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SCOTUS To Hear Patentable Thought Case 394

Posted by Zonk
from the get-out-of-my-head dept.
skayell writes "The Supreme Court of the United States will hear a landmark patent case involving whether or not thoughts and relationships are patentable. Michael Crichton's essay in the New York Times attempts a thoughtful summary of Metabolite's primary assertion: they not only own the connection between homocysteine levels in the blood and vitamin B12 deficiency, but also any thought connecting the two."
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SCOTUS To Hear Patentable Thought Case

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  • crap (Score:5, Funny)

    by Janek Kozicki (722688) on Sunday March 19, 2006 @02:48PM (#14952756) Journal
    this is the first time I used a tag crap, you can follow if you wish :)
    • since you're not a subscriber, your tagging has no effect.
      • Actually, it's "open to subscribers and some users"...

        ..whatever that means. I can at least input tags and submit them, does that mean I'm a golden chosen one?

    • Re:crap (Score:5, Insightful)

      by IgnoramusMaximus (692000) on Monday March 20, 2006 @10:52AM (#14956591)
      And so now, Ladies and Gentlemen, you finally have a glimpse of the true, inevietable and logical implications of the notion of the so-called "Intellectual Property".

      No, folks, this is not an abberrant perversion of law or politics. This is the true purpose, as intended, of IP. Utter and total control of information, including thoughts, basic arithmetics, integer numbers and lanugage constructs. Because, as I kept explaining over and over, all of these are mere forms and facets of the same thing: information. And once you allow "ownership", however illogical that idea is, of information, the rest simply follows from there.

      To its inevietable consequences.

      Cause and effect. It is as simple as that.

      • Re:crap (Score:3, Insightful)

        by wileyAU (889251)
        This country is going to have to come to a serious reckoning very soon on the subject of Intellectual Property. I may be annoyed by HBO threatening to sue me over shifting a few bits around the network, but there are things far worse. My mother recently had her gall bladder removed. But what if her doctor had not been able to tell her the result of the test to determine that because someone else held a patent on that diagnosis? I do understand the need for patents. It is entirely reasonable to protect
        • Re:crap (Score:3, Interesting)

          I do understand the need for patents.

          I don't. Or more precisely, I do understand the intention, but it is plain to see that while it might have been semi-workable in the 19th century, the idea is fundamentally flawed.

          It is entirely reasonable to protect an idea long enough for a company to produce a product and start making money.

          Not so. The claim is being made that patents "promote innovation". That is not true. Desire to learn in some areas and greed and competition in others "promote innovation". The

  • by Nick Gisburne (681796) on Sunday March 19, 2006 @02:49PM (#14952757) Homepage
    Let's just have patents on EVERYTHING, every gene, every molecule, every action you could ever think of. Then in 17 years (or whatever the time limit is) when they expire, we can forget all this patent bullshit and just get on with life again. I'd be willing to wait those 17 years if the patent system would just expire.
    • by TubeSteak (669689) on Sunday March 19, 2006 @02:57PM (#14952795) Journal
      1. 17 years is a minimum, not a maximum for medical patents. You can get extensions for a variety of reasons & the big pharma companies often do.

      2. If you let the bastards lock up everything for the next 17 years, the Chinese are going to put the U.S. of A. so far behind that it'll require a insane amounts of spending to catch up.

      3. The public might need some of the innovations those ideas may generate between now and the year 2023.
      • I'm so fucking sick of these stupid patents that I think the grandparent and the parent posts are right. We should patent everything and let other countries who don't have such stupid laws out-do us in the technology field. We reap what we sow, and maybe if/when China does get ahead, that will be the impetus for the USA to change these stupid laws.
    • You jest, but this just might work... The people wouldn't even need to wait the full 20 years for the patent system to meltdown:

      Patents expire 20 years after the initial filing date of a patent application. If everyone were to DDoS the patent office with junk patent applications on every little thing imaginable in the world, we could bog down the patent office so much that it would take decades to get a patent reviewed and granted. If it takes 15 years to get a patent reviewed, the patent owner only gets a
      • If it takes 15 years to get a patent reviewed, the patent owner only gets a scant 5 years to enforce their patent against people

        There is already a term extension for patents whose approval was unjustly delayed. See Title 35, United States Code, section 156 and the surrounding sections. If the Patent Office gets too bogged down, then Congress could broaden this extension or, as a last-ditch effort, just reinstate the rule for patents that were subsisting as of 1997: the greater of filing + 20 or grant +

      • Perhaps we should create a program that enumerates every thought, and formats them as patent applications, and files.

