Logic apparently off limits in the law


Recently, I was banned from IPWatchdog.com by its founder, Gene Quinn. At one time, I had posted there as a guest contributor on the issue of gene patents, but it became clear quickly that any amount of questioning or imposing even some logical limits on the reach of patent law was blasphemy to members of the IP-industrial complex. A careful scan of the materials there over time shows that anyone questioning the unbridled patentability of basically anything becomes a pariah. The entire debate for me, over the past few years, has illustrated most depressingly for me that the law has no room for logic, and expedience, profits, and power are what win the day. Let’s look carefully at the current state of the debate, and why the law in this instance contradicts the most basic laws of logic.

The Law of Identity

This is one of the three basic laws of thought known since the Greeks, and understood by all rational people to be necessarily agreed upon for reasoned discourse. A=A, in all cases, without exception. As I pointed out in the ongoing discussion about the BRCA1 and 2 patents, this is a logical law disregarded in the courts through cases that allow for the patenting of “isolated” chemicals, molecules, or elements. The response of the patent professionals is “X” becomes somehow “different” when it is isolated from some substrate or complex. This is the reasoning used by those who claim that Priestley’s isolation of O2 from Mercuric Oxide would result not just in a patent-eligible process for making pure O2 (which I did not contest) but also result in a patent-eligible product, namely: O2. So, let’s get this straight. O2 molecules produced through photosynthesis, as opposed to those produced by the Priestley process, or perhaps the the process of electrolysis from water, are not identical. This clearly violates the law of identity, because morphologically, although completely the same, O2 does not equal O2 if and only if the process for creating them is not identical. But this violates at least two other ontological principles: sparsity, and the distinction between product and process. It unnecessarily multiplies entities (so that O2 created by electrolysis is ontologically distinct from O2 created by photosynthesis, etc.) based upon the method of creation of the particular molecules.

I posed some counterexamples that show why this chain of reasoning fails. Consider, for instance, a person created through IVF. The person remains a product of nature despite his or her method of creation. None of the attributes of that person, excepting his or her existence itself, differ from the attributes of any other person. The intention of the creator of something to create something does not itself make the object an artifact. Rather, the intention must extend to the particular form. A genetically-engineered creature, by which a specific intention to alter the natural state of the creature created is expressed, counts for creating a non-natural thing. O2 created by electrolysis has no new form, and human intention is not responsible for its form, only its origin. Believing that this is enough to create an artificial thing, worthy of the status “invention” means believing that IVF is enough to create an “artificial” human.

Let’s take an example more similar to DNA and genes, and one I use in my book: a string of letters. the following string contains a sub-string:

ddkkghfooocnnnmadhatterkkkggoodiiannnd

Taking seriously the claims of the patent-professionals who support gene patenting, “madhatter” as it appears in the string is qualitatively different than “madhatter” as an “isolated” string. Assigning a variable to the string X=madhatter , they seriously argue that X does not equal X once isolated. It becomes somehow “different.” This is really wonderland.

Too far upstream

This is a critical issue for new technologies, specifically in nanotech, where molecules themselves are often parts of the essential building blocks of technologies, and where the threat of patenting too far “upstream” such as in gene patents, may hinder an entire industry. The law has no bright line distinctions to draw in measuring what is too far “upstream” and ignores, once again, logic. The limitation is often cited as being a limit on patenting “abstract ideas,” but this is a pleonasm. As I have argued, all ideas are abstract. The only relevant inquiry is: is it a product of nature, or is it a new, man-made artifact or process.

Which law rules?
Unfortunately, the courts and attorneys who fail to abide by basic principles of logic, or choose to ignore them when they do not suit their needs, will win unless reined in by the Supreme Court, or by legislatures. There is no separate logic for the law, or for any particular field. We cannot as a civilization engage in reasoned progress unless we agree on certain axioms, including the laws of logic. But more and more, it seems that raw power, expedience, and money win over reason, and that policy is shaped to suit the powerful, logic be damned. But still, I hope.

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About nanowares

Author, philosopher, attorney, and educator interested in science, technology, ethics, and freedom
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43 Responses to Logic apparently off limits in the law

  1. drllau says:

    The problem is that the english language allows for quite a bit of variation in descriptive prose (which can easily baffle patent examiners) whilst the underlying physical manifestation is exact homologs of natural discoveries. The example can be seen in the (increasingly) obtuse description of the RJ45 jack (aka ethernet connection). Unfortunately the patent system is still rooted in verbal descriptions and not (say CAD diagrams with parametric variations).

    • I concur that the technology for disclosure (prose + line drawings) and claiming (single sentences) in patents is very limited. One of the strengths of open source and open hardware, by contrast, is that disclosure is fully functional (source code and design files). At the very least, the patent office should accept full 3D CAD files of 3D inventions.

