Okay, I understand the arguments against this bill and can sum them up easily; patents are meant for inventions whereas these are discoveries. Genes and their properties exist in nature and the discoverers stumbled on to them through some variant of effort and random chance.
Logically, if they exist by default and we are making observations about them, then how do we get to patent/own the very idea of them? An absurd parallel would be Charles Darwin patenting a giant tortoise - an entity that exists in nature - upon his discovery and requiring a license fee each time a natural history museum displayed one.
But that's one side of the story; what's the argument for the bill? Is there a logical reason why the patent system should be expanded to include entities you observe in nature?
I am sure the above can be formulated with more precision and panache, but as far as I can tell, I'm not sure what the equivalent set of ideas are for the people arguing for this bill. The best that I can come up with is an appeal to utility (i.e. it would incentivize X, Y or Z). However that's not a strong enough argument - what's the "steel man" that's missing from this conversation?
The argument for the bill is that corporations want to be able to monopolise human genes they discovered so only they are allowed to sell treatments and other products and services related to those genes.
Profit. Pharma and biotech corporations fund political campaigns, and in exchange they want laws that allow them to extract more profit. That's pretty much how the political process works.
There doesn't appear to be an intellectual underpinning in support of the bill. What does exist are the usual platitudes about promoting "innovation". I'm surprised that the "threat from China" hasn't been invoked yet by the various bill promoters though I expect that in the days and months to come it will be.
The bill isn’t aimed at gene patents specifically. It’s a decision to section 101, which implicates a wide variety of judicially creates exceptions to patent eligibility, such as abstract ideas and laws of nature. The Supreme Court has created those exceptions, but refused to define them. That has resulted in unpredictability, as patents are found valid or not based on often philosophical discussions on what constitutes an “abstract idea.”
The bill replaces that with a “product of human intervention” test: https://www.jdsupra.com/legalnews/legislators-propose-patent.... The end goal is similar, but in theory it’s easier to define what inventions are the product of human intervention, versus ones that are naturally occurring.
The reason you're confused is because these articles are oversimplified and these patents aren't literally gene patents or patents of the genetic sequences themselves. I believe the so-called "gene patents" are "composition of matter" patents just like the original aspirin patent. I expanded on this more in a top level comment, but nobody (including this bill and the original gene patents) is calling for simply patenting entities that exist in nature. It's uncontroversial that this cannot be done.
My attempt: A “gene patent” isn’t about protecting a specific sequence of DNA, but about using that knowledge, and how the gene products act and interact, for a specific purpose. Example: the knowledge that certain genes are linked to cancer used to make a predictive test.
The rest, then, is the standard argument for patents and copyright: it takes money and time to investigate this and create a product that is useful. That investment makes no sense if the product can easily be reverse engineered on day one. Even if you could protect the knowledge through some sort of obfuscation, the public is better served by granting you a patent, because the latter is time-limited and the forced publication of your knowledge helps to build on and critically assess the product you are selling.
I generally don’t quite get the distinction b/w “invention” and “discovery”. I guess the idea is there is a limited amount of knowledge to “discover”, but inventions are theoretically unlimited? I’d love to hear from someone who is pro-patent for one category but not the other, preferably with real examples and not “what if you patent gravity?”
I think this bill is more about how we decide what can be patented, i.e, do we even look at whether the subject matter is new, useful, and non-obvious, or do we just say it's in a category that we won't allow people to patent their creation, like short stories, business innovations, and screenplays. As I read the bill, under the Darwin tortoise hypo, he still wouldn't be able to patent b/c the tortoise wouldn't be novel, as it existed in the form presented in nature before. But if Darwin genetically engineered a tortoise that can fly, he possibly could patent the innovation.
The argument for is that another monopolistic Monsanto is potentially created with sufficient coffers to keep politicians who support this bill in a lot of money for a long time.
> I am sure the above can be formulated with more precision and panache, but as far as I can tell, I'm not sure what the equivalent set of ideas are for the people arguing for this bill.
"But then why would those companies finance the research to identify and understand genes ???"
Yes, the answer to that takes about 10 seconds (less if you're aware of the concept of gene therapy), but that's mostly all they have to go from.
I wonder if one could make the argument that genes are more akin to a "Library of Babel" (https://en.m.wikipedia.org/wiki/The_Library_of_Babel). That is, the space of genes is so complicated and vast that the line between discovery and invention gets blurred.
