Do you have adblock enabled?
 
If you can read this, either the style sheet didn't load or you have an older browser that doesn't support style sheets. Try clearing your browser cache and refreshing the page.

(USA Today) NewsFlash Human genes not susceptible to patent trolls   (usatoday.com ) divider line
    More: NewsFlash, non-practicing entity, Myriad Genetics, biotechnology, geneticists  
•       •       •

4490 clicks; posted to Geek » on 13 Jun 2013 at 10:55 AM (3 years ago)   |   Favorite    |   share:  Share on Twitter share via Email Share on Facebook   more»


Want to get NewsFlash notifications in email?

147 Comments     (+0 »)
 
View Voting Results: Smartest and Funniest
 
2013-06-13 10:38:58 AM  
www.aceweekly.com

Deal with it
 
2013-06-13 10:40:26 AM  
Well there goes many Farkers' dreams of cloning Angelina's boobs.
 
2013-06-13 10:40:57 AM  
GOOD.
 
2013-06-13 10:42:51 AM  

Diogenes: Well there goes many Farkers' dreams of cloning Angelina's boobs.


No, you can still do that, but you have to make it freely available to everyone, I guess.
 
2013-06-13 10:43:07 AM  
Good, I think.
 
2013-06-13 10:43:19 AM  
I can't believe all 9 justices agreed!!!!
But, what does this mean, "The justices said it can patent a type of DNA that goes beyond extracting the genes from the body."
 
2013-06-13 10:45:21 AM  

raerae1980: I can't believe all 9 justices agreed!!!!
But, what does this mean, "The justices said it can patent a type of DNA that goes beyond extracting the genes from the body."


Good question.  My guess would be that they can patent artificial genes maybe, but not those that occur in nature?  Though even that is pretty vague.
 
2013-06-13 10:45:51 AM  

Angry Drunk Bureaucrat: Diogenes: Well there goes many Farkers' dreams of cloning Angelina's boobs.

No, you can still do that, but you have to make it freely available to everyone, I guess.


It's what our forefathers would have wanted. A duck and every pot and Angelina's boobs cupped in every hand
 
2013-06-13 10:49:54 AM  
Voted for this one. Way better than my headline.
 
2013-06-13 10:50:19 AM  

Blues_X: GOOD.

 
2013-06-13 10:52:14 AM  
And yes, SCOTUS said naturally occurring DNA is not patentable, but artificially created DNA can be patented.
 
2013-06-13 10:54:55 AM  
Yes! I like this ruling. Good.
 
2013-06-13 10:58:51 AM  
Good.
 
2013-06-13 10:59:03 AM  

Angry Drunk Bureaucrat: Diogenes: Well there goes many Farkers' dreams of cloning Angelina's boobs.

No, you can still do that, but you have to make it freely available to everyone, I guess.


Open source boobage?

/mamix?
 
2013-06-13 10:59:32 AM  
YAY.
 
2013-06-13 10:59:59 AM  
So my Kate Upton army project is a go?.
 
2013-06-13 11:02:08 AM  

dartben: And yes, SCOTUS said naturally occurring DNA is not patentable, but artificially created DNA can be patented.


That's weird. Computer code is covered by copyright, not patent. Artificial DNA seems like a pretty close analogue of code.

Maybe better that way, since patent only lasts about 20 years, and copyright goes for however long Disney says it does.
 
2013-06-13 11:02:30 AM  

raerae1980: But, what does this mean, "The justices said it can patent a type of DNA that goes beyond extracting the genes from the body."


You take multiple bits of naturally occurring DNA and recombine them into a new, non naturally occurring sequence.  This you can patent.
 
2013-06-13 11:03:00 AM  
I would like to think this was a no brainer, but with this court, let's just say that I am pleased.
 
2013-06-13 11:03:35 AM  
Well, there goes my plan for world domination by patenting common genes and demanding payment from all living humans for their use.
 
2013-06-13 11:03:53 AM  

HazMatt: That's weird. Computer code is covered by copyright, not patent. Artificial DNA seems like a pretty close analogue of code.


You can patent code.  People do all the time. Then people biatch about in on Fark.

Maybe better that way, since patent only lasts about 20 years, and copyright goes for however long Disney says it does.

Life of the Author +70 years was Europe's idea, not Disney's.
 
2013-06-13 11:04:13 AM  
Excellent. *increases the resolution of my 3D printer*
 
2013-06-13 11:04:57 AM  
notetofred.files.wordpress.com
I'd patent these human jeans!
 
2013-06-13 11:06:16 AM  

NYCNative: I would like to think this was a no brainer, but with this court, let's just say that I am pleased.


Mayo Collaborative Services v. Prometheus Labs pretty much clued anyone who watches in on the fact that the SCOTUS was probably going to hold this way.  Besides, the Supremes pick up Fed. Cir. cases once a session so they can beat on that court.  Its becoming tradition.
 
2013-06-13 11:07:40 AM  
Surprising decision after the Monsanto one.
 
2013-06-13 11:09:03 AM  

Rincewind53: Surprising decision after the Monsanto one.


how so?
 
2013-06-13 11:10:16 AM  

Teiritzamna: You can patent code. People do all the time. Then people biatch about in on Fark.


Actually, you can patent an idea or process that you intend to implement in code. The code itself is covered by copyright.
 
2013-06-13 11:10:32 AM  

Teiritzamna: HazMatt: That's weird. Computer code is covered by copyright, not patent. Artificial DNA seems like a pretty close analogue of code.

You can patent code.  People do all the time. Then people biatch about in on Fark.

Maybe better that way, since patent only lasts about 20 years, and copyright goes for however long Disney says it does.

Life of the Author +70 years was Europe's idea, not Disney's.


Regardless of what Europe was doing, Disney was one of the chief lobbyists pushing the last copyright extension act.  There is a reason it is known informally as the "Mickey Mouse Protection Act."

The length of copyright terms these days is a farce, a complete distortion of the balance of interests (both authors and the public) the idea of copyright was originally intended to protect.
 
2013-06-13 11:12:18 AM  

HazMatt: Teiritzamna: You can patent code. People do all the time. Then people biatch about in on Fark.

Actually, you can patent an idea or process that you intend to implement in code. The code itself is covered by copyright.


Actually, the code itself can be covered by both copyright and patent, since you can write a claim that is entirely dependent on the actual language used.
 
2013-06-13 11:12:29 AM  
Did I somehow end up in a parallel universe?  The Supreme Court coming to a unanimous decision and actually making a good ruling?

/ Still pissed about the DNA collection ruling.
 
2013-06-13 11:13:09 AM  

raerae1980: I can't believe all 9 justices agreed!!!!
But, what does this mean, "The justices said it can patent a type of DNA that goes beyond extracting the genes from the body."


You can read the decision here. The relevant type of DNA that can be patented is complementary DNA, which is defined on page 3:

DNA's informational sequences and the processes that create mRNA, amino acids, and proteins occur naturally within cells. Scientists can, however, extract DNA from cells using well known laboratory methods. These methods allow scientists to isolate specific segments of DNA-for instance, a particular gene or part of a gene-which can then be further studied, manipulated, or used. It is also possible to create DNA synthetically through processes similarly well known in the field of genetics. One such method begins with an mRNA molecule and uses the natural bonding properties of nucleotides to create a new,synthetic DNA molecule. The result is the inverse of the mRNA's inverse image of the original DNA, with one important distinction: Because the natural creation ofmRNA involves splicing that removes introns, the synthetic DNA created from mRNA also contains only the exon sequences. This synthetic DNA created in the laboratory from mRNA is known as complementary DNA (cDNA).
 
2013-06-13 11:13:09 AM  
GOOD.  So goddamned many genetic patents are going to get challenged & knocked down, now.  Genetic screening is about to get a lot cheaper.
 
2013-06-13 11:15:53 AM  
Michael Crichton is pleased.
 
2013-06-13 11:16:08 AM  
The Madd Mann: Thank you.   Now I understand :D
 
2013-06-13 11:16:35 AM  

Doc Daneeka: Regardless of what Europe was doing, Disney was one of the chief lobbyists pushing the last copyright extension act. There is a reason it is known informally as the "Mickey Mouse Protection Act."


The Sonny Bono Copyright Term Extension Act was expressly written to bring us in line with Europe and other Berne Treaty signatories.  And yes, Disney and pretty much every other riughts holder was in favor of the adjustment - because they aren't stupid.  But note how that is far different from the statement I was addressing, which was "copyright goes for however long Disney says it does"
 
2013-06-13 11:20:59 AM  

Teiritzamna: HazMatt: Teiritzamna: You can patent code. People do all the time. Then people biatch about in on Fark.

Actually, you can patent an idea or process that you intend to implement in code. The code itself is covered by copyright.

Actually, the code itself can be covered by both copyright and patent, since you can write a claim that is entirely dependent on the actual language used.


Then I shall write a program that outputs 0, 1, 10, 11, 100, 101... to be executed on some minimal Turing machine, and then applies for patent for each sequence. Fines due to me for frivolous patent claims on already patented code shall be paid for with the astounding quantities of megabucks due to me for holding patents for all other possible code.

Wait a farking minute, I hereby patent the string of artificial DNA that is equivalent to Pi in Base 4, with 0 = Adenine, 1 = Cytozine, 2= Guanine, 3 = Thymine, out to say a quadrillion digits. If any of your artificial DNA shows up in there you owe me big.
 
2013-06-13 11:21:23 AM  
I like this ruling. Just finding a new gene doesn't make it patentable, you have to change it in some way. So while you can't patent a gene when you discover it, if you alter a gene to make a transgenic product (see Monsanto, other companies) that new gene is patentable. It makes sense to me.
 
2013-06-13 11:21:39 AM  

Rincewind53: Surprising decision after the Monsanto one.


The Monsanto decision wasn't really about genetics at all. The farmer was creating more of a product without paying royalties or fees. It just happens that as a living thing the product was self-reproducing. It would be the same as if you bought a toaster and then started selling copies of it without paying the original creator.

I don't really like Monsanto at all but I understand why the court ruled the way it did on that case.
 
2013-06-13 11:23:35 AM  
Mickey Mouse enters the public domain in 2019, I believe. Look for a new copyright extension law in 2018.
 
2013-06-13 11:23:40 AM  

oldfarthenry: [notetofred.files.wordpress.com image 397x216]
I'd patent these human jeans!


Peopleofwalmart.com already has that patent...and believe me, you don't want to infringe upon it!
 
2013-06-13 11:23:57 AM  

HazMatt: Teiritzamna: HazMatt: Teiritzamna: You can patent code. People do all the time. Then people biatch about in on Fark.