        Of course, the patent authorities would counter by raising fees the for filing an application enough to either choke the DDoS or fund salaries for more patent office clerks.

    • Wouldn't work (Score:5, Insightful)

      by NigelJohnstone (242811) on Sunday March 19, 2006 @03:13PM (#14952851)
      Sony just lost another court case relating to the vibration feedback on the dual shock joysitck.
      (The claim is that the eccentric wheel is attached directly to the stick not the case and that this is novel because it gives feedback directly to the stick).

      I found a patent that match exactly the same feature, same linkages, same thing, an eccentric shake feeback mechanism on a joystick on an aircraft simulator from Fokker in 1980's. Yet Sony just lost another case, even though its the same thing only smaller.

      The court assume the patent office has done its job.

      As long as the patent office doesn't enforce novelty and non-obviousness, the same patents will keep coming up again and again and again and the courts will enforce each new one.

      • Re:Wouldn't work (Score:5, Insightful)

        by jimicus (737525) on Sunday March 19, 2006 @04:46PM (#14953222)
        The court assume the patent office has done its job.

        This is something I keep hearing, yet have trouble believing.

        The US patent office has clearly given up on examining patents (except in possibly the most glaringly obvious of caases), figuring that the lawyers can battle it out in court.

        The courts have decided "well, the patent was awarded so there must be some element of patentability to it".

        Is it really the case that these two departments, with the hundreds, if not thousands of people they keep in employment, has yet to notice this? That nobody in the courts has actually telephoned the patent office and said "Look, I know this might be a stupid question, but are you guys actually bothering to read patent applications before you grant them?".
        • Re:Wouldn't work (Score:5, Insightful)

          by penguin-collective (932038) on Sunday March 19, 2006 @07:27PM (#14953882)
          Is it really the case that these two departments, with the hundreds, if not thousands of people they keep in employment, has yet to notice this?

          You don't quite seem to understand how real life works. The issue for the courts is not "is this reasonable", the issue for the courts is "how can I clear my backlog of cases". Well, being able to say "this patent is vaild because the USPTO says so" is a very quick and simple way of getting a case off the table.

          Judges, on the whole, operate no differently from hamburger flippers, assembly line workers, and people who clean your toilets: they want to spend the least amount of time and effort necessary to get their work done; without considerably more oversight than they have today, they're going to keep making the judgements that let them get back to playing golf as quickly as possible.
    • Unfortunately, that would require at least an aleph-0 of patents. And given how slow and overwhelmed the patent office is, no doubt an aleph-3 to process them all.

    • That'll work well, until the injunction on infringing on my patent for "An Apparatus and Process for Extracting Oxygen from a Low-Density Fluid Using Positive and Negative Pressure Differentials" comes into effect.

      Seventeen years is a long time.
    • Let's just have patents on EVERYTHING, every gene, every molecule, every action you could ever think of. Then in 17 years (or whatever the time limit is) when they expire, we can forget all this patent bullshit and just get on with life again. I'd be willing to wait those 17 years if the patent system would just expire.

      Screw you buddy! Do you know how difficult it is to not have sex or, in the case of the Slashdot crowd, masturbate for 17 years

    • This rather naive notion assumes that the terms of patents wouldn't be extended like the term of copyright has been extended many times, so that these patents actually would expire in some relatively short amount of time. It assumes that the adverse impact borne by the poor would not be so great as to seriously injure and/or kill them. It assumes that the loss to other freedoms we value would not be so great that we would miss those other freedoms: what if an unlimited patent scope poses greater interfere
  • Here's a chance for the Court to clear away some of the brush accumulated by the PTO bureacracy that threatens to engulf all intellectual activity, property generation and otherwise, in flames. Who wants to bet whether the latest two of the nine appointed justices will protect thinkers' freedom and the market's choices, or monopolies on ideas and inventions?
    • I think we know how the people in power would like them to rule. Those in power are doing everything they can to destroy democracy and the free market and install a fundamentalist oligarchy in their place. However, you never know with supreme court justices. They are appointed for life after all, so theoretically they are free to rule based on their conscience. Hopefully they weren't appointed simply because someone has some really nasty dirt on them that can be used to ensure their cooperation.
  • Otherwise, you all are infringing on an undisclosed thought that I am having
    • Otherwise, you all are infringing on an undisclosed thought that I am having

      Well, at least patents do have to be disclosed. Apparently you no longer have to disclose how it works, but you do have to disclose what it does, in terms that are vague enough not to let your competitors know what you're up to but specific enough not to apply to obvious prior art.