  2. nanowares says:

    This is an excellent point. Until 1880, the rule was you needed to show a model of the invention so examiners could compare new claims with old art. WIRED magazine recently called for returning to this, and indeed, a model of a “synthetic” O2 molecule clearly is identical with a model of a natural one, and would preclude patent-ability

  3. Since A=A is the foundation of this argument, I think it’s worth exploring that “law” in more detail. If “A” is merely a label, then AA if two different things are both labeled “A”. The gaseous substance produced by the pyrolysis of mercuric oxide, for example, is not the same as the gaseous substance produced by the electrolysis of water. If you chill the gaseous substance produced by water electrolysis, water will condense out of it. If you chill the gaseous substance produced by the pyrolysis of mercuric oxide, no water will condense, but a little bit of mercury might.

    Labeling both of them as “O2” does not make them the same.

    • nanowares says:

      But you’ll agree the point is to try to make “pure” O2 and get the water, or mercury out. So these are merely imperfect processes to achieve the desired pure O2. The ideal, pure O2 sought would be, in each case, identical. In which case, the O2=O2. Unless the patent for the product were to recite the impurities, which would undermine the notion that it is truly O2 that is the desired purified substance sought.

      • (not sure if prior post was accepted. Please delete if this is a duplicate)

        Well, I would certainly agree that if we take the gas produced by mercuric oxide pyrolysis and the gas produced by electrolysis of water and pass each through successive purification processes, that we will converge on two gases that are indistinguishable from each other. And we may call each of them “O2”.

        So now we reach the questions, “Should either of these gases be patentable compositions of matter?” And if so, “How should be claim them?”

        I think your position is that they should not be patent eligible because they are merely substances extracted from naturally occurring minerals (mercuric oxide and water). Hence they are naturally occurring themselves and in essence unchanged by the extraction. An oxygen atom is an oxygen atom no matter what it is bound to (e.g. Mg, H or another O).

        Have I captured that correctly?

      • nanowares says:

        The molecule O2 produced through either means is identical. Moreover, no intention was used to make O2 have it’s unique form. The laws of nature are responsible for it. O2 made By photosynthesis is morphologically identical to O2 from mercuric oxide pyrolysis or O2 by water electrolysis. The dividing line between natural and artificial is intention. Was the form the product of human intention, or the product of nature and her laws?

      • (didn’t see a “reply” link on your 10/4 post, so I’ll do it here)

        So you are saying that I should not be able to claim:

        “1. A molecule, said molecule having the formula O2.”

        because the formula “O2” is a result of the laws of nature and not my intention.

        Correct?

  4. “AA” should be “A does not equal A” in my prior post

  5. Speaking of patenting oxygen, I thought I would take a look and see if Joseph Priestly ever tried to get a patent on his dephlogisticated air. I didn’t find a patent, but I did find this tongue-in-cheek reference to one. Apparently the author did not think that dephlogisticated air had any practical uses.

    http://books.google.com/books?id=clEJAAAAQAAJ&dq=%22dephlogisticated%20air%22%20patent&pg=PA215&output=embed (let’s see if the embed works)

  6. nanowares says:

    Mark Nowotarski (@patentbuzz) says:
    October 4, 2011 at 5:29 pm (Edit)

    “So you are saying that I should not be able to claim:

    “1. A molecule, said molecule having the formula O2.”

    because the formula “O2″ is a result of the laws of nature and not my intention.

    Correct?”

    Almost but not quite. We have to be careful about the language. The formula is man-made, it is a model or representation of a phenomenon of nature: a molecule that occurs in a certain, recurring structure of electrons, neutrons, and protons, and exhibiting certain properties. These molecules owe their structures and properties in these ways not due to any human intention, but rather due to facts or laws of nature or natural phenomena. Even when created through “new” means, the resulting products, even when isolated from other products, complexes, or substrates, maintain their natural forms and are products not of human intention, but of nature.

    If we are going to maintain the product of nature exception, as I think we should, then a logical definition of what counts as a product of nature, and what counts as a product of man is in order. I think the law’s categorization is thus far illogical, and my arguments about the law of identity being defied otherwise support my claims of illogic in the law. If you think that the manner of creating something makes the product itself un-natural, then you have to accept that a child created by IVF is no longer a product of nature, even though all the properties of that child, except for its existence, remain indistinguishable from any other child.

    best,
    David

  7. nanowares says:

    no problem, Mark. Unfortunately, due to my ban, it looks like I’m dodging when in fact, Gene just won’t tolerate reasoned debate. I never lied. Not about anything. I challenge the law, disagree with it, think it’s unjust, but I never lied. Glad you came here to discuss these issues. Hope you’ll stay in touch.

