State of Innovation

Patents and Innovation Economics

Supreme Court Agrees to Hear so Called “Gene Patenting Case”: Myriad’s Stock Falls 9%

The Supreme Court agreed to review the case Association for Molecular Pathology (AMP) and ACLU v. USPTO and Myriad Genetics (Fed. Cir. 2012).  Myriad holds a patent for identifying certain mutations in the BRCA genes that correlate with an increased risk of breast and ovarian cancer.  Myriad’s stock dropped nine percent on the news.  This is the market’s way of saying they don’t believe the Supreme Court will uphold Myriad’s property rights.  The Supreme Court has displayed a shocking lack of understand of patents and property rights.  For instance, their decision in Mayo Collaborative Services v. Prometheus Labs., Inc. (Supreme Court 2012)  if followed logical would hold that only magic is patentable.  If I were handicapping this I would say there is a 75% chance that the Court will hold all the claims do not meet the requirements on 35 USC 101 (Patentable subject matter).  This will be devastating to the biotech industry, probably wiping out billions of dollars of value in a single day.

This case revolves around the myth that you can patent a person’s genes.  A number of books have been published on this theme and I have explained why this is nonsense in my post Patenting Life.  The CAFC’s most recent decision discussed below also explains why this is not true.

The only issue involved in the Myriad case is whether the claims are patent eligible under 35 USC 101.  In the Mayo case the Supreme Court mixed the concepts of 35 USC 101 (patent eligibility) with novelty (35 USC 102) and nonobviousness (35 USC 103).  No doubt we will see more of this confused statutory interpretation by the Court in this case.  The only minor justification for this confusion is that 35 USC 101 states the invention must be NEW and useful.  However, 35 USC 102 clearly defines novelty (new) in detail and any invention that meets the requirement of 35 USC 102 should be considered NEW under 35 USC 101.  This is something that should have been fixed in the America Invents Act that was just passed in 2011, but the drafters were too busy passing out goodies to Wall Street, pharmaceutical companies and large companies generally to actually worry about improving the clarity of statute.


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, the product 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.

We hold that claim 20 of the ’282 patent recites patent-eligible subject matter under § 101.



The Supreme Court is incompetent to hear patent cases and their jurisdiction over them should be removed by Congress.


December 1, 2012 Posted by | -Law, -Legal, Innovation, News, Patents | , , , , , | 1 Comment

Financial Regulation Does Not Work

In an article entitled “Sheila Bair: Two Years After Dodd-Frank, Why Isn’t Anything Fixed? , it points out that the LIBOR scandal, the MF Global’s bankruptcy, JP Morgan Chase’s “London Whale” and his trading losses, Barclays’ rate fixing, Peregrine Financial’s fraud have all happened despite the 2,319 page Dodd Frank Act has not stopped.  A decade earlier we passed Sarbanes Oxley, which according to its sponsors was going to stop financial fraud, increase investor confidence in the market and in the accounting statements of public companies, and lower the cost to raise capital.  But SOX did not accomplish any of this.  It did not stop Lehman Brothers, AIG or any of the other financial problems uncovered in the 2008 meltdown.  Even more ironic is that no one has gone to jail from these scandals, despite the CEO and others executive officers having to swear that their financial statements were accurate.  So what is Ms. Bair, the 19th Chairman of the FDIC, solution – MORE REGULATION.  Has Ms. Bair ever heard of the definition of insanity?

Ms. Bair argues that this proves that markets are not “self correcting.”  But she fails to note that the US Government always bails out big Banks and Wall Street.  Since the crisis of 2008, we have bailed on the banks with TARP, with zero interest rate loans from the Federal Reserve, and with QE1-3.  Pat Choate has shown that we bailed on banks and Wall Street at least eight times in the thirty years before that.  The markets are not self correcting because the Government does not allow them to work.  The Federal Reserve is nothing more than a Bank bailout protection mechanism.  Wall Street got special provisions in the America Invents Act to exempt them from competition from innovative startups.  Wall Street is acting rationally, because it knows there are no consequences to for failure, but huge upsides if they succeed.  That is not how the MARKET works Ms. BAIR – but it is how government works.