      Patents are supposed to be a trade-off: you tell us how it works, and we won't let anyone else make it for awhile.
    • On the other hand, if it's held up, you can patent the idea of patenting somthing. That'd screw the system up. Thankfully, living here in the UK, we don't (yet) allow patents of this kind, infact according to the patent office website [patent.gov.uk] it's specifically excluded:

      "An invention is not patentable if it is:
      • a discovery;
      • a scientific theory or mathematical method;
      • an aesthetic creation such as a literary, dramatic or artistic work;
      • a scheme or method for performing a mental
  • by Alien54 (180860) on Sunday March 19, 2006 @02:52PM (#14952773) Journal
    will happen because of the absurdities growing in both Patent and Copyright Law. This is what it feels like to be a test monkey in a laboratory, folks.
  • by dirtyhippie (259852) on Sunday March 19, 2006 @02:53PM (#14952775) Homepage
    Guy 1: "Are you thinking what I'm thinking?"

    Guy 2: "Yes!"

    Guy 1: "I'll see you in court, asshole."
  • by say (191220) <sigveNO@SPAMwolfraidah.no> on Sunday March 19, 2006 @02:54PM (#14952778) Homepage

    We don't need no education
    ('cause) Metabolite does thought control
    Science, progress - all is futile
    People, leave the firms alone!
    People! Leave the firms alone!
    All in all you're just another brick in the wall.

  • by Fitzghon (578350) on Sunday March 19, 2006 @02:57PM (#14952791)
    The patent system is definitely broken. It is bogging down innovation with lawsuits and silly claims. It is very nice to see Crichton on the offensive about this issue, and hopefully he and Research in Motion (RIM) will be able to trigger some more response and reform in the patent office. As was noted earlier on ./ RIM is running full-page ads (cf. http://www.rcrnews.com/news.cms?newsId=25858 [rcrnews.com]) protesting the patent office situation.

    Fitzghon
    • Until I read TFA, I didn't realize he was that MICHAEL CRICHTON.
      Lawyers now advise ... screenwriters to patent their movie plots. (My screenplay for "Jurassic Park" was cited as a good candidate.)
      I just assumed it was a guy with a similiar name.

      Has he always been active in the opinion/commentary field?
    • The patent system is definitely broken. It is bogging down innovation with lawsuits and silly claims.

      This didn't happen accidently. It's a deliberate strategy. Correct me if I'm wrong, but I think it was in the Reagan administration that the then-current administration decided that the USPTO would not decide on every patent's validity anymore -- that they would essentially grant everything submitted and "let the courts decide" the validity of a patent since the courts had more resources to devote to it th

  • by vrimj (750402) on Sunday March 19, 2006 @02:58PM (#14952796)
    maybe the tower of Babel was actually a restrictive IP regime... someone got copyright on the alphabet so someone else had to reverse-engineer to avoid licensing fees
    • In some sence you may be correct. I often look at the Bible as an outlines, or ideas that bring thoughts or trends to light. So the story of the Tower Babel may be an idea that puts light on ideas and trends that are bad for communiction and understanding. It is clear that a large public domain fed ditectly and from the private domain is better for comminication and understanding than the alternative.
    • Oh, now I get it! The religious right are trying to screw up the patent system to keep us from inventing technology that can reach God!
  • by HangingChad (677530) on Sunday March 19, 2006 @03:01PM (#14952805) Homepage
    The Supreme Court of the United States will hear a landmark patent case involving whether or not thoughts and relationships are patentable.

    You'd think with all the big issues facing the country something like this wouldn't pass the laugh test. Yet it's made it all the way to the Supreme Court.

