All entries for Monday 20 March 2006
March 20, 2006
Author Michael Crichton writes about the practise in patent law of assigning ownership of observed scientific patterns or fact. He describes an upcoming Supreme Court case against medical firm who used a patented fact in a publication. What was the patented fact? – "Homocysteine (an amino acid associated with heart disease) is correlated with a vitamin B-12 deficiency."
But what the Supreme Court will focus on is the nature of the claimed correlation. On the one hand, courts have repeatedly held that basic bodily processes and "products of nature" are not patentable. That's why no one owns gravity, or the speed of light. But at the same time, courts have granted so-called correlation patents for many years. Powerful forces are arrayed on both sides of the issue.
He goes on
For example, the human genome exists in every one of us, and is therefore our shared heritage and an undoubted fact of nature. Nevertheless 20 percent of the genome is now privately owned. The gene for diabetes is owned, and its owner has something to say about any research you do, and what it will cost you. The entire genome of the hepatitis C virus is owned by a biotech company. Royalty costs now influence the direction of research in basic diseases, and often even the testing for diseases. Such barriers to medical testing and research are not in the public interest. Do you want to be told by your doctor, "Oh, nobody studies your disease any more because the owner of the gene/enzyme/correlation has made it too expensive to do research?"
There are no doubt ways to justify this. However, besides the cost of time and effort required to uncover some facts or products of nature, nothing obvious comes to mind. Intuition suggests patent claims should require some value-added; some element of novelty or creativity. For example, you shouldn’t be able to point to a worm and claim it as your own. You perhaps verify the existence of a worms, then go on to devise a novel way of testing for their presence. Or maybe you could patent a unique manipulated form of worm (and the process that allowed the manipulation). But to claim rights over observations/facts/naturally occurring matter without going any further seems pretty opportunistic.