Actually, you can patent an idea or process that you intend to implement in code. The code itself is covered by copyright.

Actually, the code itself can be covered by both copyright and patent, since you can write a claim that is entirely dependent on the actual language used.

Then I shall write a program that outputs 0, 1, 10, 11, 100, 101... to be executed on some minimal Turing machine, and then applies for patent for each sequence. Fines due to me for frivolous patent claims on already patented code shall be paid for with the astounding quantities of megabucks due to me for holding patents for all other possible code.

Wait a farking minute, I hereby patent the string of artificial DNA that is equivalent to Pi in Base 4, with 0 = Adenine, 1 = Cytozine, 2= Guanine, 3 = Thymine, out to say a quadrillion digits. If any of your artificial DNA shows up in there you owe me big.


You'd have to show functionality and use otherwise ever peptide I've ever made in lab would be patentable.  However, they only end up patenting the ones they could conclusively show that they did something useful.
 
2013-06-13 11:24:40 AM  

HazMatt: Then I shall write a program that outputs 0, 1, 10, 11, 100, 101... to be executed on some minimal Turing machine, and then applies for patent for each sequence. Fines due to me for frivolous patent claims on already patented code shall be paid for with the astounding quantities of megabucks due to me for holding patents for all other possible code.

Wait a farking minute, I hereby patent the string of artificial DNA that is equivalent to Pi in Base 4, with 0 = Adenine, 1 = Cytozine, 2= Guanine, 3 = Thymine, out to say a quadrillion digits. If any of your artificial DNA shows up in there you owe me big.


You can certainly try.  Of course you will likely run into problems with 35 U.S.C.  § 101 Utility and Patentable Subject Matter and §
 
2013-06-13 11:24:55 AM  

dartben: And yes, SCOTUS said naturally occurring DNA is not patentable, but artificially created DNA can be patented.


That is good. Patent should go to the creator of said DNA.


/Now for someone to try and patent DNA on some deity's behalf
 
2013-06-13 11:25:46 AM  

Teiritzamna: Life of the Author +70 years was Europe's idea, not Disney's.


And we all know that we have to do anything Europe does, if it benefits a corporation somewhere.
 
2013-06-13 11:26:01 AM  

Teiritzamna: HazMatt: Then I shall write a program that outputs 0, 1, 10, 11, 100, 101... to be executed on some minimal Turing machine, and then applies for patent for each sequence. Fines due to me for frivolous patent claims on already patented code shall be paid for with the astounding quantities of megabucks due to me for holding patents for all other possible code.

Wait a farking minute, I hereby patent the string of artificial DNA that is equivalent to Pi in Base 4, with 0 = Adenine, 1 = Cytozine, 2= Guanine, 3 = Thymine, out to say a quadrillion digits. If any of your artificial DNA shows up in there you owe me big.

You can certainly try.  Of course you will likely run into problems with 35 U.S.C.  § 101 Utility and Patentable Subject Matter and §

112 Enablement.  Of course you can likely find some attorney to charge you the cash draft such dead on arrival claims . . .

Weird cut off there
 
2013-06-13 11:27:14 AM  

Teiritzamna: Doc Daneeka: Regardless of what Europe was doing, Disney was one of the chief lobbyists pushing the last copyright extension act. There is a reason it is known informally as the "Mickey Mouse Protection Act."

The Sonny Bono Copyright Term Extension Act was expressly written to bring us in line with Europe and other Berne Treaty signatories.  And yes, Disney and pretty much every other riughts holder was in favor of the adjustment - because they aren't stupid.  But note how that is far different from the statement I was addressing, which was "copyright goes for however long Disney says it does"


I think the point is that the extension was driven by lobbyists for rights holders.  Disney is a big part of that push.  Hell, it even made national news for about 12 hours.
 
2013-06-13 11:28:43 AM  

dartben: Mickey Mouse enters the public domain in 2019, I believe. Look for a new copyright extension law in 2018.


humorously enough, they really don't need it:

the fact that a copyrightable character or design has fallen into the public domain should not preclude protection under the trademark laws so long as it is shown to have acquired independent trademark significance, identifying in some way the source or sponsorship of the goods.  Frederick Warne & Co. v. Book Sales, Inc.

trademark lasts forever and trust me that Disney has trademarked all the classic characters.
 
2013-06-13 11:31:22 AM  

Marcus Aurelius: I think the point is that the extension was driven by lobbyists for rights holders. Disney is a big part of that push. Hell, it even made national news for about 12 hours.


This is true - but it also a lot of spin.  The SBCTEA was going to happen regardless, because it represented an imbalance in protections for copyrighted works in the two biggest markets for those works.  Of course actually knowing about international copyright law is tricky, and saying Disney is evil is easy.  Especially because they often, in fact, are.

As a pedant i just dislike the lack of nuance.
 
2013-06-13 11:32:46 AM  

Diogenes: Well there goes many Farkers' dreams of cloning Angelina's boobs.


Given the whole cancer thing and the surgery thing, she might advise against that.
 
2013-06-13 11:34:24 AM  
Teiritzamna:
HazMatt: Wait a farking minute, I hereby patent the string of artificial DNA that is equivalent to Pi in Base 4, with 0 = Adenine, 1 = Cytozine, 2= Guanine, 3 = Thymine, out to say a quadrillion digits. If any of your artificial DNA shows up in there you owe me big.

You can certainly try.  Of course you will likely run into problems with 35 U.S.C.  § 101 Utility and Patentable Subject Matter and §


It is a string of DNA to be used in a brute force exploration for novel proteins. Seems like that has as much utility as one-click shopping or shiny rectangle with round corners.
 
2013-06-13 11:35:04 AM  

Teiritzamna: it represented an imbalance in protections for copyrighted works in the two biggest markets for those works


There's the rub.  We could just as easily have "corrected the imbalance" by SHORTENING the span.

How often does THAT happen?

/betting zero
 
2013-06-13 11:37:55 AM  
It was unanimous and Thomas wrote the opinion?

Someone get me the fainting couch.
 
2013-06-13 11:38:27 AM  
This will be corrected by the next corporate controlled congress. Damn activist judges.
 
2013-06-13 11:42:33 AM  
Wow. Unanimous common sense. In 2013.
 
2013-06-13 11:42:56 AM  

HotWingConspiracy: It was unanimous and Thomas wrote the opinion?

Someone get me the fainting couch.


Oh, don't worry; the voting-rights decision is still coming up and that'll be the 5-4 Republican ruling that brings us right back to the festering shiathole we've all gotten used to.
 
2013-06-13 11:45:08 AM  

Marcus Aurelius: Teiritzamna: it represented an imbalance in protections for copyrighted works in the two biggest markets for those works

There's the rub.  We could just as easily have "corrected the imbalance" by SHORTENING the span.

How often does THAT happen?

/betting zero


Well that would require changes in multiple European countries, so 1 we kinda lack jurisdiction there, two changing multiple laws is harder than changing one, and three the European conception of copyright is rather different, such that a tack down in term would be almost unthinkable there.
 
2013-06-13 11:46:40 AM  
okay, fine.  Patent trolls lose this round, but dont count out the gene gnomes.  they're a feisty bunch.
 
2013-06-13 11:47:25 AM  

Teiritzamna: dartben: Mickey Mouse enters the public domain in 2019, I believe. Look for a new copyright extension law in 2018.

humorously enough, they really don't need it:

the fact that a copyrightable character or design has fallen into the public domain should not preclude protection under the trademark laws so long as it is shown to have acquired independent trademark significance, identifying in some way the source or sponsorship of the goods.  Frederick Warne & Co. v. Book Sales, Inc.

trademark lasts forever and trust me that Disney has trademarked all the classic characters.


Yeah, but trademark doesn't prevent derivative works. If people want to write and sell fan fiction where Mickey mouse meets Tom Sawyer, he needs to be in the public domain.

It would be interesting to see what trumps what if it came to a legal battle between copyright allowing derivative works and trademark protections.
 
2013-06-13 11:49:09 AM  

dartben: Teiritzamna: dartben: Mickey Mouse enters the public domain in 2019, I believe. Look for a new copyright extension law in 2018.

humorously enough, they really don't need it:

the fact that a copyrightable character or design has fallen into the public domain should not preclude protection under the trademark laws so long as it is shown to have acquired independent trademark significance, identifying in some way the source or sponsorship of the goods.  Frederick Warne & Co. v. Book Sales, Inc.

trademark lasts forever and trust me that Disney has trademarked all the classic characters.

Yeah, but trademark doesn't prevent derivative works. If people want to write and sell fan fiction where Mickey mouse meets Tom Sawyer, he needs to be in the public domain.

It would be interesting to see what trumps what if it came to a legal battle between copyright allowing derivative works and trademark protections.


I should say trademark doesn't explicitly prevent derivative works.
 
2013-06-13 11:49:23 AM  

HazMatt: It is a string of DNA to be used in a brute force exploration for novel proteins. Seems like that has as much utility as one-click shopping or shiny rectangle with round corners.


Alas, under 101, this wouldn't count as substantial utility allowing grant of a patent:

"[A]n application must show that an invention is useful to the public as disclosed in its current form, not that it may prove useful at some future date after further research. Simply put, to satisfy the 'substantial' utility requirement, an asserted use must show that the claimed invention has a significant and presently available benefit to the public."  In re Fisher, 421 F.3d 1365, 1371 (Fed. Cir. 2005).  This requirement has been read to indicate that general discoveries that can further research that will lead to actually useful products. 

The easiest way to see the distinction is that in one you have a discovery that may prove useful after further research.  In the other you have a discovery that has present (even if minimal) use to the public.
 
2013-06-13 11:52:46 AM  

Teiritzamna: Marcus Aurelius: Teiritzamna: it represented an imbalance in protections for copyrighted works in the two biggest markets for those works

There's the rub.  We could just as easily have "corrected the imbalance" by SHORTENING the span.

How often does THAT happen?

/betting zero

Well that would require changes in multiple European countries, so 1 we kinda lack jurisdiction there, two changing multiple laws is harder than changing one, and three the European conception of copyright is rather different, such that a tack down in term would be almost unthinkable there.


So why exactly did we need to "correct the imbalance" if that's the case?

/already know the answer
//campaign contributions and lobbyists
 
2013-06-13 11:53:07 AM  

dartben: Yeah, but trademark doesn't prevent derivative works. If people want to write and sell fan fiction where Mickey mouse meets Tom Sawyer, he needs to be in the public domain.