    If thoughts turn out to be patentable, then I'm going to be first in line to patent any sexual or obscene thought involving a virtualization of another human being, animal or farm implement used for or engaging in sexual activity, for the purpose of self-stimulation.

    Then I'm going sue every one of you wankers on /. :) It'll give whole new meaning to the phrase "penny for your thoughts".

  • Use the law against the patent holders.
    If I was ill and someone actively prevented me from receiving medical aid then I am su re that that person would be breaking the law.
    If the owner of the Hepatitis C virus is standing in the way of a possible cure, surely they are doing the same thing to all Hepatitis C sufferers.
    I hope you can hear the rumbling of a class action lawsuit in the distance.

    Before anyone responds - well fine, but this means that we should be able to sue hospitals for not providing free drug
    • Oh, the naivete (Score:5, Insightful)

      by metamatic (202216) on Sunday March 19, 2006 @03:20PM (#14952879) Homepage Journal
      If I was ill and someone actively prevented me from receiving medical aid then I am sure that that person would be breaking the law.

      Thousands of people in the third world die every day because western corporations deny them the right to manufacture patented drugs, and they can't afford to buy them at our prices.

      There have also been cases where drugs have been made unavailable at any price, because the patent holder has refused to manufacture them or license the patents. For example, Mifepristone (RU-486) was kept off the US market for a while [motherjones.com] because the patent holder was unwilling to sell a politically incorrect drug in the USA, and it took a lot of pressure to get them to license the patent.

      So I'm afraid if a patent prevented you from getting vital medical aid, you would simply be allowed to die. That's the way US capitalism works.

    • by tengwar (600847) <slashdot.vetinari@org> on Sunday March 19, 2006 @04:12PM (#14953082)
      A more elegant solution: if you hold the patent on the diabetes gene, you should be held responsible for all cases of diabetes, treated or not.
  • Never thought it would come to this, that someone came up even with this idea!

    There are a lot of mechanisms in a human body, and often there are several ways to have medicines interact with malfunction systems, you can block certain receptors, or stimulate others, with more or less the same outcome. Often it is good to have medicines at hand with different working mechanisms, because not everyone will react the same. What the heck, sometimes even the formulation (coated capsule, prolonged release tablet,

    • I'm going to patent the digestive process. Not only will I be able to collect a progressive royalty (poor people eat less, therefore would pay less -- it's fair, see?) from EVERYONE in the world, I could sue anyone that gives a shit about it, is nauseated by my overreaching patent-grab, or predicts that the shit will hit the fan.

  • The general public is starting to gain an awareness of how bad things have gotten with the current patent/copyright regime. We have the recent RIM/NTP debacle, we have a NYT op-ed piece by Michael Crichton. It's a start. Oh sorry, start is patented. It's a beginning.
  • No, seriously... We need to remind the asshats in Washington that we consider the idea of legislating thought so obnoxious that we mock the very idea.

    They might not get the jokes, but we'll still have the last laugh, one way or another...
  • Patents do nothing but stifle innovation. Time to get rid of patents and put everything squarely into copyright. Let independent invention work to the benefit of everyone.
    • by Teancum (67324) <{ten.orezten} {ta} {gninroh_trebor}> on Sunday March 19, 2006 @04:43PM (#14953213) Homepage Journal
      I completely agree. I got into a major arguement earlier here on /. with a patent attorney over this very issue, and the conversation further convinced me of this concept.

      Regardless of what endeavor of engineering I might participate in (and I do consider myself to be primarily an engineer), I fail to see any benefit at all to any kind of patent, including mechanical engineering... the classical example of patents.

      I strongly consider patent attorneys to be simply fronts for a massive scam, and a modest revenue source for the U.S. Government. The expansion of patentable items is happening precisely because of the money that can be generated by this agency, which essentially pays for itself and even provides a modest surplus that doesn't need strict accounting, and can even be diverted to black ops if necessary. Talk about a conflict of interest on the part of the government here that is hearing the case.

      Far too often I personnally know of people that have filed a patent, only to get themselves raked over the coals and have their "inventions" taken away anyway. A classical example is my grandfather, who patented about 30 different inventions and spent a minor fortune on attorney costs and filing fees for all that work. I think he got a total of about $2000 in royalties for all that work. One of his patents is explicitly cited as a fore-runner to Compact Discs (and subsequent technologies like the DVD) and developed encryption technologies that have been used by the NSA.