  8. It’s not the law that’s illogical, it’s the way those that practice the law, in this case the patent attorneys, are. Unfortunately, as we have discovered in Australia, where the Federal Parliament has a Bill before it to expressly ban the patenting of isolated biological materials that are “identical or substantially identical to those that exist in nature”, many scientists and publicly funded universities and medical and scientific research centres are in the same camp. The cause. Money! Money speaks louder than words. Indeed, for the proponents of gene patents, that’s all that matters. And so perfectly sane, well educated, expert people argue that black is white. And the recently published Report by the Australian Senate’s Legal and Constitutional Affairs Legislation Committee agrees with them. Why? Because they argue that the Australian biotechnology industry will fall to its knees, that scientists will leave Australia in droves and that medicines will be denied to Australians if the Bill is passed into law. Fear-mongering is the principle mechanism. So far it has worked, but the fight for justice is far from over.

    The law has always been, and I argue still is, that only the act of invention can justify the grant of a patent monopoly. This has been well recognised by many courts. The United States Supreme Court will soon have the opportunity to finally rule on this issue. Let us hope logic prevails.

    • mike says:

      Where would you get new medicines? Your interpretation, because it is more dramatic, is that the claimed DNA is the same as your genome… IT’S NOT! Nowhere in your geneome is the isolated sequence “ATCG…” Your genome is a long strand of DNA, proteins, it has a structure that is only useful for producing your cells. IF you want companies to invest in personalized medicine, specific cancer treatments that target your cancer in your body, then those companies need to obtain patents. The Australian government was correct, you just have a gut feeling it’s not right, but your gut feeling does not follow the law or the intent of the law.

      • nanowares says:

        Mike, you apparently believe that the string “madhatter” as it appears embedded in the longer string is a different thing than the “isolated” “madhatter.” But just as in the genome, where genes code for proteins, providing the same semantics when either embedded within or isolated from the genome, the meaning of “madhatter” remains the same in both its embedded and isolated states. What do you think is the relevant difference? X remains X, and no amount of human intention created that string or its semantics.

        Now as to your utilitarian argument, there is no evidence that patenting that far upstream is necessary to encourage drug discovery, and studies indicate that these kinds of upstream patents may hinder that discovery. Moreover, regardless of the utility claimed, my argument is deontological, grounded in the notion that property claims are just when they are grounded in certain states of affairs, such as brute facts of possession. Since types, laws of nature, and natural products belong to what I argue is a “commons by (material or logical) necessity” that is not able to be enclosed or possessed, ownership claims to these sorts of commons are categorically unjust.

        thanks for your comment.

  9. Ken Alfano says:

    David – I really like your “intended vs. non-intended” and “new design vs. new instance” dichotomies. That’s a very helpful formulation, and perhaps a better one than my more generic approach of looking for pre-existing “distinct elements” within products of nature (http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1537690). To intend a new instance of somebody else’s (or nature’s) design is surely not inventorship, and likewise for creating something “new” for which nature already provided a blueprint to do so (thus no true “design intention”). Admittedly, we do have to go up against US precedent regarding insulin, adrenalin, B12, etc. – but you and I have always been candid about this.

    I found the Federal Circuit COA reasoning in Myriad rather bizarre: the reliance upon “breaking covalent bonds” as being somehow definitive really seems to miss the point: nobody contests that breaking covalent bonds indeed makes something different, but humans aren’t choosing WHERE to break those bonds! If you want to “break bonds” someplace where nature hasn’t done so already and/or pointed you right to it, then fine, but as you say – there needs to be some new “intention” for a new “design.”

    [Oddly, Myriad’s lawyer argued that it’s analogous a baseball bat being whittled out of a log – which sort of turned my line of reasoning on its head: they shockingly argued that gene “inventors” actually ARE somehow “choosing” where to cut (from DNA), supposedly like the first baseball-bat inventor chose where to cut (from wood). The dissent’s analogy of “snapping a leaf off of a tree” is closer to my own analogy of “stripping bark off of a tree,” both of which seem more apt – even if we concede that the particular means of separation may be more elaborate in the case of genes.]

    *This is great work, David – I hope you continue to develop it further and that legislatures might even take notice. (As a short-term practical matter regarding US caselaw, I still suspect the best shot for the Supreme Court to overturn Myriad is through an obviousness argument – i.e., that the differences from naturally-extracted mRNA are simply too trivial in light of known phenomena.)

    Your friend,
    Ken Alfano

    • nanowares says:

      Thanks, Ken, for your thoughts. I do hope the courts take notice of the faulty reasoning behind the Parke-Davis case and its progeny that got us where we are, but if necessary, I’ll take a decision on obviousness.

