State of Innovation

Patents and Innovation Economics

Supreme Court Hears Myriad Case: The Myth You Can Patent Human Genes

The Supreme Court is hearing oral arguments in the Association for Molecular Pathology v. Myriad Genetics No. 11-725  case that revolves around the myth that you can patent a person’s genes.  Typical of the idiocy surrounding this case is the article by the AP, which states that this case is about monopolies for human genes.  The author proves not only their lack of understanding of the science, but also the fact that they do not know that patents are a property right.  (For more on Patents, Property Rights and Monopolies see below)  A number of books have also pushed the agenda that human genes are patentable.  The CAFC’s ruling in this case sets the record straight.

 

CAFC ruling under reviewed

The ruling in the 2012 version of this case was very similar to the ruling in 2011 that I discussed in my post Association of Molecular Pathology v. USPTO.  Below I provide what I think are the most interesting excerpts from the opinion.

Composition claims are all eligible under 35 USC 101.

They (The isolated strands of DNA) are obtained in the laboratory and are man-made, theproduct of human ingenuity.  While they are prepared from products of nature, so is every other composition of matter.  All new chemical or biological molecules, whether made by synthesis or decomposition, are made from natural materials.  For example, virtually every medicine utilized by today’s medical practitioners, and every manufactured plastic product, is either synthesized from natural materials (most often petroleum fractions) or derived from natural plant materials.  But, as such, they are different from natural materials, even if they are ultimately derived from them.  The same is true of isolated DNA molecules.  PP. 38-39

The highlight portion points out a general rule of patent law (actually nature) – all inventions are combinations of existing elements, these elements are formed from natural materials.  You cannot create something from nothing – it’s called conservation of matter and energy.  Unfortunately, this simple rule of physics is often ignored by the courts – probably because most of them do not have a scientific background and are therefore unfit to rule in patent cases.

A composition of matter is not a law of nature.  P. 51

The anti-patent crowd has been trying to expand laws of nature to include anything that occurs naturally.  A law of nature is something that explains a host of data and can be used to accurately predict how things will behave in nature, such as gravity.  Using a counterbalance in an elevator uses gravity – a law of nature, but it is not a law of nature.

It is undisputed that Myriad’s claimed isolated DNAs exist in a distinctive chemical form—as distinctive chemical molecules—from DNAs in the human body, i.e., native DNA. P. 44

The critics of patenting human genes miss this point.  The claims do not cover native DNA, they cover DNA that does not exist but for the intervention and ingenuity of humans.

Claims 1 of the ’999, ’001, and ’441 patents, as well as method claims 1 and 2 of the ’857 patent—all of which consist of analyzing and comparing certain DNA sequences—not to be patent-eligible subject matter on the ground that they claim only abstract mental processes.  P. 55

I strongly disagree with this statement.  Myriad clearly showed that the analyzing step requires machines that are clearly described in the specification.  Even if a doctor had the print out of the results of analysis and then he compared the results without a machine, then this is contributory infringement.  The only justification for the CAFC’s decision is hyper technical analysis of the claim that requires a recited machine in the claims.  This sort of overly formal interpretation does nothing to protect the property rights of inventors, but does advance the interests of entities that want to steal other people’s inventions.

We once again, even in light of Mayo, arrive at the same conclusion of patent-eligibility because at the heart of claim 20 is a transformed cell, which is made by man, in contrast to a natural material.

By definition, however, performing operations, even known types of steps, on, or to create, novel,  i.e., transformed subject matter is the stuff of which most process or method invention consists.  All chemical processes, for example, consist of hydrolyzing, hydrogenating, reacting, etc.  In situations where the objects or results of such steps are novel and nonobvious, they should be patent-eligible.  P. 61

The idiots at the Supreme Court have attempted to break claims down and determine if each step is new.  You can’t create something from nothing and a step which is completely new does not meet the requirements of 35 USC 112.  This form of interpretation of the claims was specifically rejected by the 1952 Patent Act under 35 USC 103.  But the anti-patent Justices on the Supreme Court are not interested in logic, the Constitution, or the law.  They are only interested in forcing their policy visions on the American public.

 

Patents and Monopolies

Patents: Monopoly or Property Right a Testable Hypothesis

If patents are a monopoly, as some suggest, then it should led to certain outcomes.  A close examination shows that none of the supposed monopoly effects result from granting patents.

 

Monopoly/Rent Seeking vs. Property Rights/Intellectual Property.

This post explains the characteristics of a monopoly and a property right and poses three questions to show the difference.  Patents fit all the characteristics of a property right and none of a monopoly.  Note that professional license, such as a law license has some of the characteristics of a monopoly.

 

More on the Myth that Patents are Monopolies.

This post contains a number of quotes from philosophers explaining that patents are not monopolies.

 

Property Rights, Possession and Objects 

This post explains the difference in the concepts of property rights, possession, and objects.  Most economists and patent detractors confuse these concepts.  The origin, definition, and legal basis of property right are explained.

 

The Myth That Patents are a Monopoly 

This post compares the definition of a monopoly to the rights obtained with a patent.  It shows that the rights obtained with a patent do not confer a monopoly.

 

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April 15, 2013 - Posted by | -Law, Innovation, News, Patents | , , ,

2 Comments »

  1. The Supreme Court reliance on “analogies” in trying to come to grips with the science of genetics certainly reminds one of the blind men tapping around the elephant and proclaiming; gee it’s just like a snake, like a wall, like a chocolate chip cookie ….:

    http://www.usatoday.com/story/news/nation/2013/04/15/genes-patents-supreme-court-breast-cancer-ovarian/2084335/

    Comment by step back | April 16, 2013 | Reply

  2. Step Back LOL

    Or it would be if it were not so important.

    Comment by dbhalling | April 16, 2013 | Reply


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