      Unfortunately this is more of a typical example and not the exception. It is a very strong exception where a genuinely innovative concept is patented and a major company "buys" the patent and pays royalties to the inventor. Far too often a patent is filed strictly by a major company to protect themselves from any other idiot who also tries to file a competing patent that is subsequently accepted by the USPTO. The other use is to do a business negotiation where patents are "swapped", such as what happened with MPEG-4 and the DVD Forum (formerly the DVD Consortium).

      The only practical benefit that I can see from patents right now is that they can preserve for future generations different techniques and manufacturing concepts, including assembly guidelines and how things are made. The problem with this attitude is that a typical patent application is so sparse that even somebody "learned in the art" can hardly recreate the patented process. They usually go into just enough detail to muddy the waters if there is an "infringement", and are so vague and interpreted so broadly by courts that you can't really even know if what you are doing violates a patent until after you have been slapped by a lawyer with a lawsuit.

      Furthermore, engineers are explicitly told never to read any patents, under fear by management that they might "accidently" incorporate a patented idea into their design. So what is the real pratical benefit other than to keep a group of lawyers wealthy?
  • The first thin wedge (Score:5, Interesting)

    by Stephen Samuel (106962) <samuel AT bcgreen DOT com> on Sunday March 19, 2006 @03:23PM (#14952887) Homepage Journal
    Hopefully the SCOTUS has chosen this as a poster boy for the inanity of the current Patent system... The first thin wedge of peeling back the move to patent any and everything including software.

    I have a dream .....

  • It is brilliantly written.

    Especially the ending - I reproduce it here (spoiler warning :-P)

    I wanted to end this essay by telling a story about how current rulings hurt us, but the patent for "ending an essay with an anecdote" is owned. So I thought to end with a quotation from a famous person, but that strategy is patented, too. I then decided to end abruptly, but "abrupt ending for dramatic effect" is also patented. Finally, I decided to pay the "end with summary" patent fee, since it was the least

    • Oh, and by the way: I own the patent for "essay or letter criticizing a previous publication."

      Dude is going to make a mint off slashdot

    • actually, i thought it was brilliantly written until the the end, when he pulls out and flogs to death that inane /. joke (which is just one level above quoting monty python or office space).
  • by zappepcs (820751) on Sunday March 19, 2006 @03:24PM (#14952891) Journal
    The relationship between physical things, such as B12 and some disease is not an invention, it is an observation. Thinking that there is a relationship is not licensed, and therefore cannot be held as private works. Proving the relationship is, more or less, like writing a book. Once you've written it, no one else can claim they did it first. That still doesn't give anyone the right to say no one else can use that relationship, even for the length of a patent.

    Thoughts are not inventions, and patent law does not apply. The reason for patent laws was to allow those who acted on their thoughts first to use them for some gain. There has to be an 'invention' for any patent to be issuable, and a discovery of how nature works is not an invention, just as no one can patent 'air' or gravity, no one can patent the relationship between two things that happens in nature.

    An example: Many thought of powered flight, but it was the Wright brothers who did it. There is a show on cable lately about how Star Trek created the modern world, or many of the technologies in it, yet the show's creators and writers do not have patents on things like the ion drive, or medical technologies. If this is not smacked down HARD, it will be science fiction writers who own the world in the next century, and they will not be friendly to big business IMO.

    Mr. Clarke gave us communications satellites (IIRC) and other science fiction writers would have dibs on tons of things that big business just can't get their minds around yet, like say... talking computers? Mining technologies? cures for diseases? ... the list goes on.

    Once that is pointed out to the lawyers I think it will all die the quick death of "That was a fscking bad idea, fire the guy who thought of that"....
  • by srussia (884021) on Sunday March 19, 2006 @03:25PM (#14952897)
    The USPTO has a page clearly explaining what can be patented: [uspto.gov]

    A few choice excerpts:
    In the language of the statute, any person who "invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent,"

    The terms are then defined:
    The word "process" is defined by law as a process, act or method, and primarily includes industrial or technical processes.
    So "process" really means processes, and "acts" and "methods" as well.