  10. nanowares says:

    in sum…

    I use the IVF example because it seems uncontroversial to me that a person, created by some artificial process, where the intention goes only to the existence of that person, but not to any of its features, remains a natural product created by an unnatural process. IVF persons seem clearly not to be inventions anymore than are trees in an orchard. As well with the O2 example, since no feature of an O2 molecule’s existence besides its bare existence is the product of any human intention. O2 molecule exist as they do due to laws of nature, not due to any degree of human inventiveness expressing any human intention. Not so invented things, like chairs, duffel bags, or genetically engineered corn, all of which incorporate features devised by human intention. I am trying to make some sense of the legal distinction between “abstract ideas, natural phenomena, and products of nature” all of which are not eligible for patents, and everything else. As with the case of O2 molecules, there are ontological and practical reasons to argue that despite the process by which they are devised, any two O2 molecules are “identical” and, their forms are the products of nature, and attempting to distinguish among those molecules based upon the specific genesis of any such molecule is absurd, impractical, and counter to the purposes of patent law. Indeed we ought to award patents (if we award them at all) to innovative new processes to produce products of nature, but not to the products themselves.

    Imagine the case where one is granted a patent to the process of electrolysis for making O2 and the product itself, the O2-created-by-electrolysis. Now, having that patent, the patent holder can seek to stifle the sales of any photosynthetically-produced O2 as the claims in the patent simply state “O2”… there is no way to distinguish chemically which container of O2 was created by electrolysis and which by photosynthesis, each has traces of H2 in them. So our patent-holder can keep competitors at bay, collect rents, and threaten others who attempt to enter the O2 market for twenty years. This is the practical result of what I see as both a logical and ontological error in the law, which on the one hand recognizes the distinction between processes and products by allowing patents on either and both, but which also has an exception against patents on products of nature, without any guidance as to what such a thing is, and with a tremendous loophole that allows anything devised by nature to suddenly become a thing devised by man, even where the intention behind the form (as opposed to the genesis) is lacking.

    I propose this as both a practical and logical solution to the big gap in the law regarding the patenting of “isolated” “products of nature” … I’m always interested to hear objections.

  11. mike says:

    The first time these things are isolated, if I am the first ever to identify O2 as a NEW and Useful compostion then I could have gotten a patent. Obviously, O2 has been previously isolated.

    If there were a new material that had never been identified, like an asbestos, or a specific carbon structure, or a chemical composition that has medicinal properties. The inventor who isolates this new composition that has never before been isolated, identified or presented to the patent office or in literature may get a patent. Any new and useful composition may be patented.

    The statute does not say, “anything that is present in nature can never be patented.” That is your argument not the statute. Aspirin, found in bark, patentable at one time but not anymore because it is anticipated/obvious. Taxol, also found in bark, patentable at one time but not anymore because it is anticipated/obvious. There are thousands of patents to specific DNA and/or protein sequences that have never been identified before the patent was filed, those are also patentable.

    The only reason your “O2” example sounds so absurd now is not because you are talking about something that was never patentable, it is simply because in our current era purified O2 seems blase. 100 years ago (or longer) when the synthesis of urea from neither man nor dog was news, then pure O2, novel ways of generating pure O2, and patents to 90%, 95%, or 99% pure O2 may have been more relevant.

    WHEELS, they’re so simple. Anyone can roll, why would you get a patent for THAT?

    • nanowares says:

      Mike, you have done well in stating what the law is, but I am arguing that its current interpretation is nonsensical and ultimately unjust. I maintain that O2 in any state is a product of nature, and my reasoning hinges upon the nature of human intention and invention. What for you counts as a product of nature if not something like O2, whose structure, properties, etc. have nothing to do with human intention? Moreover, it’s not any statute that creates the exceptions against patenting products of nature, natural phenomena, or abstract ideas, as you should know. It’s the Supreme Court that enunciated them in Chakrabarthy. As such, they are the law of the land. I believe, based on the reasoning I set forth, that the courts’ current interpretation of what counts as invention, based upon the act of “isolation” is nonsensical, and leads to absurd results in which we must essentially state that X is not X. The reason the O2 example sounds absurd is because most rational people would draw the line at awarding patents for discoveries of products of nature, and before the “isolation” conceit, so did the courts.

      Thank you for your comment.

  12. mike says:

    But O2 as a product of nature would not have been useful for man. O2 at the low levels it is found in the atmosphere (it is a different chemical structure in Mercuric-oxide because it is covalently bonded to mercury). The act of isolating O2 either as a new substance or through a through a new process provides a benefit for man – now grandma can stay alive longer because we can artificially increase O2 levels in her bloodstream. If there were no patents, someone may discover a new way to purify O2 and not tell the world so that their competitors would never be able to compete. They would have an actual monopoly. Unfortunately, the technology would die with the inventor/company and have to be re-invented later. Patents create a moving front of improvement, small and large, through inventor disclosures in all areas (medical, mechanical, IT, etc) to the public.

