid enough to try to patent a way to cross breed plant and animals.
That does not explain why you can use a different definition of "novel" on the plants/animals themselves, than you can for method patents.
I'm not you're comparing two different parts. Cross breeding plants and animals is't novel.
Oops, I did put the wrong word in there, but I was not arguing two different parts. It has been about "obviousness" the whole time, and "novel" was a typo. I apologize for my typo, and I'll rephrase:

That does not explain why you can use a different definition of "obvious" on the plants/animals themselves, than you can for method patents.


Analyzing a DNA sample to check for a gene isn't novel either. They had to due that to even identify the BCRA gene in the first place.
That, is not right. You make it sound like the search for BRCA was that they had the sequence on file and they were just souring the genome until they found that sequence. Is that what you think they did? You never answered my challenge about your 1991 claim, which would shed light on this. If they did know the sequence, or even the location of BRCA in 1991, then you would be right.


I read that to mean that inconsequential changes are not patentable. Do you have anything that addresses actual substantive improvements?
And there's a reason that it says obvious not easy. There are some patents for applying existing patents to another field that require no changes to the original invention. Ex: Would you have thought to use a missile defense system to make phone calls?
I don't see anything in your post that addresses the question.
     
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Apr 24, 2013, 09:58 AM
 
Originally Posted by Uncle Skeleton View Post
Ok that would relate to the money earned after the patent, but it doesn't say anything about the money spent before the patent. Secondly, that logic, if sound, would blow away all patents regardless of merit. "It's always about money" paints with too wide a brush to make your point, unless your point is that patents are always bad.
Patents are about money not technology / ideas. The patent exclusivity is to reward the inventor with a short term monopoly so that he will risk resources in the hope of inventing something better / useful. The amount of money you spend on R&D should have no impact on the validity of you're patent.

Originally Posted by Uncle Skeleton View Post
Are you actually arguing that this saves your blondness analogy, or are you just trying to find ways to dishonestly snip sentence fragments out of context to be argumentative?
My analogy was that it doesn't matter how expensive or complex or simple the test is. If the testing methodology isn't new then specifying which color you looking for doesn't make your test non-obvious.


Originally Posted by Uncle Skeleton View Post
Oops, I did put the wrong word in there, but I was not arguing two different parts. It has been about "obviousness" the whole time, and "novel" was a typo. I apologize for my typo, and I'll rephrase:

That does not explain why you can use a different definition of "obvious" on the plants/animals themselves, than you can for method patents.
I'm not. They didn't cross breed people to get one that has the BRCA gene and then patent them. They use mice in medical testing. Say a lab breeds a mouse line that fully expresses the mouse equivalent of BRCA. Does the lab get to patent mouse BRCA? No. Its a complete non starter. They may get to patent the mouse though.

Originally Posted by Uncle Skeleton View Post
That, is not right. You make it sound like the search for BRCA was that they had the sequence on file and they were just souring the genome until they found that sequence. Is that what you think they did?
They spent allot of time cross referencing probably thousands of DNA samples to identify a couple dna samples. Then they isolated and sequences them. This is not the first time in history someone has done that with A gene. Sequencing genes was old hat even then in the 90's.

But that's discovering the gene and it's sequence not testing for it. They didn't patent how to discover it.

Originally Posted by Uncle Skeleton View Post
You never answered my challenge about your 1991 claim, which would shed light on this. If they did know the sequence, or even the location of BRCA in 1991, then you would be right.
Myriad Genetics - Wikipedia, the free encyclopedia see timeline.

Originally Posted by Uncle Skeleton View Post
I don't see anything in your post that addresses the question.
As I stated above patents are all about reward better ways to do things. But the people suing tin this case were trying to use a different more expensive but more accurate method to test for the gene.
     
