Friday, September 30, 2011

Laws of logic apparently off limits in the law

Recently, I was banned from by its founder, Gene Quinn. At one time, I had posted there as a guest contributor on the issue of gene patents, but it became clear quickly that any amount of questioning or imposing even some logical limits on the reach of patent law was blasphemy to members of the IP-industrial complex. A careful scan of the materials there over time shows that anyone questioning the unbridled patentability of basically anything becomes a pariah. The entire debate for me, over the past few years, has illustrated most depressingly for me that the law has no room for logic, and expedience, profits, and power are what win the day. Let's look carefully at the current state of the debate, and why the law in this instance contradicts the most basic laws of logic.

The Law of Identity

This is one of the three basic laws of thought known since the Greeks, and understood by all rational people to be necessarily agreed upon for reasoned discourse. A=A, in all cases, without exception. As I pointed out in the ongoing discussion about the BRCA1 and 2 patents, this is a logical law disregarded in the courts through cases that allow for the patenting of "isolated" chemicals, molecules, or elements. The response of the patent professionals is "X" becomes somehow "different" when it is isolated from some substrate or complex. This is the reasoning used by those who claim that Priestley's isolation of O2 from Mercuric Oxide would result not just in a patent-eligible process for making pure O2 (which I did not contest) but also result in a patent-eligible product, namely: O2. So, let's get this straight. O2 molecules produced through photosynthesis, as opposed to those produced by the Priestley process, or perhaps the the process of electrolysis from water, are not identical. This clearly violates the law of identity, because morphologically, although completely the same, O2 does not equal O2 if and only if the process for creating them is not identical. But this violates at least two other ontological principles: sparsity, and the distinction between product and process. It unnecessarily multiplies entities (so that O2 created by electrolysis is ontologically distinct from O2 created by photosynthesis, etc.) based upon the method of creation of the particular molecules.

I posed some counterexamples that show why this chain of reasoning fails. Consider, for instance, a person created through IVF. The person remains a product of nature despite his or her method of creation. None of the attributes of that person, excepting his or her existence itself, differ from the attributes of any other person. The intention of the creator of something to create something does not itself make the object an artifact. Rather, the intention must extend to the particular form. A genetically-engineered creature, by which a specific intention to alter the natural state of the creature created is expressed, counts for creating a non-natural thing. O2 created by electrolysis has no new form, and human intention is not responsible for its form, only its origin. Believing that this is enough to create an artificial thing, worthy of the status "invention" means believing that IVF is enough to create an "artificial" human.

Let's take an example more similar to DNA and genes, and one I use in my book: a string of letters. the following string contains a sub-string:


Taking seriously the claims of the patent-professionals who support gene patenting, "madhatter" as it appears in the string is qualitatively different than "madhatter" as an "isolated" string. Assigning a variable to the string X=madhatter , they seriously argue that X does not equal X once isolated. It becomes somehow "different." This is really wonderland.

Too far upstream

This is a critical issue for new technologies, specifically in nanotech, where molecules themselves are often parts of the essential building blocks of technologies, and where the threat of patenting too far "upstream" such as in gene patents, may hinder an entire industry. The law has no bright line distinctions to draw in measuring what is too far "upstream" and ignores, once again, logic. The limitation is often cited as being a limit on patenting "abstract ideas," but this is a pleonasm. As I have argued, all ideas are abstract. The only relevant inquiry is: is it a product of nature, or is it a new, man-made artifact or process.

Which law rules?
Unfortunately, the courts and attorneys who fail to abide by basic principles of logic, or choose to ignore them when they do not suit their needs, will win unless reined in by the Supreme Court, or by legislatures. There is no separate logic for the law, or for any particular field. We cannot as a civilization engage in reasoned progress unless we agree on certain axioms, including the laws of logic. But more and more, it seems that raw power, expedience, and money win over reason, and that policy is shaped to suit the powerful, logic be damned. But still, I hope.

Saturday, July 30, 2011

Myriad case, Federal Circuit decision - reason for hope

No one can be terribly surprised that the Federal Circuit ruled essentially to continue the practice of gene patents yesterday. But there are some surprising tidbits in the various, lengthy, and somewhat contrary decisions of the three panel judges. One disappointment for gene patent proponents was the ruling on standing, which held that indeed there was standing for the plaintiffs to bring a declaratory judgment action as they did. Some hoped that the Federal Circuit would drop-kick the case on standing and never have to reach the substantive issues. Those hopes were dashed when the court concluded that there was at least one plaintiff with standing to sue based on an ongoing harm.

More surprising is the holding regarding the method claims relating to comparing or analyzing sequences, which the court struck down unanimously as unpatentable under Bilski. This is a minor win, and increases the likelihood of continued appeals as no-doubt Myriad will want to have either the en banc circuit review this, or the Supreme Court (perhaps both will happen eventually).

Unsurprising is that the court ultimately upheld their reasoning that X sometimes does not equal X. Violating the logical law of identity has been the underlying reasoning behind such ridiculous decisions as Parke-Davis (cited by the court) which established the "isolated and purified" notion by which a number of patent attorneys now are forced to argue that sometimes two morphologically identical molecules are nonetheless not identical. In continuing to strain logic, the majority decision holds that the sequence claims cover patent-eligible compositions of matter. But the silver lining is that there is division on the court, and the reasoning of the Majority, and concurrence of judge Moore, illustrate just how strained the logic has become. Moore argues that there is some significant chemical distinction between an isolated gene and a gene found in nature because at the ends of the isolated gene are nothing, whereas at the ends of the gene found in nature are more nucleotides. This does not support any claim of morphological difference between the claimed gene or gene parts and the sequence identified as occurring in nature. As I argue in my book, drawing a border does not create, automatically, a new, unique thing, especially where, as here, the information encoded in the string (which directs the functionality of a gene) is nature's own definition of a border.

Finally, Judge Bryson sees clearly the illogic of extending patent eligibility to isolated DNA, and writes a dissent to that part of the majority holding, using arguments I and others have made often.

What this means is surely that this fight is far from over, that it will be appealed, likely, to the en banc Federal Circuit and ultimately to the Supreme Court. Unfortunately, by the time a Supreme Court decision is final, Myriad will have run out the clock, having reaped its billions in profit from their unethical practice before the patent expires.

Monday, March 28, 2011

Moving on from this blog

I have really enjoyed, benefited from, and hopefully contributed to the discussion of gene patents with both my book and this blog, but I am moving ahead. My new book comes out in the next month or so, and I will be focusing my academic work more broadly on questions pertaining to meta-ethics, normative ethics, and justice. Thank you all for participating in this discussion, and for your interest in this important topic. Here's a draft cover of my new book (click on it to enlarge):
I will be updating about my future research soon. If you're interested, you can find me on Twitter.Follow drkoepsell on Twitter