    Your madhatter example seems simple given the piece of information presented, gobbledey-gook-madhatter-gobbledey-gook. But what if 10 bp downstream was an unseen and previously unknown strand, gobbledey-gook-cancer-gobb-blocking-ledey-protein-gobbledey-gook. By disclosing cancer-blocking-protein to my colleagues and developing a screen for mutations in cancer-blocking-protein, I obtain a limited 20 year monopoly, not on the gene in humans, but on the tests I developed to detect specific mutations that I also disclosed to the public. The identification of this new, useful, and previously undisclosed composition (cancer-blocking-protein) is patentable under the law and has helped many small biotech businesses develop. The presence of a patent portfolio for small biotech companies is essential to obtain venture capital (VC) funding, develop better tests, and provide a commercially viable, EU/FDA approved product. Mind you, EU/FDA approval is not cheap and without patent protection would not be sought on a lot of new medicines, biological products, or medical devices. Why would I seek EU/FDA approval if after development Dr Reddy, Teva, or some other knock-off is going to copy my product?

    I do not agree with the way Myriad is managing their patent portfolio (it is very draconian). Morally, I would have preferred if they had licensed their test to at least 2 other labs allowing Myriad to make money and individuals to choose medical providers. That is not what happened, if someone invents a better heart pump and they want to be the only surgeon that puts it in, it is their right whether I agree or not. IF a bank wants to foreclose on an orphanage that is in arrears, not much I can do about it. And the list (of perceived and real injustices) goes on… Note that for each injustice, there is alternative equally compelling reason for the action. The surgeon develops a heart institute, the bank puts in a housing complex/gentrification, etc.

    Myriad has continued to develop dozens of new tests and identify other markers for a variety of different diseases (they are not all EVIL, they are just jerks). Additionally, their patent on 15 year old technology is set to expire soon, allowing generics to enter the market in the next few years. You are definitely beating a dead horse. The human genome was sequenced circa 2000, making 99.99% of all sequence only claims anticipated or obvious. Your proposal to make all “gene” patents invalid would have far reaching and unintended consequences. Making all treatments ‘free for the good of man’ requires the entire system be revised: research, development, commercialization and treatment would all have to be managed by the government. I cannot imagine senators/congressman/parliment making rational decisions on which medical treatments should be developed (It may be a good job for Prince Harry but I wouldn’t trust Charles with the task).

  13. nanowares says:

    Of course your entire first paragraph is countered by the fact that Priestley did isolate O2 without the incentive of patent, and others have since profited by its isolation, purification, and sale, all without the benefit or necessity of patents.

    Regarding your subsequent points:

    – in my book, I argue that new processes are of course patent eligible, so patent the new processes, but don’t pretend that the mere act of identifying and “isolating” the strings that evolution devised is somehow inventive.
    – I believe the free market will sort out who wins and loses in the market, and the chance of success is worth a risk for an enterprising entrepreneur. There is no right to success in the market, and there is certainly no just property right over non-rivalrous, non-exclusive things like those belonging the the “commons by necessity.” The only just property is rivalrous, exclusive goods. If there is a market, risk-taker will profit by developing products people need, and they don’t need the incentive of a governmental monopoly that prohibits competition.
    – disclosure is much less necessary through patents than it has been in the past as reverse-engineering is easier and cheaper, and in the field of genetics, the tools for sequencing and discovery are becoming cheaper all the time. Moreover, there’s plenty of publicly-funded research going on out there that I have no fear that new and valuable research will make its way to the market even without the incentive of a government-sponsored, anti-competitive monopoly.
    – I’m certainly not arguing that anything should be made free for the good of man, I am arguing that facts of nature, products of nature, and natural phenomena are necessarily free for all to find, use, and profit from without an artificial monopoly created by the state.
    – the state should certainly not make any medical decisions, I don’t even trust them to award monopolies, why would I trust them to actually conduct business?

    Why don’t you trust or believe in the efficiency and justice of free markets, Mike?

    • mike says:

      To trust in open free market would require absolutely no government oversight. Simply produce products and sell the best product. This system with no approval for medical treatments does not provide the best medical treatment, it only provides the cheapest. Currently in China, you can by any drug from a chinese manufacturer, but people who can afford it pay a premium for certified “US” drugs.

      Alternatively, there would be no incentive in the US for a startup company to develop a new treatment without patent protection. There are many examples where a scientist in a university has isolated a new composition (like a new ampicillin from fungus). In order to start a new company to produce this composition for commercial sale, the professor needs funding, a business plan, trials to see how it works in humans, etc. He does all of this to start his business, then Pfizer, Dr Reddy, and/or Teva see his new medicine. They can copy and produce this medicine at 1/2 the cost because they already have the equipment, sales force, and associated overhead covered. The scientist never recovers his investment and is left without any reward for his new invention.

      What happens the next time he purifies a new composition?

      • nanowares says:

        More people died in the US from prescription painkillers than in cars, and most commercial drug discovery now seems to focus on baldness, erectile dysfunction, and obesity. I’m not convinced we’d be worse off if we got the govt out of “regulating” that market entirely, and eliminated the terrible skewing effects of patents. I see no ethical problem either with letting whomever can reach the market first do so.