Incentive - I'm not sure why you dismiss this, as it is an important part of the justification for intellectual property laws in general. Lincoln said "The patent system added the fuel of interest to the fire of genius," a quote that is carved into the stone of the Dept. of Commerce building in DC.
Constitution - Article 1 Section 8 says "To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." Identifying a gene and its function would seem to qualify as a discovery.
Social - A key feature of patents that is often overlooked is that they are public records. The idea of a patent is not just to secure a temporary monopoly, but to use that temporary monopoly as compensation for public disclosure of a trade secret. The patent expires and then the idea is public knowledge and free to use. This is in contrast to ideas and information that might be kept secret and never divulged to the public.
Philosophical - Is math discovered or invented? There is not universal agreement on this. Likewise, what about something like a vaccine, which is simply a special preparation of naturally occurring materials that trigger your naturally occurring immune system? Which part was invented, and which part discovered? Ultimately it's arguable that humans are naturally occurring phenomena, and all of our works are simply re-arrangements of materials and energies that are themselves naturally occurring. If the distinction between discovering and inventing is up for debate, it follows that related laws are too.
I don't actually believe that genes should be patentable, but I do believe in being able to articulate opposing arguments for consideration.
The "competition with China" angle is going to (already has) drive much of the decay of our moral society in the US.
How can we compete with China if we don't <have a surveillance state>/<edit embryos with CRISPR>/<patent everything possible>/<eliminate all protections for laborers>?
Much like Europe has with the US, there is an argument to be made that we should just let them have their piece of the world and return to living happy, normal lives that are less stressed and more focused on being good to one another.
What is the problem with gene editing? It will allow us to remove hereditary diseases from the population, and enhance the capabilities of the next generation. Being in control of our own genome seems completely reasonable.
Whose morals are more important? Which morals are under threat? Most issues that affect life, ending it, sustaining, and now modifying it, are drawn from religions. While some are obviously to the benefit of all they all apply towards the living.
Gene work prior to life; yet another term with much debate; is not the real issue, it is what happens to the life that comes of it. What are the rights we will apply to a person or animal that was modified by gene edits? Animals are pretty much a wash as society only distinguishes between pets and livestock within certain societies.
So how do we address people born of this work? Are groups going to demand that certain work is never done? Just look at current news around the world for some points of contention. People are always point towards issues which they assume cannot be disputed, deadly birth defects or handicaps that prevent a self fulfilling life. However what if, provided it can be done, if groups decide to limit the number of births of one sex? Or say, should it ever be provable, if homosexuality is genetic, would we disallow removing the combination? A dictatorship that decides to create a modified race of brain addled fighting men?
Then consider all the effects on competitive areas, from sports to education. Would engineered humans be afforded the same consideration or locked out?
It is actually not directed to gene patents specifically, but totally overhauls section 101 of the patent act, which addresses what kinds of inventions can be patented. The part that draws concern is the following:
> No implicit or other judicially created exceptions to subject matter eligibility, including “abstract ideas,” “laws of nature,” or “natural phenomena,” shall be used to determine patent eligibility under section 101, and all cases establishing or interpreting those exceptions to eligibility are hereby abrogated.
Those judicially creates exceptions have been used to preclude patenting of genes, algorithms, etc. On the other hand, the law offsets that somewhat by beefing up the utility requirement:
> The term “useful” means any invention or discovery that provides specific and practical utility in any field of technology through human intervention.
That totally new requirement will be construed by courts, but seems to be directed to limiting the effect of the previous paragraph.
In the land of pure speculation, I think gene patents will still be invalid under this new section 101, because the invention must arise through “human intervention.” The bigger effect will probably be on software patents, where the “abstract idea” exception is heavily used, but where the “human intervention” test will certainly always be satisfied.
And invalidate Alice Corp. v. CLS Bank International by making software patents easy again. This is a gift to the patent trolls and medical extortionists.
Patents of that which is all around us should never be permitted. Patents are supposed to protect unique ideas and processes. If what you've come up with is readily available in nature then is it really so unique?
Relevant quote:
"No implicit or other judicially created exceptions to subject matter eligibility,
including “abstract ideas,” “laws of nature,” or “natural phenomena,” shall be used
to determine patent eligibility under section 101, and all cases establishing or
interpreting those exceptions to eligibility are hereby abrogated."
In the U.S. legal system, it depends whether the ruling is interpreting a law or a constitutional limitation.
If the court is interpreting a law passed by the legislature, the legislature is free to change the law. In effect, they would be saying "no, you misunderstood us--the law should be interpreted this way and we're revising it so that's clearer." Sometimes the bill drafters are very explicit about this, including a statement in the preamble to the bill or in the legislative history that the bill is being drafted for the specific purpose of overriding X decision.
