I completely agree with this article. There is a very strange attitude that everything we need comes from business and therefore it should never be constrained from doing whatever it wants to do. Whether that is continuing to be inefficient and carbon intensive or patenting life forms for private profit.

We are told the pay off for us is "better" crops which would not be developed otherwise. With patented genetically modified crops this has not proved the case. One crop scientist said that these crops meant that whereas previously scientists, government and farmers worked together and shared information to deal with pests and diseases now that is all "commercial in confidence". This leads to disaster.

Also it is now estimated that 30% of human genes are now patented. With 2 genes implicated in breast cancer BRCA 1 and 2 patent restrictions means you have to get permission to research them and there is the ability to charge large sums of money for access to them. There has rightly been an outcry about this. However how many people know this is what is happening? The whole issue of patents needs to be reassessed from a public interest, not a private tax (which is the real effect of patents) point of view.

Succinctly put. I agree.
As I have said several times no one corp or cartel should be able to patent the means of nature (genes).
I object to commercial gatekeepers to life. "pay or die" principal.

I disagree with one point only.

"This is not about patenting and IP..."

Absolutely, it is about patenting and IP.

It is thanks to the fundamentally archaic and largely nonsensical patenting laws that these crimes are allowed to be called legal.

We are being led by the nose by the US, that well-known breeding patch for greedy lawyers and mind-blowingly expensive lawsuits, in allowing the definition of an "invention" to be subverted and trivialized in this manner.

The argument should be, quite simply, "you did not invent that".

The justification for that argument being that the gene sequence, by definition, existed prior to the process of naming it.

Logically, this should then fall squarely into the bucket called "prior art", and automatically disallow the patent.

It is utter madness that we allow our government to turn a blind eye to the practice, and its ramifications.

There's not much these days that would get me marching the streets of Canberra with a banner written in my own blood, but this is one that would.

Agree completely with the author and the comments so far. The social implications of gene patenting are serious.

Pericles...in your own blood! You can have some of mine as well. :)

What I find irritating is when people simplify issues to the point of irrelevance and then hold it up as an outrage.

IP law throughout the world has a few simple tenets, you cannot simply patent something that pre exits because you found it first.

What you can patent is the use of that "item" in a new or novel fashion.

Secondly, any patent document has to have a clear description of exactly the application that has been patented.

Thirdly any patent has a limited life span of between 10 and 30 years, after which the technology can be copied or reproduced with no license fees.

For example the GM crop that is "round up ready" employs pre existing genes combined into new plants. In 10 years or so, anyone else can copy this.

The potential benefits from this research is huge, and if there is no protection for the intellectual effort, there is no incentive for the major drug companies to spend the money to do it.

Everyone might bemoan the fact that drug companies had the sole licensing rights for the HIV drugs, what is forgotten is that these companies were the reason these drugs existed in the first place.

While the drug companies and others like Monsanto are vilified, one forgets that we cannot live without their innovation. By an over zealous banning of IP rights on the human genome, one might inadvertently kill the goose that lays the golden eggs.

Shadow Minister (Re: Monsanto et al "we cannot live without their innovation"). This is a nonsense statement. We used to have plant breeding programs in public hands, controlled by government agricultural departments, the result of which were accessible to all. The split decision in the Chakrabarty vs. Diamond case in the U.S supreme court in 1980 (?) spawned the entire biotech industry we have today. Now anything is fair fame for patenting: genes, genomes, mice, pigs, human cell lines, even the human genome.

A moral conflict exists in patenting of life forms for GM crops: On the one hand biotechs have to argue "uniqueness" to get a patent, yet argue "equivelence" to other foods to get regulatory approval - which one is it?

More to the point, biotechs have never created something "de novo" - they merely tinker with an existing natural structure (DNA) that has been part of the intellectual commons of mankind since time immemorial. Their patents implicitly incorporate into private control the very machinery of life - that is, the ability to self-replicate and to self-organise. This is not an invention, but rather hijacks millions of years of natural evolution. It's tantamount to a car manufacturer fitting a new rear-vision mirror and claiming a patent on the internal combusion engine. And even then, the analogy falls way short of displaying the enormity of the social, ethical and moral consequeneces of patents on life forms.