Every academic study has shown that Financial Regulation fails to achieve its goals and in fact hurts investors.  For instance, see Liu, Tung, Santoni, Gary J., Stone, Courtenay C., Federal Securities Regulations and Stock Market Returns. This paper surveys several papers that all show securities regulation has been a failure.  Here are some of the effects of SOX.  In 1996 60% of worldwide IPOs went public in theUS.  In 2005 only 20% of worldwide IPOs were in theUS.  TheUS is the only major country to have fewer public companies today than a decade ago.  There has been more than a 90% decline in the number of IPOs.  This particularly hurts the technology startup market.  It costs around $3 Million a year to comply with SOX as a publicly traded company.

What financial regulation does is increases the cost of obtaining funding for startup and eliminates competition among financial companies.

July 20, 2012 Posted by | -Economics, -Legal, Innovation, News, Regulation | , , , , , , , , | Leave a comment

TECHCRUNCH’s Attack on Ron Paul Reveals it’s Collectivist Ideology

TechCrunch ran a story entitled Ron Paul’s Anti-Net Neutrality ‘Internet Freedom’ Campaign Distorts Liberty.  The article attempts to use John Locke to support their position for Net Neutrality.  It argues that the Internet is a Common Resource and therefore we need government to regulate it use.  The article distorts Locke’s teachings to reach the absurd conclusion that government coercion is freedom.  The way Locke and the free market manage a Common Resource is by provided property rights to those who improve the common resource.  The cable, telephone line, wireless connection that you use to connect to the Internet is not a Common Resource.  All connections to the Internet are improvements of a Common Resource and therefore the property of those who made the improvements.  There is no justification for government to steal the property of Internet providers – even for TechCrunch’s ‘GREATER GOOD’ schemes.

TechCrunch’s Orwellian argument that government coercion equals liberty is sadly consistent with its collectivist ideology.  TechCrunch has never met a property right it likes.  Usually its collectivist ideology is focused on stealing inventor’s property rights in their inventions – patents.  If you search for “TechCruch Patent Trolls” you will find numerous articles including “The Terrible Cost of Patents.”  Patents are a classic Lockean property right.  The inventor created something that did not exist before they created it, so they are the owner.  In the case of inventors, they created not an individual object (reproduction) but a new class of objects – an invention.

TechCrunch distorts the teachings of John Locke to support their collectivist ideology.  This is a common technique because the only way for statist to get people to support their collectivist goals is to hide them, which is exactly what Ron Paul said in his statement.  “They are masters at hijacking the language of freedom and liberty to disingenuously push for more centralized control.”


TechCrunch Ron Paul’s Anti-Net Neutrality ‘Internet Freedom’ Campaign Distorts Liberty

July 7, 2012 Posted by | -Economics, -Legal, Innovation, News | , , | Leave a comment

Book Review: It Is Dangerous to Be Right When the Government Is Wrong: The Case for Personal Freedom

It Is Dangerous to Be Right When the Government Is Wrong: The Case for Personal Freedom, by Andrew P. Napolitano

Judge Napolitano has written an excellent book on Natural Law from the perspective of an attorney.  He attacks legal Positivists, who believe the law is whatever the government says it is.  He points out the moral bankruptcy of Positivists by pointing out that they have no logical basis to be against Hitler’s final solution of wiping out all Jews – since it was a validly passed law.  He also rejects the non-sense of “majority rule” or Democracy.

He explains that Natural Law is like science.  He states:

Only man-made theories for what those rules are and how the operate may change.

However, without an explanation or understanding, those rules remain just as “true”: Penicillin will combat certain infections, and gravity will always pull things toward the center of the Earth, regardless of whether or not we understand how.

He also states something that will not sit well with conservatives:

Truisms reject moral relativism, and American Exceptionalism.  They compel and understanding of the laws of nature that animate and regulate all human beings at all times, in all places, and under all circumstances.  And truisms equal freedom.

The book starts off with the Declaration of Independents.  It moves onto eminent domain issues where the judge has a number of illuminating points.  I particularly liked the freedom of association chapter.  Napolitano I think is one of the few people to write about this issue.  I also found the right to petition chapter illuminating.  I believe that only someone with Judge Napolitano’s legal background could have done this chapter justice.  His chapter on the growth of the Defense Industry was illuminating.  While I did not agree with all his points, he makes it clear that the Defense Industry has grown completely out of control.  According to the Judge the US military is in over 130 countries.  The quote from Fredrick the Great comes to mind “in trying to defend everything he defended nothing.”  The US military has become just another welfare/crony capitalism project.  The military will complain that defense spending as a percentage of GDP is less than it was during the Korean War.  However, we did not have the Department of Homeland Security, the Department of Energy, the Border Patrol, etc, which are all really part of our defense spending at the time of the Korean War.