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Apr 24, 2013, 11:16 AM
 
Originally Posted by BLAZE_MkIV View Post
Patents are about money not technology / ideas. The patent exclusivity is to reward the inventor with a short term monopoly so that he will risk resources in the hope of inventing something better / useful. The amount of money you spend on R&D should have no impact on the validity of you're patent.
Then I guess that strawman is defeated. I repeat, I never mentioned how much money was spent, only you did. My position is that they deserve a patent because/if they created a novel test that was useful (and non-obvious). Before that creation, a genetic test for breast cancer was impossible. A woman could not go to a lab and ask to be tested for her personal genetic risk. After they created their test, she could.

Although I am interested in the part about "a short term monopoly," because 20 years used to be "short term" but is increasingly less so, and I think that part should be adjusted for modern times. I've mentioned this earlier in the thread too.


My analogy was that it doesn't matter how expensive or complex or simple the test is. If the testing methodology isn't new then specifying which color you looking for doesn't make your test non-obvious.
The methodology in this case relies on the knowledge of the sequence. You simply can't test for a gene without knowing the sequence, it's impossible. They discovered what the sequence was, and that turned a test from impossible to possible. They patented the test, an application of a natural discovery.

Now I admit, it does seem like they would love nothing better than to go further than that, to actually patent the gene itself, and I believe that is why no one on their side has objected to the universal misnomer "patent the gene," because for some reason I don't understand, they think they can actually win that argument too. As I read somewhere, they already lost that argument in France, where their patents on applications of BRCA are now more limited than here.


I'm not. They didn't cross breed people to get one that has the BRCA gene and then patent them. They use mice in medical testing. Say a lab breeds a mouse line that fully expresses the mouse equivalent of BRCA. Does the lab get to patent mouse BRCA? No. Its a complete non starter. They may get to patent the mouse though.
I asked you about "obviousness," but you didn't mention "obviousness" in your answer. Can you please try a little harder to address the actual question at hand? For example, is it a "non-starter" because of obviousness? Is obviousness the only reason? Is the mouse not also obvious? What makes the mouse different in regards to obviousness?


They spent allot of time cross referencing probably thousands of DNA samples to identify a couple dna samples.
"Cross-referencing" against what?


Then they isolated and sequences them. This is not the first time in history someone has done that with A gene.
Yeah but so what? You can still patent things that were made through the same general process that has been done before, like breeding farm animals for desired traits (even the exact same traits that were done before in other animals, or the same species but a different strain). So obviously the whole "doing it again for a different use" does not invalidate something as patent-eligible. Which makes sense to me, because the point of patents is to allow people to bring new products to market, and that goal is still served by adding "breast cancer" to the list of uses we have access to.


Sequencing genes was old hat even then in the 90's.
And selective breeding is old hat now and has been for thousands of years. That doesn't invalidate any patents on animal strains that uses selective breeding.


But that's discovering the gene and it's sequence not testing for it. They didn't patent how to discover it.
And a patent on a new animal strain does not cover how to select for animal strains, it's possible to patent just the result.


All they had at that time was a name for their goal, that's it. See when you search for BRCA within the scientific literature, only 2 papers mention it before 1994, one that is not about finding it (it's about adding the entire chromosome 17 to cultured cells to see what happens), and this one from Berkeley in 1992 which is about finding it. You can see from this abstract that they still don't know the location or the sequence, they have it narrowed down to a region that's 140,000% larger than the size of the actual gene (we now know). That's like in the 15th century sailors were searching for the "Northwest Passage," they had a name for it, they could deduce that it must not be in the south of the continent and it must be near where Canada is (now), if it exists at all. At that point it is fundamentally not useful. Finding the actual location is what makes it useful. You could not say that sailors had discovered the Northwest Passage just because they deduced that it must be up around Canada. You could not say that astronomers had discovered Pluto just because they deduced that there was probably a 9th body in the solar system screwing up the other orbits. You could not say that physicists had discovered the God Particle just because they narrowed it down to 1 of 1400 possibilities. And you could not say we found Osama Bin Laden just because we narrowed him down to the hills of Afghanistan. To say BRCA was discovered in 1991 is simply not true. They were searching for something like it, and when they found one they called it by the same name they had been searching for. The importance of a discovery is that it makes the discovered item actionable or usable, and this is directly relevant to the purpose of patents. In 1991 BRCA was not usable. The patented work is what made it usable.