Most patents are so broad in their description that the scope is enourmous. Patents can be taken out on biological techniques that apply broadly to any living system. Monsanto's infamous patent for a pig was intended to extend not only to a particular breed of pig, but to all its progeny - irrespective if the pigs were genetically engineered or not. US biotech company Ricetec tried to take out a patent on basmati rice. Another for the neem tree of India. It was only public outcry that saw these patents rescinded.

With a stroke of a dubious legal pen, the entire natural world has been pressed into the service of private economic interests.

Greg,

With all due respect, these government breeding programs produced fantastic new breeds in the 50s to 70s and enabled a massive increase in production. However, the techniques they use are suffering from diminishing returns, and the advances they have yielded since the 80s are marginal in comparison to the previous decades.

The major advances have nearly all come from private companies.

As far as patents go, anyone can file a patent for anything. (I could file a patent for the internal combustion engine if I so wished) Howver, the crunch comes when trying to enforce it.

A company that tries to enforce a patent on a gene where it has done nothing will fail at the first court case, and many of these patents are simply there to interfere with a competitors future patent using the gene.

So while hundreds of thousands of patents are being filed I would guess that only a handful are enforceable.

The doomsday scenario you are painting is simplistic misunderstanding of the realities on the ground.

I think we may be a little at cross purposes here Shadow Minister.

Patenting an invention is fine.

Patenting raw material, I would suggest, is not.

Some clarification of the boundary can be detected in the current case being fought in the US against Myriad Genetics' patents on BRCA1 and BRCA2, "a pair of genes closely linked to breast and ovarian cancer."

The case against, as stated by the ACLU, goes as follows:

"Allowing patents on genetic material imposes real and severe limits on scientific research, learning and the free flow of information"

Myriad, on the other hand, claims that

"women would not even know they had BRCA gene if it weren’t 'discovered’ under a system that incentivizes patents"

But the real clue comes in the likely remedy:

"If the court rules against Myriad, patents involving genes and other biological products won’t be eliminated altogether. Instead, claims will need to be made on specific types of tests or modifications, rather than the discovery of something that exists in nature"

More detail can be found at http://www.wired.com/wiredscience/2010/02/gene-patent-lawsuit/

There will also continue to be "boundary" issues:

"BRCA1 is on chromosome 17. But long stretches of DNA on chromosome 1 are identical to stretches in the Myriad patent"

http://www.wired.com/wiredscience/2010/02/gene-patent-lawsuit/

But finally, this is also crucial:

>>As far as patents go, anyone can file a patent for anything. (I could file a patent for the internal combustion engine if I so wished) Howver, the crunch comes when trying to enforce it<<

Look at it from the other angle. If you are sued for building a car without a licence, because Microsoft holds the patent (they bought it from Sony, who bought it from Pixar, who bought it from Kohlberg Kravis and Roberts, who bought it from Daimler Benz...), how deep would your pockets need to be, if you claimed the patent was unenforceable?

Shadow Minister you said, "IP law throughout the world has a few simple tenets, you cannot simply patent something that pre exits because you found it first.

What you can patent is the use of that "item" in a new or novel fashion.

Secondly, any patent document has to have a clear description of exactly the application that has been patented.

Thirdly any patent has a limited life span of between 10 and 30 years, after which the technology can be copied or reproduced with no license fees."

That is so true, some years ago I was a consultant for a business that through the use of excellent lawyers, had gotten a patent on a chemical that had been developed almost 100 years earlier. The patent was for a "new" application of the chemical. The new use was for disinfecting animal quarters. The company made millions and well before the patent would have expired, it was sold to Monsanto!

I would like to add that I find it unethical to patent genes even though a new use for the genes has been found.

The problem with patent law isn't just that it is allowed to apply to pre-existing forms it is that the law now allows de facto patents on life. This wasn't supposed to happen and yet it has. A patent on genetically modified canola means that you cannot use the plant, the seeds or any part of the plant without permission or without violating the patent. This means the living organism and the patented material are inextricable - you cannot have control over one without the other. It's also true that Monsanto has become the largest seed company on earth - inserting genes into seeds and limiting access to a common heritage by imposing a patent on it. This trend stinks - and benefits no one. It is certainly not innovation - this is colonisation of the food chain by one of the least ethical, most criminal corporations on the planet.

@Shadow Minister: The major advances have nearly all come from private companies.

Nope. There have been no major advances on the scale of the green revolution.