The trick here is sell.  You could not indicate that you were selling a story that included mickey mouse.  If you did, Disney could sue you for trademark infringement because you would be confusing consumers as to the source of the work.

Thus you could likely have MM in a cameo style role, but if he were to be a main character, you would have to sell the work without actually indicating that he was in it.  Also if it were a visual work, there is some solid case law suggesting that even depicting him within the work could count as a form of post-sale confusion.

Personally i think that doctrine is an abomination and the one black mark against standard trademark law, but it is out there and i am sure Disney would avail themselves of it.
 
2013-06-13 12:02:18 PM  

Teiritzamna: dartben: Yeah, but trademark doesn't prevent derivative works. If people want to write and sell fan fiction where Mickey mouse meets Tom Sawyer, he needs to be in the public domain.

The trick here is sell.  You could not indicate that you were selling a story that included mickey mouse.  If you did, Disney could sue you for trademark infringement because you would be confusing consumers as to the source of the work.

Thus you could likely have MM in a cameo style role, but if he were to be a main character, you would have to sell the work without actually indicating that he was in it.  Also if it were a visual work, there is some solid case law suggesting that even depicting him within the work could count as a form of post-sale confusion.

Personally i think that doctrine is an abomination and the one black mark against standard trademark law, but it is out there and i am sure Disney would avail themselves of it.


They'd still have to prove confusion. If you put a big "this is not a Disney product" in bold letters on the cover, or something like that, it would at least be arguable.

Right now you can't even get to that point
 
2013-06-13 12:02:44 PM  

Marcus Aurelius: So why exactly did we need to "correct the imbalance" if that's the case?

/already know the answer
//campaign contributions and lobbyists


One answer given by congress was that the resulting trade imbalance would harm American business as we would be the largest exporter of copyrighted works with the lowest protection margin in the developed world.  This would result in a system where, supposedly, American artists would be barred from using, would forced to pay for European works for 25 extra years, while European artists would be able to use similarly aged American works for free.

Make of this what you will - i sure don't fully by it as a justification - but i still save my ire for the European model of moral rights and the general disdain for the public domain it represents, which is just dumb.
 
2013-06-13 12:04:08 PM  

Teiritzamna: dartben: Mickey Mouse enters the public domain in 2019, I believe. Look for a new copyright extension law in 2018.

humorously enough, they really don't need it:

the fact that a copyrightable character or design has fallen into the public domain should not preclude protection under the trademark laws so long as it is shown to have acquired independent trademark significance, identifying in some way the source or sponsorship of the goods.  Frederick Warne & Co. v. Book Sales, Inc.

trademark lasts forever and trust me that Disney has trademarked all the classic characters.


Doesn't trademark have the drawback that one must defend it or risk losing it? Pretty sure that's not the case with copyright.
 
2013-06-13 12:04:38 PM  
SCOTUS broke its losing streak.  Huzzah!
 
2013-06-13 12:07:26 PM  

dartben: They'd still have to prove confusion. If you put a big "this is not a Disney product" in bold letters on the cover, or something like that, it would at least be arguable.


Oh sure, but 1) even with messages up the yin-yang they are likely to prevail because i dont know of any works that match their level of secondary meaning (express statements of non-infringement do not as a matter of law defeat claims of trademark infringement, and you would be surprised at the number of cases where parties stating "this is not an X" product lost, and 2) try to write your fan fic and weather a multi-million dollar lawsuit to do it.  Disney has the coffers and the legal savy to know that even if you could win, it would likley be so economically prohibitive to try that you will just write something else.
 
2013-06-13 12:09:03 PM  

AndreMA: Doesn't trademark have the drawback that one must defend it or risk losing it? Pretty sure that's not the case with copyright.


this is true.  However Disney, I think, would not mind throwing out a flurry of cease and desist notices and fighting a few court cases to show that they would take people who used their marks to the cleaners.
 
2013-06-13 12:11:44 PM  

dartben: Teiritzamna: dartben: Mickey Mouse enters the public domain in 2019, I believe. Look for a new copyright extension law in 2018.

humorously enough, they really don't need it:

the fact that a copyrightable character or design has fallen into the public domain should not preclude protection under the trademark laws so long as it is shown to have acquired independent trademark significance, identifying in some way the source or sponsorship of the goods.  Frederick Warne & Co. v. Book Sales, Inc.

trademark lasts forever and trust me that Disney has trademarked all the classic characters.

Yeah, but trademark doesn't prevent derivative works. If people want to write and sell fan fiction where Mickey mouse meets Tom Sawyer, he needs to be in the public domain.

It would be interesting to see what trumps what if it came to a legal battle between copyright allowing derivative works and trademark protections.


IANAL, I just took Comm Law in college, so I may be way off base here... but the way I understand it, Mickey Mouse as a concept/entity/character is trademarked, so you wouldn't be able to just arbitrarily use Mickey Mouse himself, unless it already fell under fair use anyway (parody, commentary, non-commercial, etc). There are some specific Steamboat Willie/Mickey Mouse cartoons that will fall into public domain in whatever year, and then those specific cartoons will be freely remixable/derivable. But remixing that one specific cartoon into something else doesn't mean you have free rein to use, say, the version of Mickey Mouse from Mickey Mouse Clubhouse, the current TV series.

Mickey Mouse as a character won't enter the public domain until The Walt Disney Company ceases to exist. So, on or about the 32nd of Febtober.
 
2013-06-13 12:12:06 PM  

The Madd Mann: raerae1980: I can't believe all 9 justices agreed!!!!
But, what does this mean, "The justices said it can patent a type of DNA that goes beyond extracting the genes from the body."

You can read the decision here. The relevant type of DNA that can be patented is complementary DNA, which is defined on page 3:

DNA's informational sequences and the processes that create mRNA, amino acids, and proteins occur naturally within cells. Scientists can, however, extract DNA from cells using well known laboratory methods. These methods allow scientists to isolate specific segments of DNA-for instance, a particular gene or part of a gene-which can then be further studied, manipulated, or used. It is also possible to create DNA synthetically through processes similarly well known in the field of genetics. One such method begins with an mRNA molecule and uses the natural bonding properties of nucleotides to create a new,synthetic DNA molecule. The result is the inverse of the mRNA's inverse image of the original DNA, with one important distinction: Because the natural creation ofmRNA involves splicing that removes introns, the synthetic DNA created from mRNA also contains only the exon sequences. This synthetic DNA created in the laboratory from mRNA is known as complementary DNA (cDNA).


I would just add that the real decision is the recognition of the information content of DNA. Genes were allowed to be patented under existing rulings that natural molecules are patentable if you can derive benefit from a novel isolation method. For example, insulin was patented despite being naturally occurring. This meant that people went around patenting human genes that they sequenced, saying their isolation of the sequence was an "invention." In most cases, those patents are useless, but they still exist and in some cases could probably have been enforced. This ruling says that DNA is not just a naturally occurring molecule like insulin, but the sequence of the DNA is what nature produced. So you can still patent genes that have been engineered, for example Monsanto has valid patents on its GMOs, and that is not overturned. This merely prevents patenting of naturally occurring DNA sequences.
 
2013-06-13 12:14:43 PM  

nekom: raerae1980: I can't believe all 9 justices agreed!!!!
But, what does this mean, "The justices said it can patent a type of DNA that goes beyond extracting the genes from the body."

Good question.  My guess would be that they can patent artificial genes maybe, but not those that occur in nature?  Though even that is pretty vague.


That's my take on it.

I figure they can also patent adding genes from non-human sources into humans.

So if they figure out how to fix a genetic anomaly by taking fungus DNA and inserting it into a human's genetic code, that's patentable.

Now, what happens if they patent a sequence of genes from a non-human source that is identical or near identical to a sequence of human genes?
 
2013-06-13 12:17:04 PM  

Teiritzamna: One answer given by congress


And I think we know who gave it to them.

Thanks for the education in any case!  You are as always a font of legal knowledge.
 
2013-06-13 12:17:49 PM  

raerae1980: I can't believe all 9 justices agreed!!!!


Why? Even in this relatively partisan day and age, 9-0 is still the most common outcome by a pretty wide margin.

But, what does this mean, "The justices said it can patent a type of DNA that goes beyond extracting the genes from the body."

If someone actually invents a new type of gene, that can be patented. But discovering an existing type of gene in the human body is another matter. The BRCA genes were discovered, not invented, so patents don't apply.
 
2013-06-13 12:17:56 PM  

meat0918: nekom: raerae1980: I can't believe all 9 justices agreed!!!!
But, what does this mean, "The justices said it can patent a type of DNA that goes beyond extracting the genes from the body."

Good question.  My guess would be that they can patent artificial genes maybe, but not those that occur in nature?  Though even that is pretty vague.

That's my take on it.

I figure they can also patent adding genes from non-human sources into humans.

So if they figure out how to fix a genetic anomaly by taking fungus DNA and inserting it into a human's genetic code, that's patentable.

Now, what happens if they patent a sequence of genes from a non-human source that is identical or near identical to a sequence of human genes?


They would have to patent more than just the sequence. They would have to use it for something novel and show that their new method or invention is not something trivial. I don't think the ruling is specifically for human DNA sequences. So for your fungal DNA example, they couldn't patent the fungal DNA sequence itself, but the method of inserting it into humans as a treatment.
 
2013-06-13 12:18:23 PM  

Teiritzamna: raerae1980: But, what does this mean, "The justices said it can patent a type of DNA that goes beyond extracting the genes from the body."

You take multiple bits of naturally occurring DNA and recombine them into a new, non naturally occurring sequence.  This you can patent.


I need to see the ruling. Do you have a link to the specifics. It sounds like they're letting cDNA, or the buffer copy of the PCR still lie under patent because it's synthetic. Or am I wrong?
 
2013-06-13 12:20:10 PM  

pseudoscience: meat0918: nekom: raerae1980: I can't believe all 9 justices agreed!!!!
But, what does this mean, "The justices said it can patent a type of DNA that goes beyond extracting the genes from the body."

Good question.  My guess would be that they can patent artificial genes maybe, but not those that occur in nature?  Though even that is pretty vague.

That's my take on it.

I figure they can also patent adding genes from non-human sources into humans.

So if they figure out how to fix a genetic anomaly by taking fungus DNA and inserting it into a human's genetic code, that's patentable.

Now, what happens if they patent a sequence of genes from a non-human source that is identical or near identical to a sequence of human genes?

They would have to patent more than just the sequence. They would have to use it for something novel and show that their new method or invention is not something trivial. I don't think the ruling is specifically for human DNA sequences. So for your fungal DNA example, they couldn't patent the fungal DNA sequence itself, but the method of inserting it into humans as a treatment.


