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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 p

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?

nolok 7y ago
> 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. "But then why would those companies finance the research to identify and understand genes ???" Yes, the answer to that takes about 10 seconds (less if you're aware of the concept of gene therapy), but that's mostly all they have to go from.
pseudolus 7y ago
There doesn't appear to be an intellectual underpinning in support of the bill. What does exist are the usual platitudes about promoting "innovation". I'm surprised that the "threat from China" hasn't been invoked yet by the various bill promoters though I expect that in the days and months to come it will be.
- colpabar 7y ago
  > The bill’s sponsors in the Senate, Thom Tillis (R–NC) and Chris Coons (D–DE), have described it as a way to restore incentives for U.S. innovation by making the process for protecting new inventions more predictable. (Competition with China, where no comparable restrictions exist in the patent system, may have motivated the lawmakers, Rai says.) It already has.
hammock 7y ago
>what's the argument for the bill? The argument for is that another monopolistic Monsanto is potentially created with sufficient coffers to keep politicians who support this bill in a lot of money for a long time.
kevinventullo 7y ago
I wonder if one could make the argument that genes are more akin to a "Library of Babel" (https://en.m.wikipedia.org/wiki/The_Library_of_Babel https://en.m.wikipedia.org/wiki/The_Library_of_Babel). That is, the space of genes is so complicated and vast that the line between discovery and invention gets blurred.
josaka 7y ago
I think this bill is more about how we decide what can be patented, i.e, do we even look at whether the subject matter is new, useful, and non-obvious, or do we just say it's in a category that we won't allow people to patent their creation, like short stories, business innovations, and screenplays. As I read the bill, under the Darwin tortoise hypo, he still wouldn't be able to patent b/c the tortoise wouldn't be novel, as it existed in the form presented in nature before. But if Darwin genetically engineered a tortoise that can fly, he possibly could patent the innovation.
travisp 7y ago
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 7y ago
  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 7y ago
    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.
- astazangasta 7y ago
  You are wrong. They are literally gene patents. For years Myriad had a patent on BRCA1. They enforced it against anyone else who wanted to test for mutations in the gene. Over a fifth of the human genome had similar patents. There is no "composition" argument to be made, it is just a natural entity. Aspirin is a drug you make. This is like patenting the idea of apples. It is pure greed. https://en.m.wikipedia.org/wiki/Enclosure https://en.m.wikipedia.org/wiki/Enclosure
  - travisp 7y ago
    Can you provide sources that suggest I'm wrong? Obviously there are difference of opinion on this (the supreme court decided these were not composition of matter patents), but I think it would be helpful for people reading to at least understand both sides. These two articles discuss some of the thoughts about why the BRCA patents were considered valid by a number of legal experts: https://www.nytimes.com/roomfordebate/2013/06/06/can-the-human-blueprint-have-owners/a-century-old-form-of-patent https://www.nytimes.com/roomfordebate/2013/06/06/can-the-hum... > 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. > Thus, Myriad’s patents cover the same “composition of matter” that these patents have always covered, and which built the modern pharmaceutical industry in the early 20th century. https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3979127/ https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3979127/ It's at least not as simple as saying that these patents are just patenting the genetic sequence and anyone who even looks at them is violating patent law and that somehow others own the genes in our body. You said: > They enforced it against anyone else who wanted to test for mutations in the gene. Anyone could be tested for mutations in the gene (in fact, 23andMe tested for those specific SNPs and you could see it in your raw data). What Myriad patented and enforced was using this in a specific medical context, as I understand it specifically a medical diagnostic test. Here is the BRCA1 patent: https://www.google.com/patents/US5747282 https://www.google.com/patents/US5747282 This is the abstract: > The present invention relates generally to the field of human genetics. Specifically, the present invention relates to methods and materials used to isolate and detect a human breast and ovarian cancer predisposing gene (BRCA1), some mutant alleles of which cause susceptibility to cancer, in particular breast and ovarian cancer. More specifically, the invention relates to germline mutations in the BRCA1 gene and their use in the diagnosis of predisposition to breast and ovarian cancer. The present invention further relates to somatic mutations in the BRCA1 gene in human breast and ovarian cancer and their use in the diagnosis and prognosis of human breast and ovarian cancer. Additionally, the invention relates to somatic mutations in the BRCA1 gene in other human cancers and their use in the diagnosis and prognosis of human cancers. The invention also relates to the therapy of human cancers which have a mutation in the BRCA1 gene, including gene therapy, protein replacement therapy and protein mimetics. The invention further relates to the screening of drugs for cancer therapy. Finally, the invention relates to the screening of the BRCA1 gene for mutations, which are useful for diagnosing the predisposition to breast and ovarian cancer. Here is the insulin patent: https://patents.google.com/patent/US1469994 https://patents.google.com/patent/US1469994 And here is the adrenaline patent: https://patents.google.com/patent/US730176 https://patents.google.com/patent/US730176 These are both things naturally occurring in the body.
