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The Forum > Article Comments > Welcome to the greatest sale on Earth: the gene pool > Comments

Welcome to the greatest sale on Earth: the gene pool : Comments

By Julian Cribb, published 17/3/2010

Around the world thousands of genes, from humans, plants, animals are quietly being patented by a handful of wealthy corporates.

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(...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.
Posted by rstuart, Wednesday, 17 March 2010 6:19:55 PM
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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.
Posted by Shadow Minister, Thursday, 18 March 2010 9:43:56 AM
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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.
Posted by Hasbeen, Thursday, 18 March 2010 12:41:21 PM
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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.
Posted by Pericles, Thursday, 18 March 2010 12:54:09 PM
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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.
Posted by Shadow Minister, Friday, 19 March 2010 11:01:37 AM
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@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...)
Posted by rstuart, Friday, 19 March 2010 3:17:22 PM
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