I always forget that "It has to be useful" part.
 
2013-06-13 12:21:20 PM  

raerae1980: I can't believe all 9 justices agreed!!!!
But, what does this mean, "The justices said it can patent a type of DNA that goes beyond extracting the genes from the body."


The Island of Dr. MoreauTM.
 
2013-06-13 12:21:46 PM  

Marcus Aurelius: Teiritzamna: One answer given by congress

And I think we know who gave it to them.

Thanks for the education in any case!  You are as always a font of legal knowledge.


No prob - although i appear to be writing like a sub-literate howler monkey  today.  This is what happens when i dont edit and review before hitting post (somewhat busy, alas).

Have a good one.
 
2013-06-13 12:22:25 PM  

pseudoscience: meat0918: nekom: raerae1980: I can't believe all 9 justices agreed!!!!
But, what does this mean, "The justices said it can patent a type of DNA that goes beyond extracting the genes from the body."

Good question.  My guess would be that they can patent artificial genes maybe, but not those that occur in nature?  Though even that is pretty vague.

That's my take on it.

I figure they can also patent adding genes from non-human sources into humans.

So if they figure out how to fix a genetic anomaly by taking fungus DNA and inserting it into a human's genetic code, that's patentable.

Now, what happens if they patent a sequence of genes from a non-human source that is identical or near identical to a sequence of human genes?

They would have to patent more than just the sequence. They would have to use it for something novel and show that their new method or invention is not something trivial. I don't think the ruling is specifically for human DNA sequences. So for your fungal DNA example, they couldn't patent the fungal DNA sequence itself, but the method of inserting it into humans as a treatment.


The ruling as it lies confuses me because they don't invalidate cDNA coding, which lay at the heart of this case. But yes, I can live with the ruling if they've declared that sequencing is natural, but transformation isn't. It's a decent compromise.
 
2013-06-13 12:23:32 PM  
It was so clear and unanimous that they let Clarence Thomas write the opinion. Well after collaborating with him.
 
2013-06-13 12:23:51 PM  
Billie Jean still wants child support.
 
2013-06-13 12:24:26 PM  
My first thought is, "What is this going to do to the story line of Orphan Black?*
 
2013-06-13 12:25:59 PM  

Kinek: Teiritzamna: raerae1980: But, what does this mean, "The justices said it can patent a type of DNA that goes beyond extracting the genes from the body."

You take multiple bits of naturally occurring DNA and recombine them into a new, non naturally occurring sequence.  This you can patent.

I need to see the ruling. Do you have a link to the specifics. It sounds like they're letting cDNA, or the buffer copy of the PCR still lie under patent because it's synthetic. Or am I wrong?


Madd Mann posted it earlier here. They are allowing patenting of cDNA because, for example, the removal of introns makes it is a synthetic molecule. However I doubt you could just patent the cDNA copy of a gene, but I'm not sure.
 
2013-06-13 12:28:18 PM  

Kinek: Teiritzamna: raerae1980: But, what does this mean, "The justices said it can patent a type of DNA that goes beyond extracting the genes from the body."

You take multiple bits of naturally occurring DNA and recombine them into a new, non naturally occurring sequence.  This you can patent.

I need to see the ruling. Do you have a link to the specifics. It sounds like they're letting cDNA, or the buffer copy of the PCR still lie under patent because it's synthetic. Or am I wrong?


here is the relevant language:

eDNA does not present the same obstacles to patentability as naturally occurring, isolated DNA segments. As
already explained, creation of a eDNA sequence from mRNA results in an exons-only molecule that is not naturally occurring. Petitioners concede that eDNA differs from natural DNA in that ''the non-coding regions have been removed." Brief for Petitioners 49. They nevertheless argue that eDNA is not patent eligible because "[t]he nucleotide sequence of eDNA is dictated by nature, not by the lab technician." ld., at 51. That may be so, but the lab technician unquestionably creates something new when eDNA is made. eDNA retains the naturally occurring exons ofDNA, but it is distinct from the DNA from which it was derived. As a result, eDNA is not a "product of nature" and is patent eligible under §101, except insofar as very short series of DNA may have no intervening introns to remove when creating eDNA. In that situation, a short strand of eDNA may be  indistinguishable from natural DNA.

The needle the court is threading is saying that if you just isolate extant DNA there is no inventive component allowing patentability under 101.  However, if a person manipulates the DNA so that it is no longer in its natural sequence, then that is possibly protectable.  the old analogy from earlier Myriad cases is if you find a stick along a path and realize it will be useful to cook marshmallows, you have invented nothing and could never patent it (let us assume no one has ever considered doing this before).  However if you take a branch and carve some sort of spit  for the roasting of marshmallows, that change from the stick's original form to the new invention is patentable.

Kinek: The ruling as it lies confuses me because they don't invalidate cDNA coding, which lay at the heart of this case. But yes, I can live with the ruling if they've declared that sequencing is natural, but transformation isn't. It's a decent compromise.


Both cDNA and regular old DNA were patented under the Asserted patents.  and given the holding, it appears that other firms could make different variants of cDNA that would allow testing for the BRCA genes without reading onto the patents claimed by Myriad.  So its not that bad an oppinion.
 
2013-06-13 12:29:57 PM  

Teiritzamna: Kinek: Teiritzamna: raerae1980: But, what does this mean, "The justices said it can patent a type of DNA that goes beyond extracting the genes from the body."

You take multiple bits of naturally occurring DNA and recombine them into a new, non naturally occurring sequence.  This you can patent.

I need to see the ruling. Do you have a link to the specifics. It sounds like they're letting cDNA, or the buffer copy of the PCR still lie under patent because it's synthetic. Or am I wrong?

here is the relevant language:

eDNA does not present the same obstacles to patentability as naturally occurring, isolated DNA segments. As
already explained, creation of a eDNA sequence from mRNA results in an exons-only molecule that is not naturally occurring. Petitioners concede that eDNA differs from natural DNA in that ''the non-coding regions have been removed." Brief for Petitioners 49. They nevertheless argue that eDNA is not patent eligible because "[t]he nucleotide sequence of eDNA is dictated by nature, not by the lab technician." ld., at 51. That may be so, but the lab technician unquestionably creates something new when eDNA is made. eDNA retains the naturally occurring exons ofDNA, but it is distinct from the DNA from which it was derived. As a result, eDNA is not a "product of nature" and is patent eligible under §101, except insofar as very short series of DNA may have no intervening introns to remove when creating eDNA. In that situation, a short strand of eDNA may be  indistinguishable from natural DNA.

The needle the court is threading is saying that if you just isolate extant DNA there is no inventive component allowing patentability under 101.  However, if a person manipulates the DNA so that it is no longer in its natural sequence, then that is possibly protectable.  the old analogy from earlier Myriad cases is if you find a stick along a path and realize it will be useful to cook marshmallows, you have invented nothing and could never patent it (let us assume ...


huh - it appears my OCR decided it is eDNA, which as we all know is electronic DNA that became popular during the late 90s e-Everthing naming craze.
 
2013-06-13 12:32:25 PM  

the cake is a pie: dartben: Teiritzamna: dartben: Mickey Mouse enters the public domain in 2019, I believe. Look for a new copyright extension law in 2018.

humorously enough, they really don't need it:

the fact that a copyrightable character or design has fallen into the public domain should not preclude protection under the trademark laws so long as it is shown to have acquired independent trademark significance, identifying in some way the source or sponsorship of the goods.  Frederick Warne & Co. v. Book Sales, Inc.

trademark lasts forever and trust me that Disney has trademarked all the classic characters.

Yeah, but trademark doesn't prevent derivative works. If people want to write and sell fan fiction where Mickey mouse meets Tom Sawyer, he needs to be in the public domain.

It would be interesting to see what trumps what if it came to a legal battle between copyright allowing derivative works and trademark protections.

IANAL, I just took Comm Law in college, so I may be way off base here... but the way I understand it, Mickey Mouse as a concept/entity/character is trademarked, so you wouldn't be able to just arbitrarily use Mickey Mouse himself, unless it already fell under fair use anyway (parody, commentary, non-commercial, etc). There are some specific Steamboat Willie/Mickey Mouse cartoons that will fall into public domain in whatever year, and then those specific cartoons will be freely remixable/derivable. But remixing that one specific cartoon into something else doesn't mean you have free rein to use, say, the version of Mickey Mouse from Mickey Mouse Clubhouse, the current TV series.

Mickey Mouse as a character won't enter the public domain until The Walt Disney Company ceases to exist. So, on or about the 32nd of Febtober.


Trademark and copyright are two different areas of IP law. Trademarks exist to prevent customer confusion. Copyrights exist to reward artists for their creativity. A corporate logo is trademarked. A movie character is copyrighted.

The issue with Mickey Mouse is that he's both a symbol of a company and a creative work.

The trademark exists so long as a company uses it and defends it and it doesn't become genericized. A copyright created by a corporation lasts for a fixed term of years.

There are bound to be some areas where Mickey Mouse the character can be used one it enters the public domain with running afoul of Mickey Mouse, the corporate symbol of Disney.
 
2013-06-13 12:33:51 PM  

Kinek: pseudoscience: meat0918: nekom: raerae1980: I can't believe all 9 justices agreed!!!!
But, what does this mean, "The justices said it can patent a type of DNA that goes beyond extracting the genes from the body."

Good question.  My guess would be that they can patent artificial genes maybe, but not those that occur in nature?  Though even that is pretty vague.

That's my take on it.

I figure they can also patent adding genes from non-human sources into humans.

So if they figure out how to fix a genetic anomaly by taking fungus DNA and inserting it into a human's genetic code, that's patentable.

Now, what happens if they patent a sequence of genes from a non-human source that is identical or near identical to a sequence of human genes?

They would have to patent more than just the sequence. They would have to use it for something novel and show that their new method or invention is not something trivial. I don't think the ruling is specifically for human DNA sequences. So for your fungal DNA example, they couldn't patent the fungal DNA sequence itself, but the method of inserting it into humans as a treatment.

The ruling as it lies confuses me because they don't invalidate cDNA coding, which lay at the heart of this case. But yes, I can live with the ruling if they've declared that sequencing is natural, but transformation isn't. It's a decent compromise.