mcv 7y ago
The argument for the bill is that corporations want to be able to monopolise human genes they discovered so only they are allowed to sell treatments and other products and services related to those genes. Profit. Pharma and biotech corporations fund political campaigns, and in exchange they want laws that allow them to extract more profit. That's pretty much how the political process works.
- emiliobumachar 7y ago
  The less cynical take would be: The argument for the bill is that corporations will discover more genes faster if they are able to monopolize human genes they discovered, and patent expiration will place them in the public domain decades later, possibly faster than if we waited for someone to do the research without the expectation of monopoly. The question is, will it be really faster in the average case? The dumpster fire in software patents is that they often cover what anyone would, and often did, discover independently relatively quickly when first facing the problem. As Joel Spolsky has put it: >The number of actually novel, non-obvious inventions in the software industry that maybe, in some universe, deserve a government-granted monopoly is, perhaps, two. >The other 40,000-odd software patents issued every year are mostly garbage that any working programmer could “invent” three times before breakfast. Most issued software patents aren’t “inventions” as most people understand that word. They’re just things that any first-year student learning Java should be able to do as a homework assignment in two hours. I have no idea what would be the case in genetic biotech.
IfOnlyYouKnew 7y ago
My attempt: A “gene patent” isn’t about protecting a specific sequence of DNA, but about using that knowledge, and how the gene products act and interact, for a specific purpose. Example: the knowledge that certain genes are linked to cancer used to make a predictive test. The rest, then, is the standard argument for patents and copyright: it takes money and time to investigate this and create a product that is useful. That investment makes no sense if the product can easily be reverse engineered on day one. Even if you could protect the knowledge through some sort of obfuscation, the public is better served by granting you a patent, because the latter is time-limited and the forced publication of your knowledge helps to build on and critically assess the product you are selling. I generally don’t quite get the distinction b/w “invention” and “discovery”. I guess the idea is there is a limited amount of knowledge to “discover”, but inventions are theoretically unlimited? I’d love to hear from someone who is pro-patent for one category but not the other, preferably with real examples and not “what if you patent gravity?”
rayiner 7y ago
The bill isn’t aimed at gene patents specifically. It’s a decision to section 101, which implicates a wide variety of judicially creates exceptions to patent eligibility, such as abstract ideas and laws of nature. The Supreme Court has created those exceptions, but refused to define them. That has resulted in unpredictability, as patents are found valid or not based on often philosophical discussions on what constitutes an “abstract idea.” The bill replaces that with a “product of human intervention” test: https://www.jdsupra.com/legalnews/legislators-propose-patent-eligibility-95673 https://www.jdsupra.com/legalnews/legislators-propose-patent.... The end goal is similar, but in theory it’s easier to define what inventions are the product of human intervention, versus ones that are naturally occurring. More discussion here: https://www.jdsupra.com/legalnews/legislators-propose-patent-eligibility-95673/ https://www.jdsupra.com/legalnews/legislators-propose-patent...
snowwrestler 7y ago
Without spending too much time on this: Incentive - I'm not sure why you dismiss this, as it is an important part of the justification for intellectual property laws in general. Lincoln said "The patent system added the fuel of interest to the fire of genius," a quote that is carved into the stone of the Dept. of Commerce building in DC. Constitution - Article 1 Section 8 says "To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." Identifying a gene and its function would seem to qualify as a discovery. Social - A key feature of patents that is often overlooked is that they are public records. The idea of a patent is not just to secure a temporary monopoly, but to use that temporary monopoly as compensation for public disclosure of a trade secret. The patent expires and then the idea is public knowledge and free to use. This is in contrast to ideas and information that might be kept secret and never divulged to the public. Philosophical - Is math discovered or invented? There is not universal agreement on this. Likewise, what about something like a vaccine, which is simply a special preparation of naturally occurring materials that trigger your naturally occurring immune system? Which part was invented, and which part discovered? Ultimately it's arguable that humans are naturally occurring phenomena, and all of our works are simply re-arrangements of materials and energies that are themselves naturally occurring. If the distinction between discovering and inventing is up for debate, it follows that related laws are too. I don't actually believe that genes should be patentable, but I do believe in being able to articulate opposing arguments for consideration.