As I stated above patents are all about reward better ways to do things. But the people suing tin this case were trying to use a different more expensive but more accurate method to test for the gene.
That still doesn't answer the question. Since this subthread derived from a quote you gave about whether changing the color can be a patent, I feel ok dumping a similar quote here:
"A patent, being an exclusionary right, does not necessarily give the patent owner the right to exploit the patent. For example, many inventions are improvements of prior inventions that may still be covered by someone else's patent.[17] If an inventor obtains a patent on improvements to an existing invention which is still under patent, they can only legally use the improved invention if the patent holder of the original invention gives permission, which they may refuse" ("Patent")
Therefore, your description here is not inconsistent with the Myriad test being patent-eligible. The people suing in this case are using a method that is an improvement to an existing invention. In 2014 Myriad's patent will expire and they can freely use their improved invention. Again, I would support making that term shorter for all patents. It was shorter until 1995.
( Last edited by Uncle Skeleton; Apr 24, 2013 at 11:52 AM. )
     
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Apr 24, 2013, 12:50 PM
 
Originally Posted by Uncle Skeleton View Post
Then I guess that strawman is defeated. I repeat, I never mentioned how much money was spent, only you did. My position is that they deserve a patent because/if they created a novel test that was useful (and non-obvious). Before that creation, a genetic test for breast cancer was impossible. A woman could not go to a lab and ask to be tested for her personal genetic risk. After they created their test, she could.
1) You stated "I suppose you're not at all concerned that inventors will either stop inventing in the medical field" how is this not about money?

2) They didn't create a test. They didn't create a gene. They used an existing test to test for an existing gene.

Originally Posted by Uncle Skeleton View Post
The methodology in this case relies on the knowledge of the sequence.
Incorrect, the methodology is the same regardless of the sequence your looking for. That's my whole issue. Any patent they have has to hold up without "BRCA" in it because they didn't create BRCA.


Originally Posted by Uncle Skeleton View Post
I asked you about "obviousness," but you didn't mention "obviousness" in your answer. Can you please try a little harder to address the actual question at hand? For example, is it a "non-starter" because of obviousness? Is obviousness the only reason? Is the mouse not also obvious? What makes the mouse different in regards to obviousness?
If you'll clearly state an complete question about how obviousness would or would not apply i'll answer it. I'm tried of running in "you didn't answer my question" circles.

Products of nature are not patentable because you didn't create them, not because of novelty or obviousness. You have to pass all three criteria not just 1.


Originally Posted by Uncle Skeleton View Post
"Cross-referencing" against what?
All the samples. You get samples that you think have the gene and samples you think don't have it. You need allot because you can't be certain of either and the genes aren't in exactly the same spot. That's why the love it when one twin has a disease and the other doesn't.

Originally Posted by Uncle Skeleton View Post
Yeah but so what? You can still patent things that were made through the same general process that has been done before
They didn't patent something they made. The patented an application of an existing process.

The importance of a discovery is that it makes the discovered item actionable or usable
True
this is directly relevant to the purpose of patents.
False, patents about creating things not finding things. The reward for finding import things are tenure, grant money, Nobel prices and your name in the history books.

That still doesn't answer the question.
Since this subthread derived from a quote you gave about whether changing the color can be a patent, I feel ok dumping a similar quote here:
"A patent, being an exclusionary right, does not necessarily give the patent owner the right to exploit the patent. For example, many inventions are improvements of prior inventions that may still be covered by someone else's patent.[17] If an inventor obtains a patent on improvements to an existing invention which is still under patent, they can only legally use the improved invention if the patent holder of the original invention gives permission, which they may refuse" ("Patent")
Therefore, your description here is not inconsistent with the Myriad test being patent-eligible. The people suing in this case are using a method that is an improvement to an existing invention. In 2014 Myriad's patent will expire and they can freely use their improved invention. Again, I would support making that term shorter for all patents. It was shorter until 1995.
Only applicable if the test methodology doesn't predate Myriad.
     