Yeah, it confuses me too. Here's what it says:

"They nevertheless argue that cDNA is not patent eligible because "[t]he nucleotide sequence of cDNA is dictated by nature, not by the lab technician." Id., at 51. That may be so, but the lab technician unquestionably creates something new when cDNA is made. cDNA retains the naturally occurring exons of DNA, but it is distinct from the DNA from which it was derived. As a result, cDNA is not a "product of nature" and is patent eligible under §101, except insofar as very short series of DNA may have no intervening introns to remove when creating cDNA. In that situation, a short strand of cDNA may be indistinguishable from natural DNA.9 "

So I guess the cDNA is patentable so long as it doesn't match the natural DNA sequence exactly. But I don't think this could be used in the same way as gene patents because patenting the cDNA version of a human gene wouldn't prevent others from detecting the gene sequence. I would think this is only patentable for using a synthetic cDNA copy for therapeutic purposes or similar. Interesting to see how that plays out.
 
2013-06-13 12:34:06 PM  
I wonder what happens if a patented pharmaceutical is later found to occur naturally in a plant? Does the patent go *poof*?
 
2013-06-13 12:35:25 PM  

dartben: The trademark exists so long as a company uses it and defends it and it doesn't become genericized.


The name at least is well on the way: "This is a Mickey Mouse outfit and I want out!"
 
2013-06-13 12:45:54 PM  
Will this lower the cost of the breast cancer gene test?
 
2013-06-13 12:47:11 PM  
A friend of mine argued this case before SCOTUS.  I disagreed with his client's claim, so I'm kind of torn
 
2013-06-13 12:49:13 PM  

The My Little Pony Killer: Will this lower the cost of the breast cancer gene test?


Effectively, yes. Because now others will be allowed to create similar tests, likely for cheaper. Myriad's test is very expensive relative to what it ensues, mainly because they didn't have any reason to lower the price.
 
2013-06-13 12:54:05 PM  

The Flexecutioner: okay, fine.  Patent trolls lose this round, but dont count out the gene gnomes.  they're a feisty bunch.


Technically, Myriad is not a patent troll*. They not only did the research to discover this gene, they sell testing services.

*unless we're using that over-broad "anyone I don't like is a troll" definition.
 
2013-06-13 12:54:18 PM  

raerae1980: I can't believe all 9 justices agreed!!!!
But, what does this mean, "The justices said it can patent a type of DNA that goes beyond extracting the genes from the body."


47 is the new 42: Did I somehow end up in a parallel universe?  The Supreme Court coming to a unanimous decision and actually making a good ruling?

/ Still pissed about the DNA collection ruling.


You guys know that only about 1 in 5 SCOTUS cases are decided 5-4 right?

And you know that Roberts, as a Chief Justice, is pretty well known for trying to get all the Justices to at least agree in part?
 
2013-06-13 12:57:59 PM  

Munchausen's Proxy: A friend of mine argued this case before SCOTUS.  I disagreed with his client's claim, so I'm kind of torn


He must have been on the losing side
 
2013-06-13 12:59:25 PM  

pseudoscience: The My Little Pony Killer: Will this lower the cost of the breast cancer gene test?

Effectively, yes. Because now others will be allowed to create similar tests, likely for cheaper. Myriad's test is very expensive relative to what it ensues, mainly because they didn't have any reason to lower the price.


Although they did affirm patentability of the cDNA claims... I don't know how crucial they are to testing, though.
 
2013-06-13 01:07:49 PM  
 
2013-06-13 01:11:38 PM  

weiserfireman: Munchausen's Proxy: A friend of mine argued this case before SCOTUS.  I disagreed with his client's claim, so I'm kind of torn

He must have been on the losing side


Whenever there is a unanimous decision like this one I am left wondering why the losing party pursued it all the way to the SC. Yeah, I understand they had a lot of money at stake, but Jesus...they got their asses handed to them.
 
2013-06-13 01:13:38 PM  

Theaetetus: pseudoscience: The My Little Pony Killer: Will this lower the cost of the breast cancer gene test?

Effectively, yes. Because now others will be allowed to create similar tests, likely for cheaper. Myriad's test is very expensive relative to what it ensues, mainly because they didn't have any reason to lower the price.

Although they did affirm patentability of the cDNA claims... I don't know how crucial they are to testing, though.


Usually not important.

cDNA is usually made by reverse transcribing a gene that's been expressed (turned into mRNA, with the introns (non-coding regions) spliced out).  I don't agree that it's "artificial," because it's made using a natural process, that is hijacking an enzyme produced by some viruses. This enzyme can turn RNA into DNA and is called reverse transcriptase, where most animals only have polymerase, which turns DNA to RNA and is now genes are expressed.

Anyway, most genetic disorders would be detectable through direct sequencing, which doesn't involve cDNA.  If there are disorders that are due to gene over- or under-expression, or due to splicing out the wrong subset of exons, we might need to use cDNA and that, if I'm understanding the opinion correctly, is patentable. However, often we can predict whether genes would be over/under expressed or mis-spliced due to the sequence variation, again not requiring the use of cDNA.

Frankly I don't understand how anybody thought that genes would be patentable, so the whole case is a mystery to me.  I understanding patenting the procedure, but in this case it is simply PCR and sequencing, and the latter at least is patented and frequently, easily used.
 
2013-06-13 01:14:49 PM  

pseudoscience: Kinek: pseudoscience: meat0918: nekom: raerae1980: I can't believe all 9 justices agreed!!!!
But, what does this mean, "The justices said it can patent a type of DNA that goes beyond extracting the genes from the body."

Good question.  My guess would be that they can patent artificial genes maybe, but not those that occur in nature?  Though even that is pretty vague.

That's my take on it.

I figure they can also patent adding genes from non-human sources into humans.

So if they figure out how to fix a genetic anomaly by taking fungus DNA and inserting it into a human's genetic code, that's patentable.

Now, what happens if they patent a sequence of genes from a non-human source that is identical or near identical to a sequence of human genes?

They would have to patent more than just the sequence. They would have to use it for something novel and show that their new method or invention is not something trivial. I don't think the ruling is specifically for human DNA sequences. So for your fungal DNA example, they couldn't patent the fungal DNA sequence itself, but the method of inserting it into humans as a treatment.

The ruling as it lies confuses me because they don't invalidate cDNA coding, which lay at the heart of this case. But yes, I can live with the ruling if they've declared that sequencing is natural, but transformation isn't. It's a decent compromise.

Yeah, it confuses me too. Here's what it says:

"They nevertheless argue that cDNA is not patent eligible because "[t]he nucleotide sequence of cDNA is dictated by nature, not by the lab technician." Id., at 51. That may be so, but the lab technician unquestionably creates something new when cDNA is made. cDNA retains the naturally occurring exons of DNA, but it is distinct from the DNA from which it was derived. As a result, cDNA is not a "product of nature" and is patent eligible under §101, except insofar as very short series of DNA may have no intervening introns to remove when creating cDNA. In tha ...


It's a technically fine needle, as was mentioned above. So as far as actual practical application goes, it looks like it's going to be that DNA sequencing is fine, since it functions off of exact code, while RNA sequencing is not? I'm still confused as to what their justification for striking down perfect copy DNA while drawing the line at cDNA, which is the DNA equivalent of the RNA and required to read the RNA.

I'll take it as a win though. Someone else can fight the issue of the transcriptome being patented. For now the genome is safer.
 
2013-06-13 01:15:16 PM  

Stone Meadow: weiserfireman: Munchausen's Proxy: A friend of mine argued this case before SCOTUS.  I disagreed with his client's claim, so I'm kind of torn

He must have been on the losing side

Whenever there is a unanimous decision like this one I am left wondering why the losing party pursued it all the way to the SC. Yeah, I understand they had a lot of money at stake, but Jesus...they got their asses handed to them.


Well, money for one.

Or, as in this case, the "losing party" won at the appeals court.  So they didn't pursue it up to the SCOTUS.

And there have been a lot of 9-0 cases that were actually "closer" than some 5-4 cases.
 
2013-06-13 01:16:21 PM  

Theaetetus: pseudoscience: The My Little Pony Killer: Will this lower the cost of the breast cancer gene test?

Effectively, yes. Because now others will be allowed to create similar tests, likely for cheaper. Myriad's test is very expensive relative to what it ensues, mainly because they didn't have any reason to lower the price.

Although they did affirm patentability of the cDNA claims... I don't know how crucial they are to testing, though.


I guess only time will tell. From this Businessweek article: "Potential competitors for Myriad's main hereditary breast and ovarian cancer risk test "remain unlikely to launch at risk" because the company has 24 patents on its gene tests that remain in force"

Their shares also jumped 10%, but that could also be because of the potential for all of their patents to be invalidated. They undeniably have an advantage still, but I wouldn't be surprised to see a rise in competition at some level.
 
2013-06-13 01:19:40 PM  

Theaetetus: The Flexecutioner: okay, fine.  Patent trolls lose this round, but dont count out the gene gnomes.  they're a feisty bunch.

Technically, Myriad is not a patent troll*. They not only did the research to discover this gene, they sell testing services.

*unless we're using that over-broad "anyone I don't like is a troll" definition.


it was just a reference to the headline to make a play on words.
 
2013-06-13 01:28:43 PM  

Kinek: The ruling as it lies confuses me because they don't invalidate cDNA coding, which lay at the heart of this case. But yes, I can live with the ruling if they've declared that sequencing is natural, but transformation isn't. It's a decent compromise.

Yeah, it confuses me too. Here's what it says:

"They nevertheless argue that cDNA is not patent eligible because "[t]he nucleotide sequence of cDNA is dictated by nature, not by the lab technician." Id., at 51. That may be so, but the lab technician unquestionably creates something new when cDNA is made. cDNA retains the naturally occurring exons of DNA, but it is distinct from the DNA from which it was derived. As a result, cDNA is not a "product of nature" and is patent eligible under §101, except insofar as very short series of DNA may have no intervening introns to remove when creating cDNA. In tha ...

It's a technically fine needle, as was mentioned above. So as far as actual practical application goes, it looks like it's going to be that DNA sequencing is fine, since it functions off of exact code, while RNA sequencing is not? I'm still confused as to what their justification for striking down perfect copy DNA while drawing the line at cDNA, which is the DNA equivalent of the RNA and required to read the RNA.

I'll take it as a win though. Someone else can fight the issue of the transcriptome being patented. For now the genome is safer.


I agree, it seems weird. I can understand allowing cDNAs to be patented for uses other than simply knowing the sequence, but there's no real difference between the "natural" properties of a DNA sequence versus RNA sequence. I think it gives Myriad a leg up still because they have identified a lot of mutations that others don't have access to test for and they still have protection against detection through cDNA, but there will undoubtedly be more competition now I would think. But BRCA aside, this is huge for DNA sequencing in general.
 