        As I said before, no one deserves to succeed in the marketplace, other than whomever reaches it efficiently and effectively with a product that is valued. You seem to think there is some moral right to profit from one’s discovery or creation, which is something that the French have believed for a long time, and that followers of Ayn Rand believe, but most everyone else understands that there is simply no such natural “right” and that is why the positive laws of IP laws were created in the first place, but now there is little evidence that they are necessary or effective, even while their strength and length have increased significantly since their invention a couple hundred years ago.

      • mike says:

        Nice FACT: “More people died in the US from prescription painkillers than in cars, and most commercial drug discovery now seems to focus on baldness, erectile dysfunction, and obesity … ”

        Actually, more people die from heart disease, cancer, stroke and chronic respiratory disease than any other cause. More people from 1-44 die in auto accidents than from prescription pain killers.
        In the US, ~33,000 people died in auto accidents last year, and ~15,000 people died from prescription pain killer overdose, most due to illegal use of the pain killers.

        Patents do not give anyone the right to succeed, they are merely a trade-off for public disclosure. IF you don’t like that trade, you should petition your government to get rid of patents. Both large and small businesses file patents in all technology areas. If the cost/benefit were not there, the companies could merely publish their findings in a trade journal and save the $10,000’s of dollars they pay for patents in each country. You don’t have to get a patent and the more you disclose to the public, the less there is available to patent.

      • nanowares says:

        (actually, the number of deaths from prescription pills last year was more than 20,000. 15,000 died from prescription narcotics alone.)

        Here’s the headline: “Drug deaths now outnumber traffic fatalities in U.S., data show
        Fueling the surge are prescription pain and anxiety drugs that are potent, highly addictive and especially dangerous when combined with one another or with other drugs or alcohol.

        Lori Smith of Aliso Viejo with photographs of her son Nolan, who died of a drug overdose in January 2009, six months shy of his 16th birthday. A toxicology test turned up Zoloft, which had been prescribed for anxiety, and a host of other drugs that had not been prescribed, including two additional anti-anxiety drugs, as well as morphine and marijuana.

        Lori Smith of Aliso Viejo with photographs of her son Nolan, who died of a… (Liz O. Baylen / Los Angeles Times)
        September 17, 2011|By Lisa Girion, Scott Glover and Doug Smith, Los Angeles Times

        Propelled by an increase in prescription narcotic overdoses, drug deaths now outnumber traffic fatalities in the United States, a Times analysis of government data has found.

        Drugs exceeded motor vehicle accidents as a cause of death in 2009, killing at least 37,485 people nationwide, according to preliminary data from the U.S. Centers for Disease Control and Prevention.”

  14. mike says:

    New strings are patentable, just not strings that were in people.
    What about strings from an extremophile like Taq polymerase isolated from Thermus aquaticaus and used commercially for PCR? Used to develop a whole new process for sequencing DNA. New, better polymerase proteins were/are developed through mutation or retrieved from entirely new species of extremophiles. Can man get a patent to a new protein isolated from an Extremophile? Remember the isoalted polymerase is useful for PCR but the polymerase inside the bacteria could never be used for PCR because other proteins in the bacteria would degrade any DNA/RNA you are trying to copy.

    Only de novo strings that are entirely synthesized by man and have no natural counterpart? What if I design an entirely new ribozyme, then find out later there was a counterpart somewhere in a new species in the marianis trench, does my patent suddenly become invalid? What if the ribozyme is slightly different? by one nucleotide? by 1%? by 10%?

    The current system doesn’t seem that non-sensical to me, if I isolate a new and never before seen composition, not a leaf, apple or piece of wood, but an entirely new composition (i.e. purified taxol) with specific properties and activities, then I deserve a patent. If that composition was previously known, then I don’t deserve a patent. The composition must be different and not obvious given the compositions we currently have. Simple gene patents will fall off soon because they will have to overcome the sequenced genome as prior art.

    In the United States, the statute, not the Supreme Court, defined what is patentable. “Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof…” (35 U.S.C. 101, emphasis added, I hope).

    The alternative argument is that all elements on earth are known and that new compounds don’t exist because they are made up of different arrangements of the same elements. All letters are known, there are no new words, no new texts being written, no new songs, because all the letters are known, the dictionaries are written and it’s all been done. You cannot get a patent to a new gene if that gene existed anywhere in nature because it is known at some level to someone who is all knowing. It is not publicly available, but it could have been if we knew everything about everything that existed in nature.

    • nanowares says:

      I make no distinction between strings found in humans or any other creature, the critical issue is simply this: is the form of the product the creation of human intention, or the result of the fundamental laws of the universe alone, acting unintentionally through processes like evolution? If the former, then fine. If the latter, then it belongs to the “commons by necessity” and ought not to be patented. That’s the essence of my normative claims.

      You are clearly a fan of the current system. Most IP attorneys seem to be, as one would expect.

