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At the end is what I consider the real argument: "You didn't do anything to create it, just discovered something that already existed." Patents are for inventi

by lutorm 18y ago

At the end is what I consider the real argument: "You didn't do anything to create it, just discovered something that already existed." Patents are for inventions. Patenting genes is like patenting Pythagoras' Theorem, and then arguing that everyone who uses that theorem must be licensed. Or like if whoever determined that oxygen has 6 protons then patented it and argued that everyone else must pay a license fee to breathe. If you take the argument to its logical conclusion, you should realize that it's absurd.

CWuestefeld 18y ago
I don't think your argument works. I mean, we've all seen the experiment where you stick metal strips into a lemon and it becomes a battery. Just because lemons exist doesn't mean we shouldn't be able to patent batteries that work the same way. I think that the weakness in the gene patents is that a patent is necessarily an invention to accomplish a particular purpose but the pharma companies are filing patents as quickly as the genes can be identified, without the slightest idea of that it does, let alone what it can be used for. My understanding is that the fig leaf that they hide behind is to simply say "it's for fighting cancer", but they have no idea if that's what it would eventually be used for. And the patent office makes no judgment about how effective a patent actually is for its stated purpose. So here's my idea. It needs to get some specificity, but basically we should say that a patent must include a specific statement of what the invention's use is. And the patent would only protect that stated usage; creating another thing that's composed of exactly the same pieces as the patent mentions, but used for a different purpose, would be OK.
- lutorm 18y ago
  Your argument doesn't work either, because in that case you could patent the invention of a battery consisting of metal strips and lemons. Lemons would still be free to eat for everyone. If they use the gene in a process, then that process is an invention and I have no problem with them patenting that invention. But just patenting the gene IS like patenting lemons.
  - CWuestefeld 18y ago
    Maybe my analogy was poor, because I think that your final paragraph meshes well with the idea I mention in my last paragraph -- I don't think we're actually disagreeing. That is, the use of BRCA1 for a particular cancer treatment could be patented. But BRCA1 itself is (under my proposal) still fair game, both on its own as well as in other treatments that differ sufficiently from the patented one. As you say, lemons should always be fair game. I can patent its combination with metal strips as a battery; that still leaves you free to patent an alternate use, e.g., as a cleaning agent. What I was trying (poorly, it would seem) to get at was that the fact that we can observe an example of a mechanism or process in nature should not make something unpatentable. Seeing a stick balanced across a stone might give a caveman the idea for inventing the lever; the fact that nature prompted that invention doesn't invalidate it, I don't thing (although there might be questions about obviousness).

by lutorm 18y ago

CWuestefeld 18y ago

I don't think your argument works. I mean, we've all seen the experiment where you stick metal strips into a lemon and it becomes a battery. Just because lemons exist doesn't mean we shouldn't be able to patent batteries that work the same way. I think that the weakness in the gene patents is that a patent is necessarily an invention to accomplish a particular purpose but the pharma companies are filing patents as quickly as the genes can be identified, without the slightest idea of that it does, let alone what it can be used for. My understanding is that the fig leaf that they hide behind is to simply say "it's for fighting cancer", but they have no idea if that's what it would eventually be used for. And the patent office makes no judgment about how effective a patent actually is for its stated purpose. So here's my idea. It needs to get some specificity, but basically we should say that a patent must include a specific statement of what the invention's use is. And the patent would only protect that stated usage; creating another thing that's composed of exactly the same pieces as the patent mentions, but used for a different purpose, would be OK.

lutorm 18y ago
Your argument doesn't work either, because in that case you could patent the invention of a battery consisting of metal strips and lemons. Lemons would still be free to eat for everyone. If they use the gene in a process, then that process is an invention and I have no problem with them patenting that invention. But just patenting the gene IS like patenting lemons.
- CWuestefeld 18y ago
  Maybe my analogy was poor, because I think that your final paragraph meshes well with the idea I mention in my last paragraph -- I don't think we're actually disagreeing. That is, the use of BRCA1 for a particular cancer treatment could be patented. But BRCA1 itself is (under my proposal) still fair game, both on its own as well as in other treatments that differ sufficiently from the patented one. As you say, lemons should always be fair game. I can patent its combination with metal strips as a battery; that still leaves you free to patent an alternate use, e.g., as a cleaning agent. What I was trying (poorly, it would seem) to get at was that the fact that we can observe an example of a mechanism or process in nature should not make something unpatentable. Seeing a stick balanced across a stone might give a caveman the idea for inventing the lever; the fact that nature prompted that invention doesn't invalidate it, I don't thing (although there might be questions about obviousness).