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Apr 24, 2013, 03:14 PM
 
Originally Posted by Uncle Skeleton View Post
I have been thinking it over due to your objection, and I think I can streamline my point: you seem to be saying that we can give consumers a free lunch, in the arena of medicine.
No, I'm not. Why do you continue to ignore my logic is based on the wording and perceived intent of the law? If you see a net benefit for consumers on this subject, then it's from a shortcoming in design of the law.


Originally Posted by Uncle Skeleton View Post
You try to find something as different as possible in one respect to illustrate the significance of the similarity in another respect. That's how all analogies work. That a piece of knowledge was "out there" waiting to be known by someone is the way in which they are similar, and the obviousness of whether or not it is a classical "invention" is the way in which they differ. That's what makes it a good analogy.
You're trying claim a light bulb is just electricity and light, both naturally occurring phenomena. A light bulb, however, is a unique amalgam of materials that gives that end result. You can't patent the idea of artificial light, only the method by which you create it. (i.e., you can't patent the gene, only the way by which you test for it)
     
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Apr 24, 2013, 03:31 PM
 
Originally Posted by BLAZE_MkIV View Post
1) You stated "I suppose you're not at all concerned that inventors will either stop inventing in the medical field" how is this not about money?
I find it hard to believe that you don't grok the difference between "money spent" and just plain "money." Here let me try to help you out.

This is what you and I are both saying:

invention -> temporary monopoly -> money received

And here is the straw man you have been accusing me of saying:

money spent -> temporary monopoly -> money received

Does that help? If you take away the monopoly and money (received!!!) from the first model up there, then you can anticipate a reduction in the amount of invention people will be doing. The money spent is only involved in the second (straw man) model, and doesn't invalidate the prediction from the first model about reducing inventiveness.


2) They didn't create a test. They didn't create a gene. They used an existing test to test for an existing gene.
...
Any patent they have has to hold up without "BRCA" in it because they didn't create BRCA.
...
Products of nature are not patentable because you didn't create them, not because of novelty or obviousness.
Applications of products of nature are patentable. I don't see how you could ever patent an application of a product of nature without ever mentioning that product of nature. I challenge you to provide a real or theoretical counter-example: any valid patent on a use or method from a product of nature that meets your rigorous criteria.


Incorrect, the methodology is the same regardless of the sequence your looking for. That's my whole issue.
Bingo. Your whole issue is that you refuse to question your expectations. Your expectations are:
"invention" = gene
methodology = sequencer
patent type = natural phenomenon
This is a perfectly valid expectation, based on the universal misnomer of "patent the gene" used by both sides, as I explained in an earlier post. But if you consider that the patent covers the cancer test, even though Myriad has been known to make claims beyond that, then it changes to this:
"invention" = cancer test
methodology = newly discovered gene
patent type = method
Anything they claim ownership of, above and beyond the test, I agree should be struck down. But I don't see how the test falls outside the description of a useful method based on a natural phenomenon.



If you'll clearly state an complete question about how obviousness would or would not apply i'll answer it. I'm tried of running in "you didn't answer my question" circles.
Oh trust me, I'm even more weary of your evasions than you are weary of being called on them. My question, again, is how can you use a definition of "obvious" WRT methods and applications of natural phenomena, when that exact same definition of "obvious" would invalidate patents of e.g. agricultural plant and animal strains that are clearly patent-eligible?



False, patents about creating things not finding things. The reward for finding import things are tenure, grant money, Nobel prices and your name in the history books.
They found something (a gene) which was not patentable, and they made something (a test) using what they found and that should be patentable. Their claims to the gene should be denied, but their claims to the test are valid. If someone discovered electricity, they shouldn't be able to patent electricity, but I would not be surprised if their discovery of electricity gave them the head-start they needed in order to win the patent on the light bulb, which makes use of the electricity. I am willing to stand behind their claims to the patent on the light bulb even if they are also greedy enough to try to claim a patent on electricity at the same time.




