Friday, November 27, 2009

Save Money and Paper

Who Owns You? The Corporate Gold Rush to Patent Your Genes is available for the Kindle reader. I think I need to get me one of those gadgets soon! I also have the pdf of the book, which I found on a torrent site (irony of ironies). Let me know if you want it ;-)

There is a 4-part interview with me done in The Netherlands that has just been added to YouTube.

Finally, my talk at Cardozo Law School, Oct 22, 2009, regarding ethics and intellectual property (including some in-depth about the issue of gene patents) is also on YouTube now.

Friday, November 20, 2009

Who Owns You: Review in Choice

(this review made it into this month's "Editors' Picks" as well)

Koepsell, David. Who owns you?: The corporate gold-rush to patent your genes. Wiley-Blackwell, 2009. 187p index afp; ISBN 9781405187312, $79.95; ISBN 9781405187305 pbk, $24.95. Reviewed in 2009 dec CHOICE.

Via reflective consideration of secondary sources, attorney and philosopher Koepsell (Technology Univ. of Delft, The Netherlands) explores economic, ethical, legal, and scientific questions raised by the patenting of one-fifth of the human genome. After two chapters that provide a usefully comprehensive introduction, subsequent chapters address his ontologically informed ethical approach; the evolution of genetic and genomic research; the role of DNA in distinctions among species and individuals; and the legal evolution of patents regarding genes and other natural substances. Koepsell advocates a more limited scope for genome-related patents on the basis of intellectual property case law. He argues against the existing state of genome patent law, and further argues that existing genome patent protections harm science and economic innovation. This readable book covers a lot of ground, but it could benefit from greater incorporation of existing economic, legal, and philosophical inquiry. Recent legal decisions in Europe and North America suggest that Koepsell's emphasis on the demonstration of both an innovation and a commercial use ultimately may prove central to future jurisprudence in cases involving these patents. Koepsell's timely book is highly recommended for all reading levels. Summing Up: Highly recommended. All readership levels. -- C. H. Blake, James Madison University

Reprinted with permission from CHOICE, copyright by the American Library Association.

Monday, November 9, 2009

Stop Lying about the Myriad Patents on BRCA 1 and 2

Numerous defenders of Myriad often claim that the patents do not cover naturally-occurring genes, but rather only "methods" created by humans, or "isolated and purified" genes, which they allege can only be created by man. After all, they claim, isolated genes do not appear in nature, and it takes the work of humans to create them. This is, of course, hogwash. Isolating a gene is accomplished in nature in the process of cellular metabolism. Protein synthesis is accomplished without human intervention, much less, human invention, because various forms of RNA read the beginnings and ends of genes, omit the introns, and construct proteins from the remaining (exon) codons. So, merely finding the beginning and end of a gene is, as I have analogized in my book and elsewhere, equivalent to reading a map, and noting a geographical feature therein. Nature made the feature, and defined its borders, and we simply find it and model it. So that's the "isolation" and it doesn't warrant patent.

The "purification" part is part of nature's bag of tricks too, as mRNA skips the introns (the non-protein coding regions), and in fact some laboratory methods for creating cDNA (thus "purifying" DNA) use mRNA to accomplish this. Again, nothing at all inventive.

Finally, the Myriad patents on BRCA1 and 2 claim un-modified genes -- mutations in the BRCA1 and 2 gene that occur naturally. Their sole inventive claim is "isolation." See the patent yourself, and look at the claims (pp. 153-156). Look specifically at this:

"1. An isolated DNA coding for a BRCA1 polypeptide, said polypeptide having the amino acid sequence set forth in SEQ ID NO:2.

2. The isolated DNA of claim 1, wherein said DNA has the nucleotide sequence set forth in SEQ ID NO:1.

5. An isolated DNA having at least 15 nucleotides of the DNA of claim 1.

6. An isolated DNA having at least 15 nucleotides of the DNA of claim 2."

Now, note: these are not method claims, they are not claims for cDNA, but rather over naturally-occurring mutations to naturally-occurring genes. As I discuss above, and in my book, and elsewhere in this blog, this is not inventive at all. Rewarding for discovery of laws of nature goes beyond the scope of patent, and it inhibits research, and access to the "commons by necessity" that is the human genome and laws of nature in general.

It is like saying that since detached bird wings do not exist in nature, one ought to be able to patent detached bird wings. It's madness, and everyone except patent lawyers and others getting wealthy off this insanity can see that.

Tuesday, November 3, 2009

Good News from the District Court

Judge Sweet did the right thing on the defendants' motions to dismiss, refusing to grant those motions, and ensuring this case can go forward on the merits. This is excellent news, and a sound rejoinder to the insistence by the likes of Holman, Noonan, Quinn, and other pro-gene-patent folks that this case was "frivolous." For non-lawyers, the claim of "frivolous" is particularly charged given that, in federal court, a lawyer can be sanctioned for bringing a frivolous claim. Moreover, in federal court, the pleading requirements for a claim are rather liberal, and as long as the claim is colorable, involves some real, federal case or controversy, and plaintiffs have suffered some injury which the court can redress, then the complaint is not frivolous.

I am still reading the decision, but it indicates that the court is certainly aware of the importance of this case, and the necessity of resolving the claims in federal court. Much depends upon it. I am thrilled about this decision since it means the merits will be resolved one way or another. The summary judgment motion is now pending, and has been fully briefed. Now we shall see how the court decides that motion, which would go to the merits of the claims, and then watch this baby go on up to appeal... eventually, to SCOTUS.