2013-06-13 01:35:55 PM  

pseudoscience: Kinek: The ruling as it lies confuses me because they don't invalidate cDNA coding, which lay at the heart of this case. But yes, I can live with the ruling if they've declared that sequencing is natural, but transformation isn't. It's a decent compromise.

Yeah, it confuses me too. Here's what it says:

"They nevertheless argue that cDNA is not patent eligible because "[t]he nucleotide sequence of cDNA is dictated by nature, not by the lab technician." Id., at 51. That may be so, but the lab technician unquestionably creates something new when cDNA is made. cDNA retains the naturally occurring exons of DNA, but it is distinct from the DNA from which it was derived. As a result, cDNA is not a "product of nature" and is patent eligible under §101, except insofar as very short series of DNA may have no intervening introns to remove when creating cDNA. In tha ...

It's a technically fine needle, as was mentioned above. So as far as actual practical application goes, it looks like it's going to be that DNA sequencing is fine, since it functions off of exact code, while RNA sequencing is not? I'm still confused as to what their justification for striking down perfect copy DNA while drawing the line at cDNA, which is the DNA equivalent of the RNA and required to read the RNA.

I'll take it as a win though. Someone else can fight the issue of the transcriptome being patented. For now the genome is safer.

I agree, it seems weird. I can understand allowing cDNAs to be patented for uses other than simply knowing the sequence, but there's no real difference between the "natural" properties of a DNA sequence versus RNA sequence. I think it gives Myriad a leg up still because they have identified a lot of mutations that others don't have access to test for and they still have protection against detection through cDNA, but there will undoubtedly be more competition now I would think. But BRCA aside, this is huge for DNA sequencing in general.


After seeing the original arguments, I knew Myriad was going to lose, I just didn't know how broad the argument was going to be. Myriad is undoubtedly still going to make money because they have the most research, but honestly, they don't need a patent to provide this service. But I am excited now that High throughput individual genotyping in humans is a little clearer. Hopefully in ten years we can get all three billion bases on a little chip.
 
2013-06-13 01:48:04 PM  

Kinek: It's a technically fine needle, as was mentioned above. So as far as actual practical application goes, it looks like it's going to be that DNA sequencing is fine, since it functions off of exact code, while RNA sequencing is not? I'm still confused as to what their justification for striking down perfect copy DNA while drawing the line at cDNA, which is the DNA equivalent of the RNA and required to read the RNA.

I'll take it as a win though. Someone else can fight the issue of the transcriptome being patented. For now the genome is safer.

I agree, it seems weird. I can understand allowing cDNAs to be patented for uses other than simply knowing the sequence, but there's no real difference between the "natural" properties of a DNA sequence versus RNA sequence. I think it gives Myriad a leg up still because they have identified a lot of mutations that others don't have access to test for and they still have protection against detection through cDNA, but there will undoubtedly be more competition now I would think. But BRCA aside, this is huge for DNA sequencing in general.

After seeing the original arguments, I knew Myriad was going to lose, I just didn't know how broad the argument was going to be. Myriad is undoubtedly still going to make money because they have the most research, but honestly, they don't need a patent to provide this service. But I am excited now that High throughput individual genotyping in humans is a little clearer. Hopefully in ten years we can get all three billion bases on a little chip.


Yeah, I mean the future is really in whole genome sequencing, which is already happening but is simply expensive and immature. Myriad's service is really a diagnostic test of a few known sequences, but when a whole genome sequence can be provided there's no longer any reason to do an expensive, small scale diagnostic test. They'll be profitable for some time (I think some of their main patents are almost up anyhow), but this ruling paves the way for the next generation of technology.
 
2013-06-13 01:51:27 PM  

pseudoscience: Kinek: It's a technically fine needle, as was mentioned above. So as far as actual practical application goes, it looks like it's going to be that DNA sequencing is fine, since it functions off of exact code, while RNA sequencing is not? I'm still confused as to what their justification for striking down perfect copy DNA while drawing the line at cDNA, which is the DNA equivalent of the RNA and required to read the RNA.

I'll take it as a win though. Someone else can fight the issue of the transcriptome being patented. For now the genome is safer.

I agree, it seems weird. I can understand allowing cDNAs to be patented for uses other than simply knowing the sequence, but there's no real difference between the "natural" properties of a DNA sequence versus RNA sequence. I think it gives Myriad a leg up still because they have identified a lot of mutations that others don't have access to test for and they still have protection against detection through cDNA, but there will undoubtedly be more competition now I would think. But BRCA aside, this is huge for DNA sequencing in general.

After seeing the original arguments, I knew Myriad was going to lose, I just didn't know how broad the argument was going to be. Myriad is undoubtedly still going to make money because they have the most research, but honestly, they don't need a patent to provide this service. But I am excited now that High throughput individual genotyping in humans is a little clearer. Hopefully in ten years we can get all three billion bases on a little chip.

Yeah, I mean the future is really in whole genome sequencing, which is already happening but is simply expensive and immature. Myriad's service is really a diagnostic test of a few known sequences, but when a whole genome sequence can be provided there's no longer any reason to do an expensive, small scale diagnostic test. They'll be profitable for some time (I think some of their main patents are almost up anyhow), but this ruling paves the way fo ...


That's why I was so concerned about this case. Whole genome sequencing would be shut down with death by a thousand licenses, given Myriad's patents. THe only way to sequence is with an intermediate, which was at the core here. So with this patent struck down, and hopefully other sequence patents gone, WGS won't be sued for infringement the moment you sequence a patented gene.
 
2013-06-13 01:54:32 PM  
Finally, something we can all agree on.

/drtft for those who might disagree, don't plan on rtft
 
2013-06-13 02:10:30 PM  

dartben: And yes, SCOTUS said naturally occurring DNA is not patentable, but artificially created DNA can be patented.


SCOTUS is racist against replicants, so what else is new.
 
2013-06-13 02:10:37 PM  

bacongood: Stone Meadow: Whenever there is a unanimous decision like this one I am left wondering why the losing party pursued it all the way to the SC. Yeah, I understand they had a lot of money at stake, but Jesus...they got their asses handed to them.

Well, money for one.

Or, as in this case, the "losing party" won at the appeals court.  So they didn't pursue it up to the SCOTUS.

And there have been a lot of 9-0 cases that were actually "closer" than some 5-4 cases.


How does that work? IANAL and don't even play one on Fark... ;)
 
2013-06-13 02:17:48 PM  
Speaking of patent trolls...

My company has been getting letters from one for about a year, threatening to sue us.

We got one today, saying they are no longer pursuing any new license agreements due to actions by Canon and questions about the validity of their patent.

Woohoo!
 
2013-06-13 02:24:04 PM  

Stone Meadow: How does that work? IANAL and don't even play one on Fark... ;)


I am not sure what he was referring to, but often 9-0 means either:

1) it was so blindingly obvious that all nine just had to agree

or

2) Some wanted a radical solution, others more nuanced, and a few were on the fence regarding a dissent, so the CJ gets everyone together and hammers out a compromise opinion, where no one is entirely happy, but all can mostly agree on the result.

The type 2 opiniosn may be what he was talking about, as a 5/4 can often be a majority letting rip with an ideological opinion with 4 in dissent bemoaning the end of the world, while a 9/0 opinion on the same matter would be nuanced, and minor in its impact because everyone had to come together to agree.
 
2013-06-13 02:25:44 PM  

Stone Meadow: bacongood: Stone Meadow: Whenever there is a unanimous decision like this one I am left wondering why the losing party pursued it all the way to the SC. Yeah, I understand they had a lot of money at stake, but Jesus...they got their asses handed to them.

Well, money for one.

Or, as in this case, the "losing party" won at the appeals court.  So they didn't pursue it up to the SCOTUS.

And there have been a lot of 9-0 cases that were actually "closer" than some 5-4 cases.

How does that work? IANAL and don't even play one on Fark... ;)


Well, you can get a case where the judgement is unanimous, but the reasoning is widely varying with three concurring opinions and no majority.
You can also have cases like Brown v. Board of Education, where the result is 9-0 and the court appears unianimous, but was actually the result of a whole lot of back room arguing and dealmaking in the court.
 
2013-06-13 02:41:26 PM  
Setting Mickey Mouse aside, it's interesting that almost all of Disney's classic characters were derived from other literary works.  If it wasn't for the fact that these were in the public domain due to the copyright laws at the time, there would be no Snow White, Cinderalla, etc.

Quick informative video on the history of copyright laws http://www.youtube.com/watch?v=tk862BbjWx4
 
2013-06-13 02:46:43 PM  

Stone Meadow: weiserfireman: Munchausen's Proxy: A friend of mine argued this case before SCOTUS.  I disagreed with his client's claim, so I'm kind of torn

He must have been on the losing side

Whenever there is a unanimous decision like this one I am left wondering why the losing party pursued it all the way to the SC. Yeah, I understand they had a lot of money at stake, but Jesus...they got their asses handed to them.


A lot of the losers at SCOTUS were winners below. That's why SCOTUS accepted cert in the first place
 
2013-06-13 02:48:49 PM  

Teiritzamna: Stone Meadow: How does that work? IANAL and don't even play one on Fark... ;)

I am not sure what he was referring to, but often 9-0 means either:

1) it was so blindingly obvious that all nine just had to agree

or

2) Some wanted a radical solution, others more nuanced, and a few were on the fence regarding a dissent, so the CJ gets everyone together and hammers out a compromise opinion, where no one is entirely happy, but all can mostly agree on the result.

The type 2 opiniosn may be what he was talking about, as a 5/4 can often be a majority letting rip with an ideological opinion with 4 in dissent bemoaning the end of the world, while a 9/0 opinion on the same matter would be nuanced, and minor in its impact because everyone had to come together to agree.


Theaetetus: Well, you can get a case where the judgement is unanimous, but the reasoning is widely varying with three concurring opinions and no majority.
You can also have cases like Brown v. Board of Education, where the result is 9-0 and the court appears unianimous, but was actually the result of a whole lot of back room arguing and dealmaking in the court.


Thank you both for the explanations. When I wrote "I am left wondering why the losing party pursued it all the way to the SC" I had in mind the "blindingly obvious" explanation. As in, how could they misread the tea leaves that badly? I see now that the losing side didn't bring the case to the SCOTUS, but rather got their hand forced. In any case, I too am pleased to see that naturally occurring genes can't be patented.
 
2013-06-13 03:15:47 PM  

Gone to Plaid: Setting Mickey Mouse aside, it's interesting that almost all of Disney's classic characters were derived from other literary works.  If it wasn't for the fact that these were in the public domain due to the copyright laws at the time, there would be no Snow White, Cinderalla, etc.


