Gene Patents and the ACLU

There is a very interesting article in the New York Times written by John Schwartz about a lawsuit over a patent. The patent is directed toward a specific gene, and a test to determine the presence of that gene. The gene is associated with breast cancer and the link to ovarian cancer. Myriad Genetics owns the patent for the test, which means they did all the research to develop and validate the test. Now people are complaining because the test is not as accessible as they would like. A lawsuit is the result claiming that the patent is invalid.

I have a few thoughts on this article. First, I suspect the language is a little loose because patent invalidity is a separate question than unpatentable subject matter. I have not looked at the complaint in this case, but I suspect the claim is that the subject matter (a human gene) is not patentable. I think the test developed to determine the presence of the gene is certainly patentable. As for the gene itself, that should not be patentable, but the article hints at processes used to purify samples of the gene and those processes should be patentable. I understand the frustration from people who want to get the test done, but filing a lawsuit attacking the patent does not seem like the best route. I think the best evidence of this is the fact that the ACLU gets involved. The article only mentions that the ACLU seems to claim that the matter includes some patent law, but then appears to be more of a First Amendment issue because the patent deals with "knowledge." That seems like a huge leap in logic; how does "knowledge" fall under a First Amendment free speech claim? Also, leave it to the ACLU to take a patent law question and turn it into a question of "fundamental" free speech rights. This is a classic example of what happens when the only tool you have is a hammer, everything looks like a nail. The only thing the ACLU knows is arguing for "fair" results based on supposed, claimed "rights" they find in the Bill of Rights. I am sorry there are people that would like to have the test done, but do not seem to have the opportunity to do that. However, that does not mean the patent laws should change based on this emotional, fairness reaction.

Control of IP

PC World's Christopher Breen has a nice article about an upcoming decision in a California district court regarding copyrights and the movie industry. It is a clear reminder of how important it is to control intellectual property, as evidenced by how tenaciously the movie industry wants to maintain that control. I hope RealNetworks is able to prevail in this case. It sounds like the movie industry wants to shut down RealNetworks' technology just because it is possible that it could be used for an illegal purpose. You do not outlaw hammers just because someone may use a hammer for an illegal purpose.

Lighter Side

This post will be somewhat on the lighter side. The USPTO is announcing its National Trademark Expo. I am not a big fan of the newer, more modern, U.S. Air Force logo. I like the old wings better because they looked like wings.

Copyright Pirates

At least some pirates appear to be getting justice. This report by Niklas Magnusson explains how a Swedish court ruled that copyright pirates were ordered to pay damages in relation to their website that facilitated illegal downloading of music. I am glad to see the music industry obtain justice against these companies that promote copyright infringement, and even more glad the industry has stopped trying to go after the individual consumers.

Trademark Enforcement

This is an interesting article about trademark enforcement. Obviously, trademarks are very important.

Patent Reform

The Patent Reform Act has been approved by the Senate Judiciary Committee, and Sen. Hatch does not like it. Part of me is glad that we have a senator in Utah that appreciates intellectual property, and the other (bigger) part of me wishes he did not get just about everything wrong when it comes to intellectual property. Making it more difficult for a court to find a patent claim invalid is a terrible idea. The standard is already raised to "clear and convincing" error and Sen. Hatch wants to add that it was intentional? That would not be right at all. From the other stuff I have read, I am not so sure the Patent Reform Act is such a bad idea.

Patent Reform

Reuters reports that the Senate Judiciary Committee is close to a compromise on the Patent Reform Act. From what is reported, a compromise does sound close and relatively promising. Although I would have to agree with the representative from the pharmaceutical industry: we will have to wait and see what the actual language of the bill would say. That is the only time a good analysis can be provided.

Patent Reform

The Wall Street Journal reports that the Patent Reform Act is in the Senate again. Not long ago, the Patent Reform Act was supposed to be a done deal, but they are still considering some changes, including the hotly contested damages provisions. I think this is still going to take a while. A compromise is possible, but it will take some time to find an acceptable middle-ground.

Trademark Value

Intellectual property can certainly be very valuable and this story in the Wall Street Journal is just another example. The "Budweiser" trademark is valuable enough that these two breweries have been fighting about it for a very long time. Even though the Czech brewery won this round of the battle, I doubt the war is over.

Patent Reform

The Patent Reform Act is having some trouble getting passed, and all because of the concern over limiting damages for infringement. After considering this, I would have to say that limiting damages is a bad idea. There are too many companies that could then make and sell infringing devices that would just figure the cost of damages into the cost of the device. Patent infringement would be just another cost of doing business. This is dangerous ground because not only does it allow for the much greater possibility of patent infringement, but those companies that innovate will be less inclined to innovate because they will not be able to protect their invention to the fullest extent. All in all, the Patent Reform Act is not worth the problems.