Recently, I was banned from IPWatchdog.com 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.