On the other hand, if a court finds that a law is unconstitutional, that means that the legislature does not have the authority to pass the law to begin with. A constitutional limitation can't be overridden by statute.
In this case, the Patent Act is a law passed by Congress and can be changed by Congress within the limits of its constitutional authority.
Legislation always trumps the judiciary. The point of the judiciary is to interpret and apply laws, which forms "common law" or precedence for other legal cases. This is the case for almost all multi-branch governmental systems (especially those descended from English legal tradition). The reasoning is that the legislature is elected while the judiciary isn't -- so giving the judiciary the power to overrule the legislature without any recourse would be undemocratic.
You are probably thinking of cases where the Supreme Court has found laws to be unconstitutional. In that case, the legislature has two options: change the law so it's constitutional (might not be possible if the fundamental aspects of the law was to found to be unconstitutional), or change the constitution to accommodate the law (hard because it requires a supermajority of state legislatures to pass it). Both options are available to the legislature and once either is done then the Supreme Court ruling is either no longer applicable (if the law was changed) or possibly completely invalidated (if the constitution was amended).
It depends on how the finding was made. If the court says that something is illegal via a direct conflict with the constitution, then no law short of a constitutional amendment is going to be able to overrule the decision.
In these cases, though, (and I'm not a lawyer!) the existing decisions are on weaker grouns. The court held that nothing in the constitution or the legal charter of the USPTO gave it the power to allow protection for things like gene, software or business method patents. So trying to regulate them was beyond the powers granted to the government by itself.
So you fix that by writing a law spelling out more clearly what the USPTO is allowed to do.
The actual language in the constitution itself is very broad: "To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries". It's extremely hard to read a ban on gene patents in that, IMHO.
The Supreme Court interprets the law as it is written. If the legislature decides they want to change the law, they can (like how if something is declared "unconstitutional", by following procedures the legislature could modify the Constitution to make it so).
This bill would be of no benefit to anyone other than the companies requesting the patents (well, maybe the lawyers for said companies too). There would be no benefit to society, as the patents would be used to extract profits from patients. There would be no benefit to science, as any subsequent discovery opens up the possibility of endless litigation. These patents would decrease competition within the pharmaceutical industry.
We have, as a society, shifted much of our research and development to the private sector. It should be no surprise that the private sector now seeks to recoup their expenditures by protecting them by whatever means necessary.
I've not been able to find the proposed language. Does anyone know whether there's any planning for the exhaustion of the patent? It's scary to think of the implications human gene patentability without at least carving it out from Bowman[0], which said producing crops with a patented gene, even by traditional means, was infringing.
>Competition with China, where no comparable restrictions exist in the patent system, may have motivated the lawmakers, Rai says.
Isn't that backwards? If they don't have comparable restrictions, why hamstrung American companies by making them respect patents that Chinese companies don't have to respect?
I find most of the language discussing this misleading because nobody is actually talking about patenting human genes.
If you're curious about hearing a non-straw-man opinion about "gene" patents, I'd suggest this short article that discusses the BRCA patents and least describes what the patents were actually about. If you're really curious, there are longer more comprehensive sources than this opinion piece:
> Of course, the patent system only protects new things. You cannot get a patent on the raw, untouched form of a molecule as it exists in nature.
> However, you can get a patent for identifying, isolating and purifying something that already exists in the world. For example, the inventor of aspirin at the turn of the 20th century isolated and synthesized the active ingredient in willow bark, which people had chewed for thousands of years to relieve pain and fever.
> The greatest confusion in the debate about the Myriad case stems from failing to understand this distinction. Unfortunately, the Supreme Court contributed to the confusion when it took the case to answer: “Are human genes patentable?” Patent experts scratched their heads, because the answer is undisputed: No, human genes in their naturally occurring form are not patentable.
> But Myriad’s patents don’t cover genes in their naturally occurring, unisolated form, just as the aspirin patent did not cover chewable bark. Rather, the BRCA1 and BRCA2 patents claim the genes as isolated, purified and used in a scientific or medical context.
The gene patents are "composition of matter" patents that apply the genes to particular contexts. I'm not going to argue about the appropriateness of those patents here (which would also seem to apply to the aspirin patent), but I do think it's important to understand what the actual debate is about.