@Shadow Minister: A company that tries to enforce a patent on a gene where it has done nothing will fail at the first court case

It costs roughly 10 times the amount to challenge one in court as it does to get one. The ratio seems to remain fixed, but the actual costs vary widely (between $200,000 and $2,000,000 to get a patent invalidated) depending on who you ask. As you say we moved to a system of post validation, where patents are granted willy nilly and you are expected get a court to strike down the bad ones. The consequence of that move is that now large companies get themselves a portfolio of 3,000 patents that are in all probability invalid, but are simply impossible to avoid. A startup patents a truly novel idea starts to commercialise it. Big company decides this is a threat, and flings a 100 odd patent violations at the startup. Startup can't afford the $20,000,000 bill to challenge the patents, and caves.

Now, naturally, we have biotech companies getting in on this game and building up huge arsenals patents. You say this is OK, because you can "just challenge them in court". This is rubbish. There are currently 3,000,000 gene patents in the US alone. http://en.wikipedia.org/wiki/Gene_patent Cost to overturn them: $6 trillion.

It is about we returned to justifying patents on a commercial and economic basis, as opposed to some airy fairy legalistic concepts like obviousness and IP rights. The whole idea behind patents was to encourage the commercialisation of new ideas. Note: commercialisation not invention, because most of the money is spent after the first prototype is developed. As a reward for taking the gamble to commercialise it, you get a monopoly for a few decades. That way if you take the risk and it works out, some bastard who didn't invest in taking the risk can't come and cut your profit margin from underneath you.

(cont'd...)

(...cont'd)

But if the justification for awarding patents is to speed the uptake of new ideas you have to be careful, as patents can also stifle innovation. If a lot of other inventors are likely to use the idea in their own inventions, then granting a patent on that idea will stifle the commercialisation of those future ideas. This suppresses innovation rather than promoting it. So in the end the worth of a patent to society goes up with commercialisation costs, but goes rapidly down if it is likely to to be applicable to many products that may be commercialised later. And of course, patents are a complete waste of time the patentee never intended to commercialise it.

Drugs are a stand out example. It costs huge amounts to trial a promising drug and commercialise it. But your patent only covers a single compound, leaving people free to develop slightly different but perhaps better compounds. So by both measures drug patents work well, and indeed everybody agrees they do a splendid job in encouraging the development of new drugs.

At the other end of the scale you have business methods. A classic example would be Amazon's "one click" patent, where Amazon patented the idea of logging in and then using just "one click" to purchase an item using the details they had on file, rather than getting the user to enter them all again. Cost to commercialise this: two fifths of stuff all of nothing. Changes many others might accidentally use this idea in their own web site: 100%. So it fails both tests. Obviously the patent should not have been allowed. Yet not only was it allowed, it was recently upheld. http://canton.elegal.ca/2010/03/11/amazon-1-click-patent-upheld/

(cont'd...)

(...cont'd)

Software patents are another example. Cost to commercialise a new software idea: close to 0, because manufacturing costs nothing. The odds of a particular idea being re-used: experience has shown it to be very high. Worse, it is well neigh impossible to know if you are treading on someone else's patent, as there is no easy way to catalogue software patents. An example is a patent that covered how your cursor is made to flash. Every programmer who comes across this patent is stunned because it is the obvious way to make a cursor flash, and of course every man+dog did it that way. Including those at Commodore-Amiga. Commodore-Amiga were sued over that patent, which they didn't know existed, and it destroyed them. Sadly it also destroyed a real attempt at commercialisation, the new line of computers Commodore-Amiga was attempting to introduce at the time. http://xcssa.org/pipermail/xcssa/2005-February/002587.html

But if there is one thing worse than software patents, it is these dammed gene patents. Cost to commercialisation: irrelevant, as they are granted on isolation, not because they have any commercial benefit. Odds they will block commercialisation of other ideas: very, very high, because an organism contains 1000's of genes. So why have they bothered to patent 3,000,000 genes? Obviously it isn't because they intend to commercialise them, because they don't even try. Rather it is if anybody does find a way to commercialise them, they can sue them and get a cut from someone else's commercialisation efforts. And if they patent enough basic genes, the odds of someone wanting to use them are damed high. Which is a pity, becuase the magic isn't in the gene's themselves. It is how you combine them to create new life forms. The net result of this madness will be to kill the commercialisation of new life forms until these patents die in one way or another.

@Shadow Minister: many of these patents are simply there to interfere with a competitors future patent using the gene.