    The term "machine" used in the statute needs no explanation.
    Gee, thanks for that "explanation".

    Some more gems:
    The term "manufacture" refers to articles which are made, and includes all manufactured articles.
    These classes of subject matter taken together include practically everything which is made by man and the processes for making the products.
    The term "useful" in this connection refers to the condition that the subject matter has a useful purpose


    These guys really need a primer on "circular definitions".

    I'll be happy to start them off: Circular definitions are definitions that are, ya know, circular.
  • by Absolut187 (816431) on Sunday March 19, 2006 @03:30PM (#14952917) Homepage
    This essay contains many flawed assertions and shows a clear misunderstanding of patent law.

    Here are a few flaws:

    1) Scientific principles are not patentable. "A principle is not patentable." Le Roy v. Tatham, 55 U.S. 156, 159 (1852)
    However, a practical application of a scientific principle may be patented. The real question is whether the patent is properly categorized as a scientific principle or not.

    2)

    It means that if a real estate agent lists a house for sale, he can be sued because an existing patent for selling houses includes item No. 7, "List the house."

    Obviously Mr. Crichton has not been informed of the "all elements" rule.
    Literal infringement requires infringement of every single element in a claim. Although it is technically true that "he can be sued", it is also true that anyone can be sued at any time for anything. The point is, the case would be dismissed.

    3)
    Nevertheless 20 percent of the genome is now privately owned.

    The genes themselves are not owned. A "product of nature" - a naturally occurring substance discovered in the wild - may not be patented per se.
    However, a method for extracting, isolating, and purifying a gene may be patentable. But keep in mind that patents only last for 20 years - so these patented methods will be publicly available for free in less than 20 years. And others are still free to find other methods of extraction.

    Certainly Mr. Crichton can afford an introductory class in patent law.
    Hopefully he will be better informed the next time he publishes an essay.
    Because this type of uninformed nonsense passed off as fact is really annoying.

    • Literal infringement requires infringement of every single element in a claim.

      It also requires infringement of every element of only one claim in a given patent.

    • by the eric conspiracy (20178) on Sunday March 19, 2006 @04:26PM (#14953145)
      I agree, and as far as I am concerned the publication of an article in the NYT that is so obviously full of factual errors exposes the editorial staff of what used to be a great newspaper as incompetant.Such ridiculous articles do nothing to further and in reality detract from efforts to promote real and needed patent reform.

      The US patent process has some serious problems chief amoung them being the granting of business process patents and secondarily granting patents for material that does not actually constitute an invention. Congress should make it clear in patent reform legislation that a patent should only be granted for something novel and useful, and business proceses should not be covered. Software patents are an area of great abuse at present - many trivial ideas are being patented.

      BTW, the following article describes in a much more cogent way the issues with this particular case than the Crichton editorial.

      http://patentlaw.typepad.com/patent/2005/10/labcor p_v_metab_1.html [typepad.com]

    • Although it is technically true that "he can be sued", it is also true that anyone can be sued at any time for anything. The point is, the case would be dismissed.

      As others have pointed out, infringing a single claim of the patent may be enough for you to lose the case. More important, the costs of litigation are such that most cannot afford to defend the case anyway. By the time you "won", you would have needed to spend millions of dollars (likely unrecoverable).

      Patents are like nuclear weapons. Majo

    • Scientific principles are not patentable. However, "Courts have interpreted the patent laws such that the laws of nature, basic physical phenomena, and completely abstract ideas may not be patented. A "composition of matter" is one of the things which is explicitly declared patentable. Since the canonical form of a gene is a string of nucleotides, which is a specific and unique composition of matter, genes have been declared patentable."

      Thus, "whether the patent is properly categorized as a scientific p
    • by ajs (35943) <ajs&ajs,com> on Monday March 20, 2006 @01:38AM (#14955066) Homepage Journal
      "Here are a few flaws:"

      I beg to differ.

      "1) Scientific principles are not patentable."

      Ah, but that is a technical point which has long since been circumvented by the reality. For all practical purposes scientific principles have been patentable since at least the 80s (XOR anyone?)

      It means that if a real estate agent lists a house for sale, he can be sued because an existing patent for selling houses includes item No. 7, "List the house."