For example, it's also almost certainly false that gene patents covered the entire genome (a response here: https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3979127/ ), and it's false that just because one component of a patent mentions a genetic sequence that all use and research of that genetic sequence is a violation of the patent (because the patents include more than just the gene sequence -- they are a specific application).
The Supreme Court is not always ruling on the Constitution.
When they rule on a matter of statutory interpretation, the bits of federal common law that still exist today, or other federal grounds for a decision that aren't about the Constitution, an Act of Congress is plenty sufficient to change that by eliminating or modifying the basis for the decision.
Supreme Court rules on particular laws and outcomes of nuanced regulations, and in this with patents it has ruled on vague administrative procedures that the patent office promulgated which happened without legislative guidance.
That means Congress can always just change the law.
The Supreme Court didn't say "gene patents are unconstitutional" they said "patents under this x,y,z regulation don't fit x,y,z part of the constitution being argued, we agree/disagree with the lower court". So Congress changes x,y,z regulation with a,b,c law to provide clarity, and it may create the same outcome as before, amongst other outcomes.
"Eschew flamebait. Don't introduce flamewar topics unless you have something genuinely new to say. Avoid unrelated controversies and generic tangents."
I highly doubt you can eat price increases for the entire US population. These things don't just affect you, so it's a bit selfish to take such a "well I'm going to be okay" attitude.
[+] [-] areoform|6 years ago|reply
Logically, if they exist by default and we are making observations about them, then how do we get to patent/own the very idea of them? An absurd parallel would be Charles Darwin patenting a giant tortoise - an entity that exists in nature - upon his discovery and requiring a license fee each time a natural history museum displayed one.
But that's one side of the story; what's the argument for the bill? Is there a logical reason why the patent system should be expanded to include entities you observe in nature?
I am sure the above can be formulated with more precision and panache, but as far as I can tell, I'm not sure what the equivalent set of ideas are for the people arguing for this bill. The best that I can come up with is an appeal to utility (i.e. it would incentivize X, Y or Z). However that's not a strong enough argument - what's the "steel man" that's missing from this conversation?
[+] [-] mcv|6 years ago|reply
Profit. Pharma and biotech corporations fund political campaigns, and in exchange they want laws that allow them to extract more profit. That's pretty much how the political process works.
[+] [-] pseudolus|6 years ago|reply
[+] [-] rayiner|6 years ago|reply
The bill replaces that with a “product of human intervention” test: https://www.jdsupra.com/legalnews/legislators-propose-patent.... The end goal is similar, but in theory it’s easier to define what inventions are the product of human intervention, versus ones that are naturally occurring.
More discussion here: https://www.jdsupra.com/legalnews/legislators-propose-patent...
[+] [-] travisp|6 years ago|reply
[+] [-] IfOnlyYouKnew|6 years ago|reply
The rest, then, is the standard argument for patents and copyright: it takes money and time to investigate this and create a product that is useful. That investment makes no sense if the product can easily be reverse engineered on day one. Even if you could protect the knowledge through some sort of obfuscation, the public is better served by granting you a patent, because the latter is time-limited and the forced publication of your knowledge helps to build on and critically assess the product you are selling.
I generally don’t quite get the distinction b/w “invention” and “discovery”. I guess the idea is there is a limited amount of knowledge to “discover”, but inventions are theoretically unlimited? I’d love to hear from someone who is pro-patent for one category but not the other, preferably with real examples and not “what if you patent gravity?”
[+] [-] josaka|6 years ago|reply
[+] [-] hammock|6 years ago|reply
The argument for is that another monopolistic Monsanto is potentially created with sufficient coffers to keep politicians who support this bill in a lot of money for a long time.
[+] [-] nolok|6 years ago|reply
"But then why would those companies finance the research to identify and understand genes ???"
Yes, the answer to that takes about 10 seconds (less if you're aware of the concept of gene therapy), but that's mostly all they have to go from.
[+] [-] kevinventullo|6 years ago|reply
[+] [-] snowwrestler|6 years ago|reply
Incentive - I'm not sure why you dismiss this, as it is an important part of the justification for intellectual property laws in general. Lincoln said "The patent system added the fuel of interest to the fire of genius," a quote that is carved into the stone of the Dept. of Commerce building in DC.
Constitution - Article 1 Section 8 says "To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." Identifying a gene and its function would seem to qualify as a discovery.
Social - A key feature of patents that is often overlooked is that they are public records. The idea of a patent is not just to secure a temporary monopoly, but to use that temporary monopoly as compensation for public disclosure of a trade secret. The patent expires and then the idea is public knowledge and free to use. This is in contrast to ideas and information that might be kept secret and never divulged to the public.
