Fwd: [ cacklinggrackle] Patenting thoughts

[Guest guest]

---------- Forwarded message ----------

Lassiter Jonez <ljonez23

Dec 21, 2006 8:28 AM

[cacklinggrackle] Patenting thoughts

" cacklinggrackle " <cacklinggrackle >

 

 

 

http://www.nytimes.com/2006/03/19/opinion/19crichton.html?ex=1166850000 & en=9a6c4\

3ffcc422634 & ei=5070

 

March 19, 2006

 

This Essay Breaks the Law

By MICHAEL CRICHTON

 

• The Earth revolves around the Sun.

 

• The speed of light is a constant.

 

• Apples fall to earth because of gravity.

 

• Elevated blood sugar is linked to diabetes.

 

• Elevated uric acid is linked to gout.

 

• Elevated homocysteine is linked to heart disease.

 

• Elevated homocysteine is linked to B-12 deficiency,

so doctors should test homocysteine levels to see

whether the patient needs vitamins.

 

ACTUALLY, I can't make that last statement. A

corporation has patented that fact, and demands a

royalty for its use. Anyone who makes the fact public

and encourages doctors to test for the condition and

treat it can be sued for royalty fees. Any doctor who

reads a patient's test results and even thinks of

vitamin deficiency infringes the patent. A federal

circuit court held that mere thinking violates the

patent.

 

All this may sound absurd, but it is the heart of a

case that will be argued before the Supreme Court on

Tuesday. In 1986 researchers filed a patent

application for a method of testing the levels of

homocysteine, an amino acid, in the blood. They went

one step further and asked for a patent on the basic

biological relationship between homocysteine and

vitamin deficiency. A patent was granted that covered

both the test and the scientific fact. Eventually, a

company called Metabolite took over the license for

the patent.

 

Although Metabolite does not have a monopoly on test

methods — other companies make homocysteine tests, too

— they assert licensing rights on the correlation of

elevated homocysteine with vitamin deficiency. A

company called LabCorp used a different test but

published an article mentioning the patented fact.

Metabolite sued on a number of grounds, and has won in

court so far.

 

But what the Supreme Court will focus on is the nature

of the claimed correlation. On the one hand, courts

have repeatedly held that basic bodily processes and

" products of nature " are not patentable. That's why no

one owns gravity, or the speed of light. But at the

same time, courts have granted so-called correlation

patents for many years. Powerful forces are arrayed on

both sides of the issue.

 

In addition, there is the rather bizarre question of

whether simply thinking about a patented fact

infringes the patent. The idea smacks of thought

control, to say nothing of unenforceability. It seems

like something out of a novel by Philip K. Dick — or

Kafka. But it highlights the uncomfortable truth that

the Patent Office and the courts have in recent

decades ruled themselves into a corner from which they

must somehow extricate themselves.

 

For example, the human genome exists in every one of

us, and is therefore our shared heritage and an

undoubted fact of nature. Nevertheless 20 percent of

the genome is now privately owned. The gene for

diabetes is owned, and its owner has something to say

about any research you do, and what it will cost you.

The entire genome of the hepatitis C virus is owned by

a biotech company. Royalty costs now influence the

direction of research in basic diseases, and often

even the testing for diseases. Such barriers to

medical testing and research are not in the public

interest. Do you want to be told by your doctor, " Oh,

nobody studies your disease any more because the owner

of the gene/enzyme/correlation has made it too

expensive to do research? "

 

The question of whether basic truths of nature can be

owned ought not to be confused with concerns about how

we pay for biotech development, whether we will have

drugs in the future, and so on. If you invent a new

test, you may patent it and sell it for as much as you

can, if that's your goal. Companies can certainly own

a test they have invented. But they should not own the

disease itself, or the gene that causes the disease,

or essential underlying facts about the disease. The

distinction is not difficult, even though patent

lawyers attempt to blur it. And even if correlation

patents have been granted, the overwhelming majority

of medical correlations, including those listed above,

are not owned. And shouldn't be.

 

Unfortunately for the public, the Metabolite case is

only one example of a much broader patent problem in

this country. We grant patents at a level of

abstraction that is unwise, and it's gotten us into

trouble in the past. Some years back, doctors were

allowed to patent surgical procedures and sue other

doctors who used their methods without paying a fee. A

blizzard of lawsuits followed. This unhealthy

circumstance was halted in 1996 by the American

Medical Association and Congress, which decided that

doctors couldn't sue other doctors for using patented

surgical procedures. But the beat goes on.

 

Companies have patented their method of hiring, and

real estate agents have patented the way they sell

houses. Lawyers now advise athletes to patent their

sports moves, and screenwriters to patent their movie

plots. (My screenplay for " Jurassic Park " was cited as

a good candidate.)

 

Where does all this lead? It means that if a real

estate agent lists a house for sale, he can be sued

because an existing patent for selling houses includes

item No. 7, " List the house. " It means that Kobe

Bryant may serve as an inspiration but not a model,

because nobody can imitate him without fines. It means

nobody can write a dinosaur story because my patent

includes 257 items covering all aspects of behavior,

like item No. 13, " Dinosaurs attack humans and other

dinosaurs. "

 

Such a situation is idiotic, of course. Yet elements

of it already exist. And unless we begin to turn this

around, there will be worse to come.

 

I wanted to end this essay by telling a story about

how current rulings hurt us, but the patent for

" ending an essay with an anecdote " is owned. So I

thought to end with a quotation from a famous person,

but that strategy is patented, too. I then decided to

end abruptly, but " abrupt ending for dramatic effect "

is also patented. Finally, I decided to pay the " end

with summary " patent fee, since it was the least

expensive.

 

The Supreme Court should rule against Metabolite, and

the Patent Office should begin to reverse its strategy

of patenting strategies. Basic truths of nature can't

be owned.

 

Oh, and by the way: I own the patent for " essay or

letter criticizing a previous publication. " So anyone

who criticizes what I have said here had better pay a

royalty first, or I'll see you in court.

 

Michael Crichton is the author, most recently, of

" State of Fear. "