nolok 7y ago

> 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. "But then why would those companies finance the research to identify and understand genes ???" Yes, the answer to that takes about 10 seconds (less if you're aware of the concept of gene therapy), but that's mostly all they have to go from.

pseudolus 7y ago

There doesn't appear to be an intellectual underpinning in support of the bill. What does exist are the usual platitudes about promoting "innovation". I'm surprised that the "threat from China" hasn't been invoked yet by the various bill promoters though I expect that in the days and months to come it will be.

colpabar 7y ago
> The bill’s sponsors in the Senate, Thom Tillis (R–NC) and Chris Coons (D–DE), have described it as a way to restore incentives for U.S. innovation by making the process for protecting new inventions more predictable. (Competition with China, where no comparable restrictions exist in the patent system, may have motivated the lawmakers, Rai says.) It already has.

hammock 7y ago

>what's the argument for the bill? The argument for is that another monopolistic Monsanto is potentially created with sufficient coffers to keep politicians who support this bill in a lot of money for a long time.

kevinventullo 7y ago

I wonder if one could make the argument that genes are more akin to a "Library of Babel" (https://en.m.wikipedia.org/wiki/The_Library_of_Babel https://en.m.wikipedia.org/wiki/The_Library_of_Babel). That is, the space of genes is so complicated and vast that the line between discovery and invention gets blurred.

josaka 7y ago

I think this bill is more about how we decide what can be patented, i.e, do we even look at whether the subject matter is new, useful, and non-obvious, or do we just say it's in a category that we won't allow people to patent their creation, like short stories, business innovations, and screenplays. As I read the bill, under the Darwin tortoise hypo, he still wouldn't be able to patent b/c the tortoise wouldn't be novel, as it existed in the form presented in nature before. But if Darwin genetically engineered a tortoise that can fly, he possibly could patent the innovation.

travisp 7y ago

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 7y ago
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 7y ago
  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.
astazangasta 7y ago
You are wrong. They are literally gene patents. For years Myriad had a patent on BRCA1. They enforced it against anyone else who wanted to test for mutations in the gene. Over a fifth of the human genome had similar patents. There is no "composition" argument to be made, it is just a natural entity. Aspirin is a drug you make. This is like patenting the idea of apples. It is pure greed. https://en.m.wikipedia.org/wiki/Enclosure https://en.m.wikipedia.org/wiki/Enclosure
- travisp 7y ago
  Can you provide sources that suggest I'm wrong? Obviously there are difference of opinion on this (the supreme court decided these were not composition of matter patents), but I think it would be helpful for people reading to at least understand both sides. These two articles discuss some of the thoughts about why the BRCA patents were considered valid by a number of legal experts: https://www.nytimes.com/roomfordebate/2013/06/06/can-the-human-blueprint-have-owners/a-century-old-form-of-patent https://www.nytimes.com/roomfordebate/2013/06/06/can-the-hum... > 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. > Thus, Myriad’s patents cover the same “composition of matter” that these patents have always covered, and which built the modern pharmaceutical industry in the early 20th century. https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3979127/ https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3979127/ It's at least not as simple as saying that these patents are just patenting the genetic sequence and anyone who even looks at them is violating patent law and that somehow others own the genes in our body. You said: > They enforced it against anyone else who wanted to test for mutations in the gene. Anyone could be tested for mutations in the gene (in fact, 23andMe tested for those specific SNPs and you could see it in your raw data). What Myriad patented and enforced was using this in a specific medical context, as I understand it specifically a medical diagnostic test. Here is the BRCA1 patent: https://www.google.com/patents/US5747282 https://www.google.com/patents/US5747282 This is the abstract: > The present invention relates generally to the field of human genetics. Specifically, the present invention relates to methods and materials used to isolate and detect a human breast and ovarian cancer predisposing gene (BRCA1), some mutant alleles of which cause susceptibility to cancer, in particular breast and ovarian cancer. More specifically, the invention relates to germline mutations in the BRCA1 gene and their use in the diagnosis of predisposition to breast and ovarian cancer. The present invention further relates to somatic mutations in the BRCA1 gene in human breast and ovarian cancer and their use in the diagnosis and prognosis of human breast and ovarian cancer. Additionally, the invention relates to somatic mutations in the BRCA1 gene in other human cancers and their use in the diagnosis and prognosis of human cancers. The invention also relates to the therapy of human cancers which have a mutation in the BRCA1 gene, including gene therapy, protein replacement therapy and protein mimetics. The invention further relates to the screening of drugs for cancer therapy. Finally, the invention relates to the screening of the BRCA1 gene for mutations, which are useful for diagnosing the predisposition to breast and ovarian cancer. Here is the insulin patent: https://patents.google.com/patent/US1469994 https://patents.google.com/patent/US1469994 And here is the adrenaline patent: https://patents.google.com/patent/US730176 https://patents.google.com/patent/US730176 These are both things naturally occurring in the body.