Only applicable if the test methodology doesn't predate Myriad.
If the discovery is crucial to the test methodology, then it in fact doesn't predate Myriad. And by the way, the timeline on wikipedia that you cited also disproves your claim that Myriad sprang into existence in 1994. Did you notice that?
     
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Apr 24, 2013, 03:52 PM
 
Originally Posted by The Final Dakar View Post
No, I'm not. Why do you continue to ignore my logic is based on the wording and perceived intent of the law? If you see a net benefit for consumers on this subject, then it's from a shortcoming in design of the law.
I was referring to your statement that the tie should go against the patent holder. What law says that? I had assumed that your reasoning for saying that was kind of a populist award for consumers, since you mentioned it was especially salient in the medical field, where consumers are extra sympathetic.

Edit: and by the way I also want to point out that to me it seems like you are the one constantly choosing to ignore that my logic is based on the wording and intent of the law. After all, Myriad's patent has been the law of the land for nearly 2 decades. I will try to take your advice, but you please try to do the same.


You're trying claim a light bulb is just electricity and light, both naturally occurring phenomena. A light bulb, however, is a unique amalgam of materials that gives that end result.
No, I'm not talking about the electricity and light, I'm talking about the design of the device. That design is just information, and was able to be known at any time, but the fact is it wasn't. Just like you said that the knowledge of what a gene does (and what it "does" is a human mental construction) was able to be known all along, but it just so happens that it wasn't. I don't find that a convincing point, because it could be applied to anything, even artificial and non-controversial inventions like the light bulb.
     
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Apr 24, 2013, 04:07 PM
 
Originally Posted by Uncle Skeleton View Post
I was referring to your statement that the tie should go against the patent holder. What law says that? I had assumed that your reasoning for saying that was kind of a populist award for consumers, since you mentioned it was especially salient in the medical field, where consumers are extra sympathetic.

Edit: and by the way I also want to point out that to me it seems like you are the one constantly choosing to ignore that my logic is based on the wording and intent of the law. After all, Myriad's patent has been the law of the land for nearly 2 decades. I will try to take your advice, but you please try to do the same.
My interpretation of the intent of the law was to not allow companies to patent basic naturally occurring phenomena as that would be restrictive and troublesome for the market. In the event of a tie, I'm basically siding for intellectual Freedom™.



Originally Posted by Uncle Skeleton View Post
No, I'm not talking about the electricity and light, I'm talking about the design of the device. That design is just information, and was able to be known at any time, but the fact is it wasn't. Just like you said that the knowledge of what a gene does (and what it "does" is a human mental construction) was able to be known all along, but it just so happens that it wasn't. I don't find that a convincing point, because it could be applied to anything, even artificial and non-controversial inventions like the light bulb.
I think you're devaluing the the concept of an invention in order to make it more similar to the key example in the case. If you don't see a difference between creating a never-seen-before combination of materials to serve a function, and discovering a correlation between two naturally occurring phenomena, then I'm forced to the conclusion that I do not have the means by which to help you.
     
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Apr 24, 2013, 06:27 PM
 
Originally Posted by The Final Dakar View Post
My interpretation of the intent of the law was to not allow companies to...
It's this kind of comment that tends to give the impression you have a populist agenda. Since you balked at that, I'd like to figure out what the real reason is. What made you say "companies?" Why wouldn't the same be true of "people" who develop inventions and apply for patents?



... [not] patent basic naturally occurring phenomena as that would be restrictive and troublesome for the market. In the event of a tie, I'm basically siding for intellectual Freedom™.
I am sympathetic to that. So then that leaves the "why medicine" part of my question. Why did you single out medicine?

Also it's time for my next question, how can a method or application of natural phenomena ever pass your test? Or is making use of a (naturally occurring) gene or other natural process like a "poison pill" that invalidates all methods that use it from patentability?



