Restrictive Patents a Bad Thing?

[m1ckran]

I really look forward to reading Doom9's news section and especially the Michael Chrichton article mentioned today (21st March).

The author describes how he disapproves of patents relating to natural conditions such as diseases and genetic construction, and how a commercial organisation can effectively claim to "own" a naturally occuring relationship by buying a patent. That's if I understand it correctly.

Could this not be a "Good Thing" for most of us? I suffer from heart disease and, although I am financially comfortable, I cannot afford to be extravagant because I am unable to work. Just one of those things that people all over the world have to adjust to. Or is it?

Throughout life in general, the privelege of ownership also involves a level of responsibility. For example, in exchange for the privelege of owning my own property I must ensure that bits of my roof do not fall on people. If one of my roofing tiles injures a passerby, I can be sued because I am the owner of the property.

Of course, it's impossible to sue anyone for a naturally occurring disease because it's an Act of God, or it's an act of nature, or there is no owner in law to claim against.

But, apparently, there may now be someone to sue: the corporation that "owns" the disease through its patent.

Am I writing drivel or are there some lawyers out there who would like to comment?

[Mug Funky]

interesting idea.

so a corporation is breaching it's duty of care because it owns genes that don't perform perfectly?

i think that'd only be valid if some product made using the patented genes/processes/whatever causes some damage later on. examples are GM crops that cross-breed with non GM plants via cross-pollenation, causing a loss for the farmer of non-GM stuff who can no longer claim the "GM free" slogan. however, i don't think any cases of this have actually been tested in court, and even if they were, the suit would probably be against the rival farmer who allowed their pollens to spread. but then IANAL.

but to be honest, the idea of things like genes, natural processes or even species being owned and controlled by anyone at all gives me the flying willies. i don't throw this term around much at all, but i would call it evil.

perhaps you should rent out "the corporation" and watch it. it's one of the most frightening things i've ever seen, though the style it's presented in can seem a little odd.

[Doom9]

well... the guy who owns "cancer" will be rich and families of cancer patients will all be in the poor house, because there's no responsability in patent.. only making money and ripping people off. If you have cancer, you're infringing on the patent unless you're paying license fees... so basically you have to license your own death. And this completely ludicrous statement just gives a good illustration of today's patent systems.

[Doobie]

Owning a patent provides the owner with no responsibility. Some patent owners do nothing other than shaking down others they accuses of violating the patents. This group of patent owners may generate many frivolous patents or buy patents, with the only intent of shaking down others, which generally interferes with progress. They have no intention of discovering anything.

On the other side of the coin are serious researchers and scientists who deserve compensation for their discoveries and who benefit us when they're given the incentives that patent protection exists for. Why should this apply any less to natural conditions?

The current strength of patent and copyright protection far exceeds the constitutional and optimal degrees.

[adam]

As already mentioned this potential exanding of the scope of patents does not mean any increased responsibility or liability, all it really means is that there are less things people can do in that area without infringing on your patent. And the article mentioned really greatly mischaracterizes what this case is about. You can "own" elements, genetic material, organisms, etc... but only if they are not naturally occurring and YOU create them via a patentable process. You cannot own cancer, you cannot own existing genetic material and this case is not going to change this.

You can already, in some circumstances, patent both your invention as well as the "relationship" between that invention and its subject matter. The question in this case is whether the scope of such patents prevents others from associating other similar inventions, patented or otherwise, with the subject matter as well. This can all be broken down into a very simple example. You have a patent on a device to test for cancer and anyone who uses it must pay a royalty to you. Nothing shocking here. If doctor X uses another invention that is patented by someone else to test for cancer, then he pays a royalty to them instead and not to you. If Metabolite wins this case then essentially what will now happen is that this second patent holder must pay a royalty to the first one. From the doctor's point of view nothing changes except that he (his hospital really) might have to pay a bit more to license the device, since they themselves have to give a cut to the high patent holder on the totem pole

Basically, the first person to develop an invention in a field will get a cut of any further inventions that accomplish the same process but in a different manner. I think its a terrible idea. But the good news is that the ruling in this case will also impact the scope of the infamous business method patents. If Metabolite loses the more egregious business method patents (1-click purchase) may be invalidated or substantially watered down.

Chrichton is getting too hung up on this patenting of thought issue, that's really just the way the court is breaking down the analysis. Unlike what he says, his article is not infringing. A doctor who makes that same conclusion (elevated X means Y) is not infringing. You can THINK about this stuff all you want without violating the patent. You can use the patented assumption freely and come to whatever conclusions you want, publish them, whatever. What the case is saying that you cannot use an actual device, which in most cases is going to be patented by someone anyway, to test those levels without infringing on the patent. The assumption relies on use of that device. If you arent using that device or a similar one this aspect of the patent does not apply.

[adam]

I also have to quickly address some of other things mentioned in the Crichton article because I really think he took some serious artistic license. He says that lawyers, generally I guess, now advise their clients to patent sports moves and story plots. This is just ridiculous. There was ONE article published that took the hypothethical viewpoint that sports moves could meet patent requisites but itself concluded that virtually nothing could ever qualify. There has yet to even be an application for such a patent. As for movie plots, as far as I'm concerned this is a literal joke. A patent attorney by the name of Andrew Knight went off the deep end ~2 years ago and started filing patents for everything including movie plots. I guarantee they will not issue. To illustrate how this is, in my opinion, literally just a joke, he has publicly stated that he is attempting to patent any and everything in an attempt to break the US and world record for most patents held. And here's the best part of it, he has filed for a patent on the process of breaking this patent record. Basically he has invented the process of filing patents, not for their worth, but just for the purpose of racking them up to break a record.

[point_vector]

you know, lets just pool together our money and patent things like: oh lets say, concrete, or steel or how about clothing?, or electricity even!!! If we beat corp. to these patents, it will show the stupid patent office how stupid they really are. Patents like these would force them to change their practices, mostly because the world couldn't afford to pay the royalties on those things.
Does adam work for the patent office?

[adam]

No I don't work for the patent office but I deal with those guys all the time. I'm an attorney and I do alot of intellectual property work but not patents, and I'd never want to. Its literally another language. But there's alot of overlap with what I do so...

[m1ckran]

Interesting stuff but more than a little depressing. I wonder how a supposedly civilised society can tie itself up in knots. Money talks, I suppose.

I still think that there should be some element of responsibility involved with patents, to prevent what appears to be a "money for nothing" philosphy. It often looks suspiciously like legalised extortion to me.