Philosophical - Is math discovered or invented? There is not universal agreement on this. Likewise, what about something like a vaccine, which is simply a special preparation of naturally occurring materials that trigger your naturally occurring immune system? Which part was invented, and which part discovered? Ultimately it's arguable that humans are naturally occurring phenomena, and all of our works are simply re-arrangements of materials and energies that are themselves naturally occurring. If the distinction between discovering and inventing is up for debate, it follows that related laws are too.
I don't actually believe that genes should be patentable, but I do believe in being able to articulate opposing arguments for consideration.
[+] [-] dannykwells|6 years ago|reply
How can we compete with China if we don't <have a surveillance state>/<edit embryos with CRISPR>/<patent everything possible>/<eliminate all protections for laborers>?
Much like Europe has with the US, there is an argument to be made that we should just let them have their piece of the world and return to living happy, normal lives that are less stressed and more focused on being good to one another.
[+] [-] Creationer|6 years ago|reply
[+] [-] Shivetya|6 years ago|reply
Gene work prior to life; yet another term with much debate; is not the real issue, it is what happens to the life that comes of it. What are the rights we will apply to a person or animal that was modified by gene edits? Animals are pretty much a wash as society only distinguishes between pets and livestock within certain societies.
So how do we address people born of this work? Are groups going to demand that certain work is never done? Just look at current news around the world for some points of contention. People are always point towards issues which they assume cannot be disputed, deadly birth defects or handicaps that prevent a self fulfilling life. However what if, provided it can be done, if groups decide to limit the number of births of one sex? Or say, should it ever be provable, if homosexuality is genetic, would we disallow removing the combination? A dictatorship that decides to create a modified race of brain addled fighting men?
Then consider all the effects on competitive areas, from sports to education. Would engineered humans be afforded the same consideration or locked out?
[+] [-] duxup|6 years ago|reply
They have nothing to do with China.
[+] [-] unknown|6 years ago|reply
[deleted]
[+] [-] cat199|6 years ago|reply
but this would mean we'd have to actually produce things again..
[+] [-] rayiner|6 years ago|reply
It is actually not directed to gene patents specifically, but totally overhauls section 101 of the patent act, which addresses what kinds of inventions can be patented. The part that draws concern is the following:
> No implicit or other judicially created exceptions to subject matter eligibility, including “abstract ideas,” “laws of nature,” or “natural phenomena,” shall be used to determine patent eligibility under section 101, and all cases establishing or interpreting those exceptions to eligibility are hereby abrogated.
Those judicially creates exceptions have been used to preclude patenting of genes, algorithms, etc. On the other hand, the law offsets that somewhat by beefing up the utility requirement:
> The term “useful” means any invention or discovery that provides specific and practical utility in any field of technology through human intervention.
That totally new requirement will be construed by courts, but seems to be directed to limiting the effect of the previous paragraph.
In the land of pure speculation, I think gene patents will still be invalid under this new section 101, because the invention must arise through “human intervention.” The bigger effect will probably be on software patents, where the “abstract idea” exception is heavily used, but where the “human intervention” test will certainly always be satisfied.
[+] [-] kevin_b_er|6 years ago|reply
[+] [-] inetknght|6 years ago|reply
[+] [-] Retra|6 years ago|reply
[+] [-] Real_S|6 years ago|reply
https://www.tillis.senate.gov/services/files/E8ED2188-DC15-4...
Relevant quote: "No implicit or other judicially created exceptions to subject matter eligibility, including “abstract ideas,” “laws of nature,” or “natural phenomena,” shall be used to determine patent eligibility under section 101, and all cases establishing or interpreting those exceptions to eligibility are hereby abrogated."
[+] [-] aqme28|6 years ago|reply
[+] [-] matthewmcg|6 years ago|reply
If the court is interpreting a law passed by the legislature, the legislature is free to change the law. In effect, they would be saying "no, you misunderstood us--the law should be interpreted this way and we're revising it so that's clearer." Sometimes the bill drafters are very explicit about this, including a statement in the preamble to the bill or in the legislative history that the bill is being drafted for the specific purpose of overriding X decision.
(Tracking this is challenging--see this article for a good discussion https://www.repository.law.indiana.edu/cgi/viewcontent.cgi?a...)
On the other hand, if a court finds that a law is unconstitutional, that means that the legislature does not have the authority to pass the law to begin with. A constitutional limitation can't be overridden by statute.