      "Obviously Mr. Crichton has not been informed of the "all elements" rule."

      This presumes that hypothetical item number 7 is not, itself, a claim.

      Nevertheless 20 percent of the genome is now privately owned.

      "The genes themselves are not owned. A "product of nature" - a naturally occurring substance discovered in the wild - may not be patented per se.

      "However, a method for extracting, isolating, and purifying a gene may be patentable.
      "

      Ok, so he's correct. then. Why is this on your list if he's correct? Or were you just not counting the technicality (because I assure you that the courts and drug companies are!

      "But keep in mind that patents only last for 20 years - so these patented methods will be publicly available for free in less than 20 years."

      20 years... give or take possible renewal and the massive impact that 20 years can have on innovation. Oh, and the fact that duplicate patents are routinely issued.

      "And others are still free to find other methods of extraction."

      And yet, since vague claims are granted, other methods are likely to infringe.

      "Certainly Mr. Crichton can afford an introductory class in patent law."

      I'm not sure that's the case, but I am sure that innovation is in one of two modes everywhere that I look now: a slow, cautious crawl, in an attempt to avoid getting sued; or a rapid, but questionable pace of innovating on top of IP that isn't owned by the innovator (e.g. open source software).
  • Michael Crichton's essay in the New York Times attempts a thoughtful summary of Metabolite's primary assertion: they not only own the connection between homocysteine levels in the blood and vitamin B12 deficiency, but also any thought connecting the two
    Great. So MC has not only infringed the Metabolite patent by thinking about the connection between homocysteine levels and vitamin B12 deficiency, but by publishing the article he has incited all the readers to also infringe the patent. And now I'm probably inciting more people to infringe.
  • I win this game (Score:2, Insightful)

    by hyperbotfly (934309)
    1. Patent the patent system 2. ??? 3. PROFIT!
  • The Patent Office shall add your distinctivenes to our own. Resistance (as well as ohms, voltage, and other scientific knowledge) is futile.
  • by Absolut187 (816431) on Sunday March 19, 2006 @04:13PM (#14953090) Homepage
    The patent: 4940658 [uspto.gov]

    The citation to the federal circuit case, which held the patent valid and infringed, is: 370 F.3d 1354
    The case held the following:

    Evidence supported finding that physicians using test that measured level of marker chemical in bodily fluids infringed patent for method of detecting vitamin deficiencies, for purpose of determining whether test supplier was liable for induced or contributory infringement; purpose of measuring chemical was to correlate its level to patient's vitamin levels, as called for in patent.
    Evidence supported finding that laboratory's performance of vitamin deficiency test was intended to induce physicians' infringement of patent for method of detecting vitamin deficiencies; laboratory advertised test as method of determining vitamin deficiencies in manner called for by patent.


    The infringed claim is claim 13:
    Claim 13 claims the total homocysteine test:

    13. A method for detecting a deficiency of cobalamin or folate in warm-blooded animals comprising the steps of: assaying a body fluid for an elevated level of total homocysteine; and correlating an elevated level of total homocysteine in said body fluid with a deficiency of cobalamin or folate.


    The Supreme Court will hear only the third question presented in the petition for cert:

    3. Whether a method patent setting forth an indefinite, undescribed, and non-enabling step directing a party simply to "correlat[e]" test results can validly claim a monopoly over a basic scientific relationship used in medical treatment such that any doctor necessarily infringes the patent merely by thinking about the relationship after looking at a test result.


    From petitioner's reply brief:

    Respondents' brief is notable for what it does not contest. Respondents do not contest that, under the Federal Circuit's construction, every doctor who orders a homocysteine test and simply thinks about what the result might signify has infringed Claim 13. They do not contest that this holding has allowed them to monopolize all homocysteine testing, whether accomplished via methods existing before the Patent application, methods developed thereafter, or methods yet to be developed.


    Interesting article:
    http://www.theiplawblog.com/archives/patent-law-44 -testing-again-the-bounds-of-patentable-subject-ma tter.html [theiplawblog.com]
  • Crichton whines that the relationship between B vitamins and homocysteine is patented without appearing to have read the papers published in NEJM this week demonstrating quite persuasively that this relationship has no clinical value: vitamin B supplements for patients with high homocysteine don't affect patient outcomes.