Yes, exactly. What you apparently don't get is this is a disaster.

Rstuart,

You don't have to get a patent invalidated. You simply ignore it.

If the patent is invalid the "owner" will send you a cease and desist notice, at which point you reply with a notice that the patent is not applicable and that you are prepared to challenge it in court.

If he loses he loses with costs, and gets his patent invalidated. (you need to be sure you are on solid ground though). And if there is no substance the "owner" will simply back off.

I have personal experience, we developed a new chemical process, but because there were similar (but not as efficient processes) we decided not to patent, as by patenting, we would have to effectively publish our process. It was considered simpler to build the plant and keep strict control over the details of the process than allow the competition to simply implement it with our patent and challenge us in court. (patent documents are public property).

While I am not in favour of all these patents being placed, what it does mean is that these companies have a limited time to develop new drugs and therapies based on them. In 30 years all these patents will have expired and will no longer be patentable.

While the GM has not produced the same boost to production that standard varietal breeding did in the 60s, is certainly doing better than the breeding programs now. That the low hanging fruit has been picked does not mean we should stop there. If there was not such a neurotic response to GM, we might be much further along today.

Shadow minister is absolutely right. Getting a patent can destroy your advantage.

I was in the plastics industry. A company I worked for used to throw a little money, & time, up blind alleys. mostly it was a dead loss. Just occasionally they found a pot of gold.

They found a new way of polymerising a plastic material. It was so much better than the existing stuff, it was like the difference between high carbon steel, & cast iron, with lumps of charcoal embedded in it.

While commercialising they thought of patents, & decided that would just give their production technique away, when the patent expired. They went for secrecy instead.

The company thrived, & was taken over a number of times by ever larger corporations. Finally, long after any patent would expired, & become public property, it's latest owner was acquired by it's largest competitor, simply to get their hands on the production technique.

Perhaps you should hope these companies patent their finds.

But that's the whole issue, Shadow Minister, right there.

>>at which point you reply with a notice that the patent is not applicable and that you are prepared to challenge it in court.<<

Maybe you work with an organization that has i) very deep pockets and ii) a legal department with a no-limit budget, but 99% of organizations are unable to take this route.

Let's say I have a small software company, with a turnover of $10m, and a net margin before tax of 10%. And then I get a letter from Microsoft (for example) telling me I have violated one of its patents.

(Microsoft has well over 10,000 patents, by the way. Five thousand of these were granted between March 2006 and February 2009, that's a rate more than four per day. Granted, that is. Not "applied for". Granted.)

In their letter, they politely ask for royalties. Those royalties will instantly render my business unprofitable, and empty my bank account at the same time, since they ask for retrospectivity.

It really doesn't matter whether they have a case or not... has it occurred to you what it will cost, to take Microsoft to court?

Not to mention the time, energy and uncertainty involved, given that they can afford (multiple) very smart lawyers, who can drag the proceedings out for several years if they choose.

Same goes for major pharmaceuticals.

Patents in their current form are anathema to business, and a ball-and-chain on innovation. They were appropriate to the mechanical era, where you could clearly demonstrate how your jump stump plough worked better than the previous version.

But they are now archaic in their concept and in their application.

Today, the patent has become just another commodity to be traded. There is no need even to make it work, so long as it prevents others from doing so without paying royalties.

And there are new concepts to go along with the new environment.

Patent trading

http://www.ipti.co.jp/guide-e.html

And Patent Auctions

http://patenttalk.blogspot.com/2008/07/patent-auction-future-of-ip-trading.html

And Patent farming.

http://perens.com/Articles/PatentFarming.html

It is a system urgently in need of massive overhaul.

Pericles,

Without specifics of the example I cannot comment. Microsoft employs hundreds of very bright people to specifically do blue sky research and to develop techniques for doing things better and faster, all of which are very easy to copy.

So it would depend whether you are using something a process that MS developed or whether it is a frivolous claim. If it is the latter, you simply proceed and tell MS to shove it.

While they have deep pockets, if they lose, they also publically lose any future chance to claim on the patent, as well as all the court costs.

@Shadow Minister: In 30 years all these patents will have expired and will no longer be patentable.

It sounds like you think 30 years is a short time. 30 years ago, there were no PC's, no CD's, no GPS, and no mobile phones. Do you really think holding up GM technology for 30 years is acceptable?