I think you're devaluing the the concept of an invention in order to make it more similar to the key example in the case.
Don't make the mistake of thinking that "value" is a good way to evaluate this issue. A cancer test definitely has more "value" than a gerbil shirt or Flowbee. For that matter even things that everyone agrees are not patentable, like the gene's actual discovery, have more "value" than many patentable designs.



If you don't see a difference between creating a never-seen-before combination of materials to serve a function, and discovering a correlation between two naturally occurring phenomena, then I'm forced to the conclusion that I do not have the means by which to help you.
Meanwhile, you apparently can't tell the difference between a discovery, and a method or application making use of that discovery? It's pretty ridiculous that you would accuse anyone of ignoring the logic and basis of your argument, and in the very next post do the exact same thing to them.
( Last edited by Uncle Skeleton; Apr 24, 2013 at 06:39 PM. )
     
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Apr 25, 2013, 11:57 AM
 
I'm done. This is has gone from an argument on the legal merits of the case to an analysis of my 'agenda', semantics, and insults.
     
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Aug 7, 2013, 12:21 PM
 
Whoops, must not have been around when "the Supreme Court ruled 9-0 that Myriad can't claim patent rights to those genes".

Not that it dissuaded them: Ambry hits back at Myriad’s “bad faith enforcement” of breast cancer gene patents | Ars Technica

Just weeks after it lost at the high court, Myriad filed new lawsuits against the first two competitors who began offering BRCA gene testing, Ambry Genetics and Gene by Gene. Despite its Supreme Court loss, Myriad believes its competitors are violating at least 10 other patents the company holds related to testing BRCA genes.
The company used publicly funded research to get patents that never should have been granted, then used those patents to "intimidate and chill competition" in the genetic testing markets and deprive patients of access to their own data, according to the counterclaims.

Ambry has committed to depositing the information it gets from testing into public databases, which it says will enable further competition in the testing market. Myriad, by contrast, "is using its invalid patents to maintain as secret patients' gene sequences (which do not belong to Myriad) in an attempt to limit competition."
esearchers already knew that a propensity to get breast cancer could be inherited. By 1990 the hunt was on for a gene that could be linked to the disease. Several international research teams were searching; in the US, the two main groups were Dr. Mary Claire King's laboratory at UC Berkeley and Dr. Mark Skolnick's group at the University of Utah.
Once researchers located the gene on chromosome 17, "standard and well-known techniques could be used to sequence the gene."

At that point, Skolnick and the University of Utah had a big advantage. The brief continues:

His lab had developed a database of an extensive pedigree of Morman families that contained information on 200,000 families and most of the 1.6 million descendants of the initial 10,000 Utah settlers. Skolnick linked that database to the Utah cancer registry, which resulted in 40,000 cross-linked entries that spurred much of his future research. Although the University of Utah always had control of the database, Dr. Skolnick was in a unique position to utilize it.

Access to this database gave Dr. Skolnick (and later Myriad) an advantage because it provided the raw natural data Myriad’s team could use to more quickly determine the likely physical location of BRCA1 based on the general chromosome location Dr. King and other groups published.

In 1991, Dr. Skolnick formed Myriad as a spin-off from the University of Utah Center for Genetic Epidemiology with the aim of obtaining additional funding necessary to locate the precise location of the BRCA1 gene.
The whole time, Skolnick collaborated with others: "more than forty researchers from public and private entities," including University of Utah, McGill University in Montreal, the National Institute of Environmental Health Sciences, Eli Lilly, and Myriad. Skolnick and others published their sequence of BRCA1 in Science on October 7, 1994.
Skolnick also worked with others while pursuing the BRCA2 gene, Ambry notes. For a time, he worked with UK cancer geneticist Michael Stratton; but "Dr. Stratton ended the collaboration after learning that Myriad planned to patent the genes."

Stratton's group, working without Skolnick, announced they had mapped and sequenced BRCA2 in December 1995, and told the journal Nature about their discovery. "The day before the Stratton group's sequence was published in Nature, Myriad announced that it had sequenced BRCA2," writes Ambry.
Interesting story. Guy sounds opportunistic.
     
 
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