    Second, Crichton whines about the patents on the Hep-C virus genome. What he doesn't mention is for a decade no one managed to isolate Hep C virus or sequence its genome. Chiron took a bi

    • Whether a patent has clinical value, or whether anyone has managed to act on a patent is besides (way off in another universe, actually) the point. The mind reels at the possibility that something as fundamental as a genome or a biochemical mechanism can be owned. (Patent) lawyers have managed to drive common sense into extinction.
      • I agree that it's a bit ridiculous to patent the relationship between B vitamins and homocysteine, but if this were a problem in real life, rather than just in paranoid fantasy, shouldn't Crichton be able to come up with examples of where it's actually caused problems? The whole essay seems to be a paranoid fantasy that someone will patent the rights to his next novel rather than a demonstration that there are actual problems in the real world.

        I agree that there are actual real-worl problems with patent a

    • by Quixote (154172) * on Sunday March 19, 2006 @04:57PM (#14953270) Homepage Journal
      Crichton whines that the relationship between B vitamins and homocysteine is patented without appearing to have read the papers published in NEJM this week demonstrating quite persuasively that this relationship has no clinical value: vitamin B supplements for patients with high homocysteine don't affect patient outcomes.

      You are a certified, class A moron. Did you even try to understand what Crichton was saying? He's not arguing about whether the relationship has any clinical value or not; he's arguing that the patent should not have been granted.

      It is you who is whining with a poorly-researched, poorly argued post.

    • A patent can only be granted for a functional, functioning object. You can't get a patent for something that you haven't gotten to work yet. Otherwise, you could look at what people are researching, and patent what they're trying to get to work. Then, once they have made it work, you have the patent. Uh-huh. That dog won't hunt. Thus, JUST AS CRICHTON SAYS, the patent shouldn't have been granted.
    • Chiron took a big gamble and succeeded where everyone else had failed. If there were no patent rights in the offing, would we even have a Hepatitis C genome sequence to squabble over?

      So ... you're arguing that nobody ever invents anything unless it can be patented. Do you have any evidence that this assertion is true, or did you just pull it from your butt? (Obviously, you are incorrect, thus that entire paragraph can be struck out.)

      • I'm not arguing that nobody ever invents anything useful without patent rights. We get inventions with or without patent rights, but I'm arguing that there evidence (not conclusive, but not trivial either) that we get more inventions with patent rights than without them. This is the basis for having a Patent office in the first place.

        Nobody except Chiron managed either to isolate or sequence Hep-C desipite over ten years of hard work. Chiron clearly would not have had the money to do the job successfully

  • Don't worry. Whichever way the Supreme Court rules, in twenty years, all the old bullshit patents will have expired. We'll only have to deal with all the new bullshit patents.
  • So... (Score:2, Funny)

    by VisceralLogic (911294)
    I'd try to figure out what that means for me, but I'm afraid I'd violate a patent in so doing. I guess I'll just stop thinking to be on the safe side...
  • by Y-Crate (540566) on Sunday March 19, 2006 @05:37PM (#14953445)
    With the manner in which patents are granted with regard to medical advances, we are extremely lucky that such..."progress"...in the patent system did not occur any earlier.

    Established facts are now restricted property to the point where you often cannot create a test that utilizes your own techniques and methods to check for the presence of a specific gene in a patient's body, because a biotech company has patented that gene and the very knowledge of what that gene does it patentable. I would argue that naturally occurring genetic material is the best example of prior art known to mankind, but the patent office disagrees and permits companies to claim parts of your body as their own, and declare that any knowledge of said material belongs to the company in question. If the biotech company's research establishes that a gene is responsible for a certain condition, using any means to test for that gene is infringement.

    Imagine if you will, that years ago someone discovered that iron is hard and patented this exciting concept. We're not talking about a custom alloy or anything of that nature, but just pure iron. Since iron is naturally occurring people all across the globe can get their hands on it with some effort, but using the same broken standard that is currently being applied to patents in the United States today, the patent holder could sue every manufacturer and builder that used iron in any product or structure because they were operating on the belief that iron is a strong material useful for constructing things with, and thus, infringing on their intellectual property.

    Where would we be today if such standards were applied in the past, and where will we be if we allow them to remain in force?

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