ACLU sues over patents on breast cancer genes
cnn.com
cnn.com
If you zoom out, though, and consider why patents exist in the first place, the idea that a research institution deserves to profit from the fruits of their research money is not that absurd. I think the question is not whether patents should be issued for biotechnology research, but instead what the best method is to protect investment in biotechnology research while not retarding future work.
Also, on a side note, patents may be infringed upon for research purposes. This is not holding back research, it is only slowing commercialized tests (or maybe just increasing their cost). There is nothing to suggest that the licensing terms offered by the patentee are exorbitant... The patentee is merely trying to recoup some of their investment in the commercialized result of their research.
How does that not hold back research, or merely "slow down" testing?
Researchers in many cases do not need to request permission if the research is focused on a new drug:
It is not about profit, but rather about overall progress and benefits for society at large. I think there's a good argument to be made that the current system now falls short of this goal and new rules are required.
...and the way that they promote the progress of science and technology is to put a PROFIT MOTIVE in place, so that folks have more effective reasons than pure altruism to engage in research.
Yeah, YOU might dedicate your career to finding important genes, instead of launching a software startup, because you care that much about other people.
...but what VC is going to pay for your lab and staff if he can't make a profit off of it?
Bottom line: intellectual property is a government created kind of property, but it aligns incentives, and results in the progress of both science and technology.
Plenty would, but you would have to use the more traditional method of patenting called "never releasing your research".
Patents are for inventions. Patenting genes is like patenting Pythagoras' Theorem, and then arguing that everyone who uses that theorem must be licensed. Or like if whoever determined that oxygen has 6 protons then patented it and argued that everyone else must pay a license fee to breathe.
If you take the argument to its logical conclusion, you should realize that it's absurd.
I think that the weakness in the gene patents is that a patent is necessarily an invention to accomplish a particular purpose but the pharma companies are filing patents as quickly as the genes can be identified, without the slightest idea of that it does, let alone what it can be used for.
My understanding is that the fig leaf that they hide behind is to simply say "it's for fighting cancer", but they have no idea if that's what it would eventually be used for. And the patent office makes no judgment about how effective a patent actually is for its stated purpose.
So here's my idea. It needs to get some specificity, but basically we should say that a patent must include a specific statement of what the invention's use is. And the patent would only protect that stated usage; creating another thing that's composed of exactly the same pieces as the patent mentions, but used for a different purpose, would be OK.
If they use the gene in a process, then that process is an invention and I have no problem with them patenting that invention. But just patenting the gene IS like patenting lemons.
That is, the use of BRCA1 for a particular cancer treatment could be patented. But BRCA1 itself is (under my proposal) still fair game, both on its own as well as in other treatments that differ sufficiently from the patented one.
As you say, lemons should always be fair game. I can patent its combination with metal strips as a battery; that still leaves you free to patent an alternate use, e.g., as a cleaning agent.
What I was trying (poorly, it would seem) to get at was that the fact that we can observe an example of a mechanism or process in nature should not make something unpatentable. Seeing a stick balanced across a stone might give a caveman the idea for inventing the lever; the fact that nature prompted that invention doesn't invalidate it, I don't thing (although there might be questions about obviousness).