In this case, the Patent Act is a law passed by Congress and can be changed by Congress within the limits of its constitutional authority.
[+] [-] cyphar|6 years ago|reply
You are probably thinking of cases where the Supreme Court has found laws to be unconstitutional. In that case, the legislature has two options: change the law so it's constitutional (might not be possible if the fundamental aspects of the law was to found to be unconstitutional), or change the constitution to accommodate the law (hard because it requires a supermajority of state legislatures to pass it). Both options are available to the legislature and once either is done then the Supreme Court ruling is either no longer applicable (if the law was changed) or possibly completely invalidated (if the constitution was amended).
[+] [-] ajross|6 years ago|reply
In these cases, though, (and I'm not a lawyer!) the existing decisions are on weaker grouns. The court held that nothing in the constitution or the legal charter of the USPTO gave it the power to allow protection for things like gene, software or business method patents. So trying to regulate them was beyond the powers granted to the government by itself.
So you fix that by writing a law spelling out more clearly what the USPTO is allowed to do.
The actual language in the constitution itself is very broad: "To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries". It's extremely hard to read a ban on gene patents in that, IMHO.
[+] [-] vageli|6 years ago|reply
[+] [-] polygotdomain|6 years ago|reply
We have, as a society, shifted much of our research and development to the private sector. It should be no surprise that the private sector now seeks to recoup their expenditures by protecting them by whatever means necessary.
[+] [-] perpetualpatzer|6 years ago|reply
[0]https://www.supremecourt.gov/opinions/12pdf/11-796_c07d.pdf
[+] [-] ummonk|6 years ago|reply
Isn't that backwards? If they don't have comparable restrictions, why hamstrung American companies by making them respect patents that Chinese companies don't have to respect?
[+] [-] travisp|6 years ago|reply
If you're curious about hearing a non-straw-man opinion about "gene" patents, I'd suggest this short article that discusses the BRCA patents and least describes what the patents were actually about. If you're really curious, there are longer more comprehensive sources than this opinion piece:
https://www.nytimes.com/roomfordebate/2013/06/06/can-the-hum...
> Of course, the patent system only protects new things. You cannot get a patent on the raw, untouched form of a molecule as it exists in nature.
> However, you can get a patent for identifying, isolating and purifying something that already exists in the world. For example, the inventor of aspirin at the turn of the 20th century isolated and synthesized the active ingredient in willow bark, which people had chewed for thousands of years to relieve pain and fever.
> The greatest confusion in the debate about the Myriad case stems from failing to understand this distinction. Unfortunately, the Supreme Court contributed to the confusion when it took the case to answer: “Are human genes patentable?” Patent experts scratched their heads, because the answer is undisputed: No, human genes in their naturally occurring form are not patentable.
> But Myriad’s patents don’t cover genes in their naturally occurring, unisolated form, just as the aspirin patent did not cover chewable bark. Rather, the BRCA1 and BRCA2 patents claim the genes as isolated, purified and used in a scientific or medical context.
The gene patents are "composition of matter" patents that apply the genes to particular contexts. I'm not going to argue about the appropriateness of those patents here (which would also seem to apply to the aspirin patent), but I do think it's important to understand what the actual debate is about.
For example, it's also almost certainly false that gene patents covered the entire genome (a response here: https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3979127/ ), and it's false that just because one component of a patent mentions a genetic sequence that all use and research of that genetic sequence is a violation of the patent (because the patents include more than just the gene sequence -- they are a specific application).
[+] [-] shmerl|6 years ago|reply
[+] [-] ptah|6 years ago|reply
[+] [-] jkaplowitz|6 years ago|reply
When they rule on a matter of statutory interpretation, the bits of federal common law that still exist today, or other federal grounds for a decision that aren't about the Constitution, an Act of Congress is plenty sufficient to change that by eliminating or modifying the basis for the decision.
[+] [-] rolltiide|6 years ago|reply
That means Congress can always just change the law.
The Supreme Court didn't say "gene patents are unconstitutional" they said "patents under this x,y,z regulation don't fit x,y,z part of the constitution being argued, we agree/disagree with the lower court". So Congress changes x,y,z regulation with a,b,c law to provide clarity, and it may create the same outcome as before, amongst other outcomes.
[+] [-] jimbob45|6 years ago|reply
[+] [-] dang|6 years ago|reply
We detached this subthread from https://news.ycombinator.com/item?id=20104483 and marked it off-topic.
[+] [-] sombremesa|6 years ago|reply
[+] [-] 8note|6 years ago|reply