mcv 7y ago

The argument for the bill is that corporations want to be able to monopolise human genes they discovered so only they are allowed to sell treatments and other products and services related to those genes. Profit. Pharma and biotech corporations fund political campaigns, and in exchange they want laws that allow them to extract more profit. That's pretty much how the political process works.

emiliobumachar 7y ago
The less cynical take would be: The argument for the bill is that corporations will discover more genes faster if they are able to monopolize human genes they discovered, and patent expiration will place them in the public domain decades later, possibly faster than if we waited for someone to do the research without the expectation of monopoly. The question is, will it be really faster in the average case? The dumpster fire in software patents is that they often cover what anyone would, and often did, discover independently relatively quickly when first facing the problem. As Joel Spolsky has put it: >The number of actually novel, non-obvious inventions in the software industry that maybe, in some universe, deserve a government-granted monopoly is, perhaps, two. >The other 40,000-odd software patents issued every year are mostly garbage that any working programmer could “invent” three times before breakfast. Most issued software patents aren’t “inventions” as most people understand that word. They’re just things that any first-year student learning Java should be able to do as a homework assignment in two hours. I have no idea what would be the case in genetic biotech.

IfOnlyYouKnew 7y ago

My attempt: A “gene patent” isn’t about protecting a specific sequence of DNA, but about using that knowledge, and how the gene products act and interact, for a specific purpose. Example: the knowledge that certain genes are linked to cancer used to make a predictive test. The rest, then, is the standard argument for patents and copyright: it takes money and time to investigate this and create a product that is useful. That investment makes no sense if the product can easily be reverse engineered on day one. Even if you could protect the knowledge through some sort of obfuscation, the public is better served by granting you a patent, because the latter is time-limited and the forced publication of your knowledge helps to build on and critically assess the product you are selling. I generally don’t quite get the distinction b/w “invention” and “discovery”. I guess the idea is there is a limited amount of knowledge to “discover”, but inventions are theoretically unlimited? I’d love to hear from someone who is pro-patent for one category but not the other, preferably with real examples and not “what if you patent gravity?”

rayiner 7y ago

The bill isn’t aimed at gene patents specifically. It’s a decision to section 101, which implicates a wide variety of judicially creates exceptions to patent eligibility, such as abstract ideas and laws of nature. The Supreme Court has created those exceptions, but refused to define them. That has resulted in unpredictability, as patents are found valid or not based on often philosophical discussions on what constitutes an “abstract idea.” The bill replaces that with a “product of human intervention” test: https://www.jdsupra.com/legalnews/legislators-propose-patent-eligibility-95673 https://www.jdsupra.com/legalnews/legislators-propose-patent.... The end goal is similar, but in theory it’s easier to define what inventions are the product of human intervention, versus ones that are naturally occurring. More discussion here: https://www.jdsupra.com/legalnews/legislators-propose-patent-eligibility-95673/ https://www.jdsupra.com/legalnews/legislators-propose-patent...

snowwrestler 7y ago

Without spending too much time on this: Incentive - I'm not sure why you dismiss this, as it is an important part of the justification for intellectual property laws in general. Lincoln said "The patent system added the fuel of interest to the fire of genius," a quote that is carved into the stone of the Dept. of Commerce building in DC. Constitution - Article 1 Section 8 says "To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." Identifying a gene and its function would seem to qualify as a discovery. Social - A key feature of patents that is often overlooked is that they are public records. The idea of a patent is not just to secure a temporary monopoly, but to use that temporary monopoly as compensation for public disclosure of a trade secret. The patent expires and then the idea is public knowledge and free to use. This is in contrast to ideas and information that might be kept secret and never divulged to the public. Philosophical - Is math discovered or invented? There is not universal agreement on this. Likewise, what about something like a vaccine, which is simply a special preparation of naturally occurring materials that trigger your naturally occurring immune system? Which part was invented, and which part discovered? Ultimately it's arguable that humans are naturally occurring phenomena, and all of our works are simply re-arrangements of materials and energies that are themselves naturally occurring. If the distinction between discovering and inventing is up for debate, it follows that related laws are too. I don't actually believe that genes should be patentable, but I do believe in being able to articulate opposing arguments for consideration.