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(USA Today) NewsFlash Human genes not susceptible to patent trolls   (usatoday.com) divider line 147
    More: NewsFlash, non-practicing entity, Myriad Genetics, biotechnology, geneticists  
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4479 clicks; posted to Geek » on 13 Jun 2013 at 10:55 AM (1 year ago)   |  Favorite    |   share:  Share on Twitter share via Email Share on Facebook   more»


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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. :)
 
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