Unfortunately, the book is marred by two problems.  I am in complete agreement with the Judge’s emphasis on Natural Law, but he defines it in terms of “essential yearnings.”  Someone might have an essential yearning to torture people or kill them.  That does not make it a natural right.  It is enough to state that people have ownership of their body.  The rest of Natural Law and Natural Rights flows from this simple concept.  Once I own myself, I clearly own the product of my labor which leads to all of property law, including patents.  Criminal law comes from violating my rights in my body or in my property.  The “essential yearnings” adds nothing to the concept of Natural Law and Natural Rights.

The second problem with the book is Judge Napolitano’s analysis of fractional reserve banking.  The Judge and some Austrian economists incorrectly state that fractional reserve banking allows banks to create money out of nothing.  A fractional reserve bank is a bank that lends out part of its depositors money.  Fractional reserve banking is how all modern banks (since at least 1750s) operate.  Wikipedia defines a Fractional-reserve banking as a type of banking whereby the bank does not retain all of a customer’s deposits within the bank. Funds received by the bank are generally on-loan to other customers. This means that available funds (called bank reserves) are only a fraction (called the reserve ratio) of the quantity of deposits at the bank. As most bank deposits are treated as money in their own right, fractional reserve banking increases the money supply, and banks are said to create money.

The history of fractional reserve banking starts with the concept of an exchange bank.  I explain in my book, The Decline and Fall of the America Entrepreneur: How Little Known Laws and Regulations are Killing Innovation:

Modern banking started in the early 1600s with the Bank of Amsterdam.  Merchants could deposit coins with the Bank of Amsterdam and use this account to pay for transactions.  Using checks, a merchant’s account was debited and another merchant’s account was credited.  This meant that coins did not have to be transported from one merchant to another with the attendant risk of theft and loss or the cost of transportation.  The Bank of Amsterdam was just an exchange bank that facilitated transactions between merchants.  Next came the Swedish Riksbank established in 1656.  The Riksbank was not only an exchange bank, it also lent money making it the first modern fractional reserve bank.  Fractional reserve banking is the banking practice in which banks keep only a fraction of their deposits in reserve (as cash and other highly liquid assets) and lend out the remainder, while maintaining the simultaneous obligation to redeem all these deposits upon demand.  Commonly, loans are made against collateral such as land or jewelry.  … Some people believe fractional reserve banking creates money out of thin air, but what really happens was the money for these loans were backed by some collateral other than coins or bullion.  The downside of other types of collateral is they are not as liquid as species (coins, bullion).  As a result, if large numbers of customers of a fractional reserve bank wanted species (currency) at the same time, the bank would not able to fulfill all its customer’s demands.  This is a classic run on a bank.  A run on a bank is a cash flow issue.  A sound bank may have plenty of collateral and performing loans, but if most of its customers demand species at the same time it will not be able to fulfill these requests.  Fractional reserve banks free up capital from low performing assets so that they can be invested in higher performing assets.  For example, if you owned a large tract of ranching land that was not highly profitable but represented a large amount of capital and you want to invest in an oil well, without fractional reserve banking you would have to sell some of the land in order to invest.  With fractional reserve banking you could convert your land into a generally accepted form of money, by pledging your land as collateral to a bank for a loan.  In the modern world, the loan to you is just a computer entry in your bank account.

It is clear from history that fractional reserve banks are not some sort of government institution, like the Federal Reserve.  Without fractional reserve banking it is would be very difficult to securitize (Collateralize) many assets, such as houses and land.  This would significantly impede the economic growth of a country.  Logically if you are against fractional reserve banking you should be against a stock market.  Both are just a way of securitizing assets.  The stock of paper money act as a claim against various assets and/or future earnings.


January 14, 2012 Posted by | -Economics, -History, -Legal | , , , , | Leave a comment

Repeal of Financial Reform?

Michele Bachmann has introduced a bill repeal the massive and widely criticized Dodd-Frank financial (see Newsmax story and Stillwater Gazette story).  This is a good first step, but she should have also included the repeal of Sarbanes Oxley.  Ms. Bachmann has correctly criticized SOX as ineffective and overly expensive.