      New permutations of previously existing things may be inventive, and patent-eligible, but the things that nature already devised, like O2 molecules and the BRCA1 and 2 breast cancer mutations should not be. Clearly, chairs are made of wood, a natural product that ought not to be patented, but the new form, devised by human intention, expressed in some previously exiting medium, is inventive.

      I’m still waiting for your definition of what a natural product or natural phenomenon is, if you think that by replicating any naturally-occurring thing it suddenly transforms it into something artificial. Is a human created through IVF no longer a natural product? Or is an IVF baby simply a natural product created through a new, potentially patentable process? The latter seems more likely to me.

      • mike says:

        A composition that has not yet been identified is patentable, I agree with that and it works. Many drugs are merely isolated compositions that in purified form have medicinal properties. If I discover a new drug, I should be able to develop that drug and protect my invention. An isolated strand of DNA that has never been identified is a new composition, actually it is entirely different than it ever existed in nature so would be more patentable under your definition than a drug composition.

        A human created through IVF is still a human, the only difference is that fertilization occured in a petri dish rather than a fallopian tube. Thus the analysis you present for an IVF human does not create a new ‘human’ or an isolated ‘human’ it creates what is already known in the art. The process and variations of the process are patented.

        If you want to push the ethics line to the extreme, your example should be: “I insert a ‘good’ cystic fibrosis gene into an IVF embryo with cystic fibrosis, I have now created a new type of human, can it be patented?”

        The current intent under the law is a good and established system. Your analysis can be manipulated by lawyers, one way or the other, to suit their client’s needs more than the current system. What you are proposing is more flawed rather than better, it just suits your hypothetical argument.

      • nanowares says:

        The only reason a genetically-modified human would not be patentable is the specific statutory exclusion of GM humans. Otherwise, it’s as patent-eligible under my reasoning as a genetically-modified corn. Being human is not a relevant criteria in any of my arguments.

        Lawyers have manipulated the current system plenty, pushing back against reasonable boundaries for what counts as a product of nature such that we’re now in the mess we’re in. Of course you like it, as most IP lawyers do. It provides plenty of opportunity to file patents, but there’s no evidence that innovation would suffer, or that the system would otherwise collapse if we reset the boundaries for products of nature along the lines I suggest. I am still waiting for your definition of what counts as a product of nature.

  15. mike says:

    bold turned on for “discover” but not turned off afterward. I’ll have to work on that. Sorry.

  16. nanowares says:

    Mike says: “Actually, more people die from heart disease, cancer, stroke and chronic respiratory disease than any other cause. More people from 1-44 die in auto accidents than from prescription pain killers. In the US, ~33,000 people died in auto accidents last year, and ~15,000 people died from prescription pain killer overdose, most due to illegal use of the pain killers.”

    and yet all these fancy patented drugs do little to make the US population more healthy, though they certainly enrich the pharmaceutical companies.

    Mike says: “Patents do not give anyone the right to succeed, they are merely a trade-off for public disclosure. IF you don’t like that trade, you should petition your government to get rid of patents. Both large and small businesses file patents in all technology areas. If the cost/benefit were not there, the companies could merely publish their findings in a trade journal and save the $10,000′s of dollars they pay for patents in each country. You don’t have to get a patent and the more you disclose to the public, the less there is available to patent.”

    Well, where I currently live, The Netherlands, had no patent system from about 1860 to 1920, and did quite well in the meantime innovating and growing economically. My most recent book “Innovation and Nanotechnology: Converging Technologies and the End of Intellectual Property” calls on all innovators to simply ignore IP and innovate without government help. Let’s see if they keep doing that, as more turn to Open Source methods of innovation.

    Thanks again for your comments, Mike.

    • nanowares says:

      There’s no reason to petition governments to get rid of IP. They never will anyway, entrenched as they are with IP lobbyists, drug company money, and entertainment industry donations. The only recourse is for innovators and creators to do as they did in the past, rely on risk in the free market, reduced transaction costs through avoiding lawyers fees and litigation, and simply create and ignore IP, as more are increasingly doing.

  17. mike says:

    Your statement, “actually, the number of deaths from prescription pills last year was more than 20,000. 15,000 died from prescription narcotics alone.” implies that these 15-20,000 people were patients that died as a direct result of doctor monitored prescription of the medication. Instead 20,000 deaths is a result of non-patient use of prescription painkillers, drug abusers taking Oxycontin, Vicadin, Xanex, and of course Michael Jackson taking Propofol (which most of us can’t get anyway). This high number is representative of drug abuse, not poorly designed drugs. If these individuals weren’t overdosing on prescription painkillers, many would OD on other depressants like heroin, alcohol, cough-syrup…

    How is the number of prescription painkiller deaths related to the argument for or against patentability of newly discovered compositions? How does this differentiate DNA/Protein sequences from other chemical compositions?