Indeed.

Snow White and Seven Dwarves - public domain story
Pinocchio - public domain story
Cinderella - public domain story
Alice in Wonderland - public domain story
Sleeping Beauty - public domain story
The Sword in the Stone - public domain story
The Jungle Book - public domain story
The Little Mermaid - public domain story
Beauty and the Beast - public domain story
Aladdin - public domain story
Pocahontas - public domain story
The Hunchback of Notre Dame - public domain story
Hercules - public domain story
Mulan - public domain story
Tarzan - public domain story
Robin Hood - public domain story

The Adventures of Mr. Ichabod and Mr. Toad - an adaptation of The Legend of Sleepy Hollow (a public domain story)
Oliver and Company - an adaptation of Oliver Twist (a public domain story)
Treasure Planet - an adaptation of Treasure Island (a public domain story)
The Lion King - an adaptation of Hamlet (a public domain story)
Disney built its empire on the public domain.  If any company owes its success to the existence of a vibrant and open public domain, it is Disney.

Which makes its frequent campaigning for longer copyright terms (which effectively freezes the public domain in place) especially ironic.
 
2013-06-13 03:20:31 PM  

Stone Meadow: Thank you both for the explanations. When I wrote "I am left wondering why the losing party pursued it all the way to the SC" I had in mind the "blindingly obvious" explanation. As in, how could they misread the tea leaves that badly? I see now that the losing side didn't bring the case to the SCOTUS, but rather got their hand forced. In any case, I too am pleased to see that naturally occurring genes can't be patented.


The other guys covered it.

You could also think about this way:  you and your 8 friends are going out to eat.  Everyone wants pizza, but bickering about the toppings almost destroys the evening; it was a close 9-0.  Or, four of you want pizza, but Suzie is glutan free now, Tommy just broke up with the hostess at the best pizza place in town, Fred is lactose intolarant, Jane lives on the other side of town and refuses to walk more than 4 blocks, and George is trying to get into Jane's pants, so he will do what she says... so you are getting Chinese; it was 5-4, but you were no where close to pizza.

As for "why go to the SCOTUS?".  You also have to remember patent cases are special.  They all go to the same appeals court (the Federal Circuit), and not to the nearest Court of Appeals.  So the Fed Cir will tell people what they think the law is and everyone goes along with that because no other Appeals court is disagreeing.  Every once in awhile, the Supreme Court will decide to stop by just to see how things are going in patent-land (takes a patent case up on cert).  This often ends with the SCOTUS saying, "Federal Circuit, you ignorant slut, this is not what the law is."  Then, the Federal Circuit rephrases what they were doing and generally tries it best to ignore what the SCOTUS said.  It is fun times.
 
2013-06-13 03:25:07 PM  

bacongood: This often ends with the SCOTUS saying, "Federal Circuit, you ignorant slut, this is not what the law is." Then, the Federal Circuit rephrases what they were doing and generally tries it best to ignore what the SCOTUS said. It is fun times.


Personally i refer to this as the SCOTUS's new tradition of "taking the Fed. Cir. behind the woodshed" once a session.  Just to let 'em know who is boss.

As a side point, my vote is for KSR being the most important/biggest Supreme Court on Fed. Cir. asswhooping, but what do y'all think?
 
2013-06-13 03:33:50 PM  

fustanella: Excellent. *increases the resolution of my 3D printer*


Do you look like this?

1-ps.googleusercontent.com
 
2013-06-13 03:44:47 PM  

bacongood: Stone Meadow: Thank you both for the explanations. When I wrote "I am left wondering why the losing party pursued it all the way to the SC" I had in mind the "blindingly obvious" explanation. As in, how could they misread the tea leaves that badly? I see now that the losing side didn't bring the case to the SCOTUS, but rather got their hand forced. In any case, I too am pleased to see that naturally occurring genes can't be patented.

The other guys covered it.

You could also think about this way:  you and your 8 friends are going out to eat.  Everyone wants pizza, but bickering about the toppings almost destroys the evening; it was a close 9-0.  Or, four of you want pizza, but Suzie is glutan free now, Tommy just broke up with the hostess at the best pizza place in town, Fred is lactose intolarant, Jane lives on the other side of town and refuses to walk more than 4 blocks, and George is trying to get into Jane's pants, so he will do what she says... so you are getting Chinese; it was 5-4, but you were no where close to pizza.

As for "why go to the SCOTUS?".  You also have to remember patent cases are special.  They all go to the same appeals court (the Federal Circuit), and not to the nearest Court of Appeals.  So the Fed Cir will tell people what they think the law is and everyone goes along with that because no other Appeals court is disagreeing.  Every once in awhile, the Supreme Court will decide to stop by just to see how things are going in patent-land (takes a patent case up on cert).  This often ends with the SCOTUS saying, "Federal Circuit, you ignorant slut, this is not what the law is."  Then, the Federal Circuit rephrases what they were doing and generally tries it best to ignore what the SCOTUS said.  It is fun times.


Fun times are had by all.
 
2013-06-13 03:47:24 PM  
a good ruling.
 
2013-06-13 03:50:27 PM  

Teiritzamna: bacongood: This often ends with the SCOTUS saying, "Federal Circuit, you ignorant slut, this is not what the law is." Then, the Federal Circuit rephrases what they were doing and generally tries it best to ignore what the SCOTUS said. It is fun times.

Personally i refer to this as the SCOTUS's new tradition of "taking the Fed. Cir. behind the woodshed" once a session.  Just to let 'em know who is boss.


I lean towards the "ignorant slut" explanation for purely entertainment reasons, but yeah...the woodshed explanation fits, too.
 
2013-06-13 04:05:43 PM  

Doc Daneeka: The Adventures of Mr. Ichabod and Mr. Toad - an adaptation of The Legend of Sleepy Hollow (a public domain story)


The Adventures of Mr. Toad were based on Wind in the Willows.
 
2013-06-13 04:06:57 PM  

grimlock1972: a good ruling result.


The ruling itself is pretty cursory, and relies mainly on Funk Seed, which really should have been about obviousness rather than patent eligibility.
 
2013-06-13 04:07:00 PM  

raerae1980: I can't believe all 9 justices agreed!!!!
But, what does this mean, "The justices said it can patent a type of DNA that goes beyond extracting the genes from the body."


What has been prohibited: Claiming a patent on a natural genetic sequence.
What is permitted: Patents on a synthetic sequence that is based upon or even duplicates the natural sequence.
What that means: While that company's BRCA cDNA is patented, another company could in theory legally reverse-engineer a BRCA cDNA that happens to have the same sequence, so long as it does not duplicate the process for the first cDNA. There are several different ways to get a cDNA or functional equivalent.
 
2013-06-13 04:15:09 PM  

HazMatt: Teiritzamna:
HazMatt: Wait a farking minute, I hereby patent the string of artificial DNA that is equivalent to Pi in Base 4, with 0 = Adenine, 1 = Cytozine, 2= Guanine, 3 = Thymine, out to say a quadrillion digits. If any of your artificial DNA shows up in there you owe me big.

You can certainly try.  Of course you will likely run into problems with 35 U.S.C.  § 101 Utility and Patentable Subject Matter and §

It is a string of DNA to be used in a brute force exploration for novel proteins. Seems like that has as much utility as one-click shopping or shiny rectangle with round corners.


In that case, your patent will only apply for that purpose. biatch-slapping you down for any other purpose not explicitly named and supported in the patent will be so trivial that new associates will be allowed to cut their teeth on you.
 
2013-06-13 04:18:15 PM  
COST OF TESTING SLASHED BY 75 PERCENT

But it's poor people not paying their emergency room bills that raises health care costs...
 
2013-06-13 04:25:09 PM  

Silly_Sot: In that case, your patent will only apply for that purpose. biatch-slapping you down for any other purpose not explicitly named and supported in the patent will be so trivial that new associates will be allowed to cut their teeth on you.


Actually, under modern utility law w/r/t a product claim, a party only needs to advance one specific credible and substantial utility for a claimed product.  If they can show that they did this, any other uses of the product not so disclosed are still within the ambit of the claimed product.

Hypo: You discover molecule X.  You submit a patent fully enabling X and disclose that X can reduce heart attacks by 2% when given daily.  6 months later it is discovered that X also makes your dick hard. A later party cannot claim that your patent on Molecule X does not apply to treatments for erectile dysfunction, because you have a patent on the product, not on a method of use.

Of course, a later party could always attempt to patent the method of prescribing X in some dosage for fixing a persistent case of the dangle dongle, and could even succeed if such a use was not obvious/anticipated.  In that case you would end up with blocking patents with regard to that penis based use, but the original patent still applies to all uses of X, not just the disclosed one.

I only mention all this because HazMatt was advancing what appeared to be product claims.  The real problem with what he is suggesting is that the Fed Cir has long held that research intermediate patents lack sufficient utility.  i.e. if you want a patent it is not enough to develop a widget and then claim that it could lead to more useful widgets in the future.
 
2013-06-13 04:33:19 PM  

HazMatt: Teiritzamna:
HazMatt: Wait a farking minute, I hereby patent the string of artificial DNA that is equivalent to Pi in Base 4, with 0 = Adenine, 1 = Cytozine, 2= Guanine, 3 = Thymine, out to say a quadrillion digits. If any of your artificial DNA shows up in there you owe me big.

You can certainly try.  Of course you will likely run into problems with 35 U.S.C.  § 101 Utility and Patentable Subject Matter and §

It is a string of DNA to be used in a brute force exploration for novel proteins. Seems like that has as much utility as one-click shopping or shiny rectangle with round corners.


I had almost missed this and thought we were going to have a patent thread on fark without someone horribly misunderstanding one-click or design patents... so close.
 
2013-06-13 04:36:20 PM  

bacongood: HazMatt: Teiritzamna:
HazMatt: Wait a farking minute, I hereby patent the string of artificial DNA that is equivalent to Pi in Base 4, with 0 = Adenine, 1 = Cytozine, 2= Guanine, 3 = Thymine, out to say a quadrillion digits. If any of your artificial DNA shows up in there you owe me big.

You can certainly try.  Of course you will likely run into problems with 35 U.S.C.  § 101 Utility and Patentable Subject Matter and §

It is a string of DNA to be used in a brute force exploration for novel proteins. Seems like that has as much utility as one-click shopping or shiny rectangle with round corners.

I had almost missed this and thought we were going to have a patent thread on fark without someone horribly misunderstanding one-click or design patents... so close.


I'm going to patent breathing! Then you'll all have to pay me.