When Sarbanes Oxley was passed, the SEC (Securities and Exchange Commission) estimated the cost of compliance would be $91,000.00 per year for each public company.  The most recent estimates for the cost of compliance are between $4.0 million and $5.0 million per year for publicly traded companies.  This clearly has an affect on the number of IPOs.

Is the cost of this law worth its incredible price? Has Sarbanes Oxley achieved its goal of protecting investors from fraud?  Sarbanes Oxley has cost the U.S. economy at least $400 billion since it passage.  This is just the direct costs and does not include the opportunity costs, which are most likely substantially higher.  The stock market has been flat or declining since its passage.  As a result, it is hard to argue that this legislation increased shareholder value.  The banking scandals of 2008 & 2009 that included Bear Sterns, Lehman Brothers, American International Group (AIG), Merrill Lynch, and the Bernie Madoff fraud make it impossible to suggest that Sarbanes Oxley has protected investors from fraud.


January 11, 2011 Posted by | -Economics, -Legal, Innovation | , , , | Leave a comment

Net Neutrality: Requiem for the Internet

It is a sad day for innovation and freedom.  For more information on why see Does Net Neutrality Inhibit Innovation.  The FCC decided to enact a set of rules called Net Neutrality, which gives the FCC broad regulatory powers over the internet.  These rules are really an assault on property rights and a clear violation of the Fifth Amendment, which states “nor shall private property be taken for public use, without just compensation.”  Regulating the use of private property is a taking of some part of the owner’s property rights.  Property rights are a bundle of rights that define a relationship between something and the owner.  When the government takes, limits or modifies one of these rights it is a taking.

An ironic result about these rules is that the liberal left that pushed these socialist rules is unhappy with them.  They feel that the rules did not go far enough and that the regulatory process was captured by large companies.  Gee, that’s surprising.  Just look at how large Wall Street banks have used financial regulation to get rid of competition.  The large railroads did the same thing years ago.

Another ironic angle of these rules is that no consumer has come forward to complain about the way the internet works today.  A couple of very large technology companies have complained about issues of access.  They are part of the socialist groups that want to take someone else’s property without paying for it.  This is ultimately a fight between large companies that want to use the government to game the system in their favor.

A sad result of these rules is the useful idiots who believed that by supporting Net Neutrality they were supporting freedom and instead were supporting repression.  The FCC is out of control.  This is another assault by the FCC on free speech.  The FCC should be abolished.


December 21, 2010 Posted by | -Economics, -Legal, Innovation | , , , , | Leave a comment

Grant Thorton on the IPO Crisis

Grant Thornton has prepare a paper entitled Market Structure is Causing the IPO Crisis .  Here is my understanding oftheir position.  The IPO market, especially for small IPOs started to decline before Sarbanes Oxley.  The Manning Rule and Order Handling Rule and decimalization decreased the margin for handling illiquid securities by brokerage houses.  Finally, online brokerage accounts have killed quality research and encouraged speculation.

The things that effect the IPO market are the cost of going public, the return for going public, the alternatives to going public, and the willingness of an investment bank to take you public (might be part of the cost).  While not stated explicitly in the report, they seem to imply that there is little incentive for investment banks to take small companies public or to create a market in their securities after the fact.  If true, I think this would contribute to the IPO downturn, but I do not think they have stated their case very strongly. Continue reading

January 22, 2010 Posted by | -Economics, -Legal, Innovation, Uncategorized | , , , , | Leave a comment

Sarbox Update

According to the NYtimes the House Financial Services Committee approved an amendment to Sarbanes Oxley (Sarbox) that would allow some companies to be exempt from this legislation.  While the article implies that many companies would not be exempt under this amendment, the amendment only applies to companies worth less than $75 million and asks for a study of whether companies worth less than $250 million should be exempt.

Sarbanes Oxley has severely damaged the technology start-up market and the financial industry in the U.S.  Sarbox is very expensive: including enormous direct and indirect costs to our economy and to innovation.  It has not met its goals of improving the quality of auditing or preventing fraud.  The effects of this law include fewer public companies, fewer companies going public, more companies choosing to go public in foreign markets, absurdly high auditing expenses and a significant decrease in risk capital.

For More information see Sarbanes Oxley – Is the Medicine Worse Than the Disease – 1 and Sarbanes Oxley – Is the Medicine Worse Than the Disease – 2 .

November 6, 2009 Posted by | -Economics, -Legal, Innovation | , , | Leave a comment