    My argument is simple: Patents are valuable for the public because they encourage innovators to disclose their new compositions and methods. A newly identified chemical composition is patentable. DNA sequences are patentable because they are entirely new chemical compositions that have never before been identified. Research continues even when the gene is patented, you can look up BRCA on NCBI (http://www.ncbi.nlm.nih.gov/pubmed/?term=BRCA) and see plenty of recent articles that aren’t published by Myriad. Your struggle against DNA patents is moot because the human genome has been sequenced any patents to DNA/Protein sequences will be obvious in light of the human genome. Existing patents to genome derived DNA sequences will expire soon (before ~2020). In the US, congress has finished patent reform and it took an entire decade from start to finish. Good luck starting patent reform again, it only comes around every 50 yrs. Australia and the EU agree that DNA is patentable, along with most other WIPO countries. Places where patents are lax like China, find that they must enforce patent rights to encourage development in their country. Free (or nearly free labor) and human rights abuses are not enough to encourage large corporations to bring cutting edge technologies to their country, patent rights are required as well. In total, you can’t get rid of DNA patents and they are not harmful.

  18. nanowares says:

    Mike, you’re losing track of your claims. The reason it is relevant is because you claim that without patents as an incentive, we wouldn’t have such a thriving and beneficial pharmaceutical industry. I take issue with this system’s current value, and raise its failures as a counterargument. There’s plenty of evidence that the US’s pharmaceutical industry has little positive impact on US citizens’ overall health. Moreover, our health costs are substantially higher, in part due to the effect of monopolies at various levels, including patents. Patents are not causing the benefits you claim for medicines and health, though they have made a robust pharmaceutical industry, enriched patent attorneys, and encouraged the rampant proliferation of patented, though questionable medicines.

    Non-engineered DNA sequences are not entirely new. They are not the creations of man’s intentions. You can repeat it all you want, but it doesn’t get past my law of identity arguments.

    I haven’t been making utilitarian arguments, so why do you keep raising them as though they have any bearing on my arguments about “isolated” products of nature?

    China only created an IP regime to please the west, not because it provides any benefit to their innovation.

    You still haven’t given me any definition of what a “product of nature” is. Why not? You clearly think my definition is wrong: anything whose design or form is not the product or result of human intention.

    Care to suggest an alternative?

    • mike says:

      Yes, here’s an alternative “Anything not found in nature.” I have never found purified O2 in nature, for some reason the blasted stuff just diffuses. Lucky for you it’s obviously been done before.

      I go to that because it’s the easiest to rebut, you act like it’s nothing, but it’s something. Purified O2 has value, it can save peoples lives, it also has value for welding, and other processes. Now many of the methods for concentrating oxygen that were patented years ago are free to use today by any company competing in an open market. Those same methods may have been concealed if not for patents and then those methods would not have been publicly available today.

      Your arguments are hypothetical, it should be “product of human intention” in your scenario becuase you feel it is a better definition of patentable subject matter. But that excludes many new compositions intentionally isolated through diligent research and identified as beneficial for different utilities (pharmaceuticals, electronics, catalysts, …). DNA patents don’t stop research, they don’t hinder non-commercial uses of the DNA sequence, and they protect investments in the biotech industry. Patents for you are not an important part of business, but for investors they prefer companies with a good patent portfolio, a good business plan, and a profitable business.

      • nanowares says:

        Pure O2 is produced via photosynthesis, you can see tiny bubbles of the stuff coming off vegetation in water. What doesn’t exist in nature is large quantities of the stuff, but the O2 molecules, morphologically identical to any other O2 molecules produced through any other method abound. So, the artifact, the invention, is some new process for isolating and accumulating it, but not the molecules themselves whose structure depends not upon any human intention, but rather due to laws of nature. Nature abounds with unmodified genes, molecules, elements, etc., all of which exist despite any human intention. If man comes up with some way to synthesize these things and accumulate them, they don’t suddenly become artifacts (man-made), they remain products of nature which can be accumulated through some synthetic means.

        Intention is important because it clearly distinguishes what is inventive and what is not. The law says that products of nature are not patent-eligible, but provides poor guidance for how to distinguish between man-made and natural products. “Anything not found in nature” is a poor attempt since nature is all-encompassing, given we are part of nature too. So, perhaps to rescue your attempt we might say: “anything not found except for the action of man” … but this leaves open accidents, which are the results of human action, but not intention (think metal shavings left over from the carving of metal) … But these sorts of accidents are not ordinarily prone to patent-eligibility, nor does a patent scheme rationally encourage them since they are, after all, unintended consequences of intended actions. Rather, there must be some directed intention toward the end-product, which is why I think my formulation is in keeping with the purposes of the patent-law as well as those of the courts in defining the product of nature exception. So finally “anything not found in nature except for the action and intention of man” works best, and is more or less what I say the definition should be.

        Regarding the repeated utilitarian apologia, they are inapposite to my arguments so I’ll not address them. They are also not supported by any causal evidence.

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