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...)