Controversial U.S. bill would lift Supreme Court ban on patenting human genes

"But then why would those companies finance the research to identify and understand genes ???"

Yes, the answer to that takes about 10 seconds (less if you're aware of the concept of gene therapy), but that's mostly all they have to go from.

The argument for is that another monopolistic Monsanto is potentially created with sufficient coffers to keep politicians who support this bill in a lot of money for a long time.

Profit. Pharma and biotech corporations fund political campaigns, and in exchange they want laws that allow them to extract more profit. That's pretty much how the political process works.

The rest, then, is the standard argument for patents and copyright: it takes money and time to investigate this and create a product that is useful. That investment makes no sense if the product can easily be reverse engineered on day one. Even if you could protect the knowledge through some sort of obfuscation, the public is better served by granting you a patent, because the latter is time-limited and the forced publication of your knowledge helps to build on and critically assess the product you are selling.

I generally don’t quite get the distinction b/w “invention” and “discovery”. I guess the idea is there is a limited amount of knowledge to “discover”, but inventions are theoretically unlimited? I’d love to hear from someone who is pro-patent for one category but not the other, preferably with real examples and not “what if you patent gravity?”

The bill replaces that with a “product of human intervention” test: https://www.jdsupra.com/legalnews/legislators-propose-patent.... The end goal is similar, but in theory it’s easier to define what inventions are the product of human intervention, versus ones that are naturally occurring.

More discussion here: https://www.jdsupra.com/legalnews/legislators-propose-patent...

Incentive - I'm not sure why you dismiss this, as it is an important part of the justification for intellectual property laws in general. Lincoln said "The patent system added the fuel of interest to the fire of genius," a quote that is carved into the stone of the Dept. of Commerce building in DC.

Constitution - Article 1 Section 8 says "To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." Identifying a gene and its function would seem to qualify as a discovery.

Social - A key feature of patents that is often overlooked is that they are public records. The idea of a patent is not just to secure a temporary monopoly, but to use that temporary monopoly as compensation for public disclosure of a trade secret. The patent expires and then the idea is public knowledge and free to use. This is in contrast to ideas and information that might be kept secret and never divulged to the public.

Philosophical - Is math discovered or invented? There is not universal agreement on this. Likewise, what about something like a vaccine, which is simply a special preparation of naturally occurring materials that trigger your naturally occurring immune system? Which part was invented, and which part discovered? Ultimately it's arguable that humans are naturally occurring phenomena, and all of our works are simply re-arrangements of materials and energies that are themselves naturally occurring. If the distinction between discovering and inventing is up for debate, it follows that related laws are too.

I don't actually believe that genes should be patentable, but I do believe in being able to articulate opposing arguments for consideration.

They have nothing to do with China.

but this would mean we'd have to actually produce things again..

Gene work prior to life; yet another term with much debate; is not the real issue, it is what happens to the life that comes of it. What are the rights we will apply to a person or animal that was modified by gene edits? Animals are pretty much a wash as society only distinguishes between pets and livestock within certain societies.

So how do we address people born of this work? Are groups going to demand that certain work is never done? Just look at current news around the world for some points of contention. People are always point towards issues which they assume cannot be disputed, deadly birth defects or handicaps that prevent a self fulfilling life. However what if, provided it can be done, if groups decide to limit the number of births of one sex? Or say, should it ever be provable, if homosexuality is genetic, would we disallow removing the combination? A dictatorship that decides to create a modified race of brain addled fighting men?

Then consider all the effects on competitive areas, from sports to education. Would engineered humans be afforded the same consideration or locked out?

If the court is interpreting a law passed by the legislature, the legislature is free to change the law. In effect, they would be saying "no, you misunderstood us--the law should be interpreted this way and we're revising it so that's clearer." Sometimes the bill drafters are very explicit about this, including a statement in the preamble to the bill or in the legislative history that the bill is being drafted for the specific purpose of overriding X decision.

(Tracking this is challenging--see this article for a good discussion https://www.repository.law.indiana.edu/cgi/viewcontent.cgi?a...)

On the other hand, if a court finds that a law is unconstitutional, that means that the legislature does not have the authority to pass the law to begin with. A constitutional limitation can't be overridden by statute.

In this case, the Patent Act is a law passed by Congress and can be changed by Congress within the limits of its constitutional authority.

In these cases, though, (and I'm not a lawyer!) the existing decisions are on weaker grouns. The court held that nothing in the constitution or the legal charter of the USPTO gave it the power to allow protection for things like gene, software or business method patents. So trying to regulate them was beyond the powers granted to the government by itself.

So you fix that by writing a law spelling out more clearly what the USPTO is allowed to do.

The actual language in the constitution itself is very broad: "To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries". It's extremely hard to read a ban on gene patents in that, IMHO.

You are probably thinking of cases where the Supreme Court has found laws to be unconstitutional. In that case, the legislature has two options: change the law so it's constitutional (might not be possible if the fundamental aspects of the law was to found to be unconstitutional), or change the constitution to accommodate the law (hard because it requires a supermajority of state legislatures to pass it). Both options are available to the legislature and once either is done then the Supreme Court ruling is either no longer applicable (if the law was changed) or possibly completely invalidated (if the constitution was amended).

That means Congress can always just change the law.

The Supreme Court didn't say "gene patents are unconstitutional" they said "patents under this x,y,z regulation don't fit x,y,z part of the constitution being argued, we agree/disagree with the lower court". So Congress changes x,y,z regulation with a,b,c law to provide clarity, and it may create the same outcome as before, amongst other outcomes.

When they rule on a matter of statutory interpretation, the bits of federal common law that still exist today, or other federal grounds for a decision that aren't about the Constitution, an Act of Congress is plenty sufficient to change that by eliminating or modifying the basis for the decision.

We detached this subthread from https://news.ycombinator.com/item?id=20104483 and marked it off-topic.