@Shadow Minister / @HasBeen: [trade secrets...]

This looks like legal advice on the best way to navigate through IP law. I have no argument with it, but I don't see what it has to do with patenting genes. They aren't secret as most of them are held in public databases.

More to the importantly, it seems to miss the point both I and the article were making. That point wasn't about whether patents are good or bad. I think everyone here agrees that in some situations patents are definitely good, as in they can accelerate the pace of innovation. The point is that genes isn't one of those areas. I don't see that you have attempted to address that point anywhere. The closest we get it "patents have worked well for me". That is like someone saying "my hammer works perfectly well on my nails, so it should well work for you and your screw too".

It also appears I didn't make the implications of my suggested rules for evaluating what ideas should and should not be patented. As I said, for genes the cost of commercialisation is low, and the odds of a patent on a gene obstructing commercialisation of another product is high. low-high is bad, so patents on genes should not be allowed. But that same equation does not apply to entire organisms, such as a GM wheat variety. The cost of commercialising a new GM plant variety is very high. But that does not prevent any number of other GM varieties of wheat from being developed, so potential overlap is low. high-low is good, so we should allow patenting of entire organisms. Yet it seems you think I would oppose it.

(cont'd...)

(...cont'd)

@Shadow Minister: You don't have to get a patent invalidated. You simply ignore it.

This seems to be addressing a separate discussion, which is about how patent law and its implementation is evolving. I'll risk putting words in Pericles mouth and say neither of us are discussing patent law here in Australia. That only patent law that matters is in the US. Over time we will be forced to follow in their footsteps.

The second point is once upon a time, long, long ago, patent law seemed to work much better than now. In that era the US Patent and Trademark Office (USPTO), which was staffed mostly by engineers and scientists, decided the validity of patents. They were funded by taxes, but funding didn't grow to match the volume of patent applications and so granting of patents began to take an inordinately long time. Rather than increase funding, citing "get out of the way of innovation" the pollies directed the USPTO to stop spending so much time evaluating patents. Naturally standards dropped, and the word got around that patents were easier to get. This lead to an increase in the number of patent applications, which meant the USPTO could spend even less time on each patent, which meant standards dropped further ... it was a vicious cycle.

I am sure the pollies didn't have a clue what the end result their actions would be, but clearly it was to transfer the testing of patent from the start of application, where it was done by the USPTO, to the end, where it was done in the courts.

This was a major mistake. The judges could not make head nor tail of what the word "obvious" meant http://www.businessweek.com/magazine/content/06_02/b3966086.htm , and in fact have show precious little indication of understanding why we have a patent system at all.
(cont'd...)

(...cont'd)
The result was not just doing away with the obviousness test, but also allowing patents on things that could never be patented during the USPTO reign, such as business methods http://en.wikipedia.org/wiki/Business_method_patent#United_States , software and now god help us genes.

Your response above to this is seems to be "so what, just ignore the patent and use legal remedies". It shows to me you don't have a clue how much this costs us as a society. By some weird coincidence this expansion of the patent system by lawyers and their cousins seems have benefited no one but ... lawyers and their cousins. It has created a legal niche for what could only be called commercial parasites feeding on the revenue stream generated by very people the patent system is supposed to be helping - those trying to commercialise new ideas.

Take the case of Jerome H. Lemelson. He accumulated some 600 patents, and earned $1.6 billion from them. http://arstechnica.com/tech-policy/news/2008/02/patent-examiners-voice-opposition-to-patent-reform-act.ars He didn't invent or commercialise a thing, as he bought all those patents. He didn't produce a single useful product. Yet one man managed to leach $1.6 billion from those who were trying to do those things.

One man. $1.6 billion.

Let those numbers sink in. And now he has inspired a whole army of Jerome H. Lemelson aspirants to follow in his footsteps, such as NTP for example. The managed touch RIM for $615 million for patents that were about to be declared invalid! http://money.cnn.com/2006/03/03/technology/rimm_ntp/ I wonder if find that example inspiring or disgusting, Shadow?

As you can see from the ars link, these leaches are now fighting tooth and nail to keep patent reform from eliminating features of the system that allow them to latch onto their victims. Features like submarine patents.

We need to return to a system where the work of engineers and scientists is evaluated by other engineers and scientists. They did a reasonable job of it before, and would probably do so again. The lawyers and the law need to get out of the way, and let the innovators innovate.