Also, Thaeteus is a prat because he's wrong. /s

Does that give you a bingo Tez?
 
2013-06-13 04:36:35 PM  

oldfarthenry: [notetofred.files.wordpress.com image 397x216]
I'd patent these human jeans!


Sweetmotherofgod.jpg
 
2013-06-13 05:01:52 PM  

Kinek: Does that give you a bingo Tez?


Nope - someone needs to completely mix up copyright and patenting so we can get the top row.  And i don't count forced errors.
i80.photobucket.com
On the flip side, this was a fairly substantive thread - so huzzah.
 
2013-06-13 05:06:09 PM  
Human genes not susceptible to patent trolls

But Human genes can produce patent trolls.

Whoa.
 
2013-06-13 06:02:01 PM  

dartben: Teiritzamna: dartben: Yeah, but trademark doesn't prevent derivative works. If people want to write and sell fan fiction where Mickey mouse meets Tom Sawyer, he needs to be in the public domain.

The trick here is sell.  You could not indicate that you were selling a story that included mickey mouse.  If you did, Disney could sue you for trademark infringement because you would be confusing consumers as to the source of the work.

Thus you could likely have MM in a cameo style role, but if he were to be a main character, you would have to sell the work without actually indicating that he was in it.  Also if it were a visual work, there is some solid case law suggesting that even depicting him within the work could count as a form of post-sale confusion.

Personally i think that doctrine is an abomination and the one black mark against standard trademark law, but it is out there and i am sure Disney would avail themselves of it.

They'd still have to prove confusion. If you put a big "this is not a Disney product" in bold letters on the cover, or something like that, it would at least be arguable.

Right now you can't even get to that point


Jeff Koons

i42.tinypic.com

i41.tinypic.com

Andy Warhol

i40.tinypic.com

i41.tinypic.com

Keith Haring

i44.tinypic.com

i40.tinypic.com

These guys obviously have a valid loophole, since these are all commercial (high priced) art
 
2013-06-13 06:30:34 PM  

Ape_Stone: My first thought is, "What is this going to do to the story line of Orphan Black?*

Thank you!!!
About time someone on this thread addressed the important questions!
(I want to patent all 9 of her)

 
2013-06-13 09:40:22 PM  
Good thing there's not redundancy in the DNA code! If there was then a troll could take a naturally occurring gene sequence, swap some letters that have no biological effect, and patent that!

/Oh wait.
//Politicians aren't scientists.
///Agree with the ruling, but it's impotent.
 
2013-06-13 11:44:27 PM  
The wording re: artificially created DNA also protects companies with patents on PNA-based sequences for their diagnostic assays and those using LNAs for diagnostic and therapeutic applications.
 
2013-06-14 09:37:59 AM  
FTA: "Supreme Court decision is a win for women with genetic risk of breast and ovarian cancers, as well as geneticists and researchers who had criticized a Utah company's exclusive patent."

It most certainly is, but I wouldn't downplay how this is a win for pretty much every living person who may ever have a genetic risk of any particular disease.
 
2013-06-14 10:07:48 AM  

Teiritzamna: Silly_Sot: In that case, your patent will only apply for that purpose. biatch-slapping you down for any other purpose not explicitly named and supported in the patent will be so trivial that new associates will be allowed to cut their teeth on you.

Actually, under modern utility law w/r/t a product claim, a party only needs to advance one specific credible and substantial utility for a claimed product.  If they can show that they did this, any other uses of the product not so disclosed are still within the ambit of the claimed product.

Hypo: You discover molecule X.  You submit a patent fully enabling X and disclose that X can reduce heart attacks by 2% when given daily.  6 months later it is discovered that X also makes your dick hard. A later party cannot claim that your patent on Molecule X does not apply to treatments for erectile dysfunction, because you have a patent on the product, not on a method of use.

Of course, a later party could always attempt to patent the method of prescribing X in some dosage for fixing a persistent case of the dangle dongle, and could even succeed if such a use was not obvious/anticipated.  In that case you would end up with blocking patents with regard to that penis based use, but the original patent still applies to all uses of X, not just the disclosed one.

I only mention all this because HazMatt was advancing what appeared to be product claims.  The real problem with what he is suggesting is that the Fed Cir has long held that research intermediate patents lack sufficient utility.  i.e. if you want a patent it is not enough to develop a widget and then claim that it could lead to more useful widgets in the future.


Good explanation. I just wanted to make one quick correction:

You can't patent that molecule X; only the process/method to make it.

If another company can figure out what the molecule is (which, admittedly is rather difficult) and then come up with a new method to produce it, they can sell it as a competitor drug. Of course, this new method must produce the molecule exactly, otherwise they can't sell it, as it would not be FDA approved.

/I know of some companies that do this.
 
2013-06-14 10:40:03 AM  

mgshamster: You can't patent that molecule X; only the process/method to make it.

If another company can figure out what the molecule is (which, admittedly is rather difficult) and then come up with a new method to produce it, they can sell it as a competitor drug. Of course, this new method must produce the molecule exactly, otherwise they can't sell it, as it would not be FDA approved.

/I know of some companies that do this.


Actually, untrue.  Chemicals can be covered by both method patents and compound patents.  What you said is applicable in process/method patents but not to claims that actually cover compounds. 

As an example, here is one of the compound patents for the early AIDS drug AZT which claims molecules, not methods of making.

What you may be conflating with the above is the FDA approval process for new drugs, especially new generics which does look to the method of manufacture for approval.
 
2013-06-14 10:40:45 AM  

Teiritzamna: As an example, here is one of the compound patents for the early AIDS drug AZT which claims molecules, not methods of making.


Would help if i linked to the patent: AZT
 
2013-06-14 10:54:11 AM  
I'm confused and worried by the cDNA clause, too.

As I understand it, cellular machinery transcribes genomic DNA into messenger RNA. The "complementary" part of the term cDNA means that there's a direct, 1-1 correspondence between letters (bases) in the RNA sequence and letters (bases) in the cDNA sequence. If you have an RNA sequence, it has exactly one corresponding cDNA sequence. So in what sense is this not "patenting a naturally-occurring sequence"? It's like trying saying that you can't copyright an existing piece of literature, but you can claim copyright on a ROT13-encoded version.
 
2013-06-14 11:46:00 AM  

Teiritzamna: mgshamster: You can't patent that molecule X; only the process/method to make it.

If another company can figure out what the molecule is (which, admittedly is rather difficult) and then come up with a new method to produce it, they can sell it as a competitor drug. Of course, this new method must produce the molecule exactly, otherwise they can't sell it, as it would not be FDA approved.

/I know of some companies that do this.

Actually, untrue.  Chemicals can be covered by both method patents and compound patents.  What you said is applicable in process/method patents but not to claims that actually cover compounds. 

As an example, here is one of the compound patents for the early AIDS drug AZT which claims molecules, not methods of making.

What you may be conflating with the above is the FDA approval process for new drugs, especially new generics which does look to the method of manufacture for approval.


Is that still valid? Has that law changed in the past 20 years?  I've been told in college (you know, because professors are never wrong) - specifically pharmaceutical chemistry courses on how to design and manufacture new drugs - that molecules can't be patented. Additionally, i know some people who work at a company that tries to recreate drugs using new methods in order to create a competitor drug, specifically to go around the patent. I'll give them a text to see if I can get more details out of it; perhaps I misunderstood what they were saying last time we talked about it.
 
2013-06-14 12:09:47 PM  

mgshamster: Is that still valid? Has that law changed in the past 20 years? I've been told in college (you know, because professors are never wrong) - specifically pharmaceutical chemistry courses on how to design and manufacture new drugs - that molecules can't be patented. Additionally, i know some people who work at a company that tries to recreate drugs using new methods in order to create a competitor drug, specifically to go around the patent. I'll give them a text to see if I can get more details out of it; perhaps I misunderstood what they were saying last time we talked about it.


Speaking as someone involved in litigating a couple suits that involve molecular compound claims, yup that's the law.  Also it's pretty much always been this way.

The company you reference is likley designing around process claims which cover a specific method for making a molecule, not the molecule itself, and which often last long after any patents on the molecule have expired (because a new method of manufacturing can be developed years or even decades after the invention of the original drug).
 
2013-06-14 12:56:04 PM  

jfarkinB: I'm confused and worried by the cDNA clause, too.

As I understand it, cellular machinery transcribes genomic DNA into messenger RNA. The "complementary" part of the term cDNA means that there's a direct, 1-1 correspondence between letters (bases) in the RNA sequence and letters (bases) in the cDNA sequence. If you have an RNA sequence, it has exactly one corresponding cDNA sequence. So in what sense is this not "patenting a naturally-occurring sequence"? It's like trying saying that you can't copyright an existing piece of literature, but you can claim copyright on a ROT13-encoded version.


I don't think it's entirely clear what the scope of that part of the ruling will be yet. But I think the point is that most genes are patented simply in terms of the sequence, and that is no longer valid. With a cDNA, that is a synthesized molecule that does not occur in nature - the original DNA exists and the transcribed RNA exists, but the cDNA copy of the RNA, which no longer matches the original DNA because introns are removed, is man-made. So this doesn't allow for the patenting of the actual sequence, but of the man-made molecule which can be used as a probe, for instance. Others can still study the gene and its RNA, but the actual cDNA probe would be protected for whatever novel purpose.
 
2013-06-14 01:07:24 PM  

Teiritzamna: mgshamster: Is that still valid? Has that law changed in the past 20 years? I've been told in college (you know, because professors are never wrong) - specifically pharmaceutical chemistry courses on how to design and manufacture new drugs - that molecules can't be patented. Additionally, i know some people who work at a company that tries to recreate drugs using new methods in order to create a competitor drug, specifically to go around the patent. I'll give them a text to see if I can get more details out of it; perhaps I misunderstood what they were saying last time we talked about it.

Speaking as someone involved in litigating a couple suits that involve molecular compound claims, yup that's the law.  Also it's pretty much always been this way.

The company you reference is likley designing around process claims which cover a specific method for making a molecule, not the molecule itself, and which often last long after any patents on the molecule have expired (because a new method of manufacturing can be developed years or even decades after the invention of the original drug).


Thanks for the clarification. :)
 
Displayed 147 of 147 comments

View Voting Results: Smartest and Funniest

This thread is archived, and closed to new comments.

Continue Farking
Submit a Link »
On Twitter






In Other Media


  1. Links are submitted by members of the Fark community.

  2. When community members submit a link, they also write a custom headline for the story.

  3. Other Farkers comment on the links. This is the number of comments. Click here to read them.

  4. Click here to submit a link.

Report