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« Vanderbilt and Michigan Join Sigma-Aldrich RNAi Program | Main | Innogenetics, N.V. v. Abbott Laboratories (W.D. Wis. 2007) »

January 29, 2007

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I haven't seen the particular article in question, but based on other articles pertaining to patents that I've seen written in the NYT from time to time, it sounds like the criticism is on point. One thing you might want to clarify about Canavan: my understanding is that the issue was not that the families who had donated tissue from their dead children wanted to profit off identification of the gene that causes the disease. The issue was that they had donated the tissue in the hopes that, by being identifying the gene, pre-natal testing would be available for potential couples, in the same way that testing for Tay-Sachs is available, on the assumption that such testing would be available at cost, as is the case with Tay-Sachs testing. The parents were blindsided - they had no idea that the hospital where the researcher worked would patent the gene, let alone that the hospital would demand a significantly royalty on each test to identify the gene -- $25 a pop, if memory serves me. I thought the hospital was pretty disguisting in its behavior, and that the parents had a decent case for unjust enrichment (but not patent invalidity - nothing wrong with the patent per se, as far as I know), but when all is said and done, the gene *was* identified. Thus, even if the sides hadn't settled and the hospital continued to demand royalties, the patents would eventually have have expired, leaving parties free to provide testing at cost. I'd call that progress over the time when the gene hadn't yet been identified.

"despite plenteous evidence to the contrary"

It seems to me a broad general statement like that requires some proof. Surely a few miserly links could be thrown in, after all, they must be plenteous.

DJF:

I didn't intend to imply that the parents were trying to profit from their children's disease, and I'm glad you pointed this out. As you correctly relate, the issue was that when the gene was patented it supported a genetic test for the carriers of the condition (like Tay-Sachs) and that the company that produced the test was charging for it. I think this was a case of a big misunderstanding on the parents' part, and perhaps a lack of the kind of "informed consent" on the hospital's part - but I also think the science of this was done a long time ago, when administrators were not as savvy about the commercial aspects of these types of discovery.

Thanks for the comment.

Dear anonymous:

How about Eolas v. Microsoft:

www.patentlyo.com/patent/2004/12/eolas_v_microso.html

Eolas was a small company that licensed patents from the University of California, and they took on Microsoft and won.

Another indication would be to compare the number of granted US patents (and even better, published applications) to individuals in the US versus Europe. It is rare to find individuals filing applications in Europe, while it is common in the US.

The point is: patents have a different place culturally in the U.S. than in Europe - didn't you learn in grade school about Eli Whitney and the cotton gin, and McCormack and the thresher, and Morse, and Bell, and Edison? You didn't hear about AT&T, Western Union, International Harvester, or ComEd, because in the US the cart isn't before the horse, and we think of the inventors first when we think of their inventions.

Having said that, I don't dispute that big business invests in patents - that's to be expected. But if you look at the amicus briefs in Supreme Court cases where the issue comes down to limiting patent scope, it is usually big business's position in favor of the limitation. That's because they have the economic clout to prevail in the marketplace, and the "little guy" needs the patent system to protect her/her invention.

Hope this provides some background to the statement.

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