Saturday, December 22, 2012

From "Frivolous" to the Supreme Court

A few years ago I got lucky, in a way. In 2006 I worked as a fellow at the Yale Center for Bioethics and wrote what came to be published as Who Owns You? The Corporate Gold Rush to Patent Your Genes (Wiley-Blackwell 2009). A few months after it was released, the ACLU helped spearhead a lawsuit against Myriad Genetics for their patents over the BRCA1 and 2 genes. My incredibly lucky timing catapulted me into an important international debate about the patent-eligibility of isolated but otherwise unmodified genes in a way I never anticipated. In the process, I took a lot of heat. Everyone who has spoken up against the practice of seeking and granting patents on genes has taken heat from IP-maximalists, typically patent attorneys, for whom the unimpeded expectation of being able to apply for a patent on nearly everything is an important source of income. Looking back on the headlines in those blogs that decried the lawsuit and books and articles like mine is telling. The lawsuit was called "frivolous," a heady charge for attorneys who can be sanctioned personally for taking part in cases that have no merit. I was called a liar, as have others. We were alleged to neither understand the law nor understand the science. Since then, both scientists and lawyers, including patent attorneys, have chimed in on the side of the ACLU, but no matter.

At the time I was taken aback. I had expressed a point of view that was backed, I felt and argued, by both the law and reason. I believed and argued that claims (the part of the patent that specifies what is monopolized) encompassed parts of nature, despite the allegations by patent professionals and a string of case dictum that "isolation" equaled invention. The arguments in both the court case and my book, and popping up regularly in articles and now other books, were not lies. They were points of view based upon reasoned arguments. The lawsuit, it turns out, was not frivolous. In fact, the Supreme Court will now grapple with it. It is important, it seems, to the highest court in the U.S.

At the time I found myself defending my work against those who resorted (and still do) to attacking me rather than countering my arguments, I had no clue what motivated the vitriol and attempts to personally smear me. I made the mistake of lashing out. I should have been more patient. Time, it seems, and the strength of good reason is also a powerful weapon. The principals at the ACLU and the named plaintiffs in the case have taken much abuse too, and they have a personal stake in the lawsuit. Soon, the Supreme Court will hear and consider arguments, and amicus (friend of the court) briefs will be submitted by parties on various sides. In the past couple years, in cases like Bilski and Prometheus, similar vitriol has been lobbed at the Supreme Court for reining in the IP-maximalists, and limiting the realm of patentability in rational ways. Recently, some have argued that the Supreme Court is simply not qualified to deal with the issue of patents. This by the same people who like to remind us that intellectual property laws have some basis in the Constitution. The highest constitutional court is, of course, the Supreme Court, and their role is to interpret all our federal laws in light of the Constitution.

I don't know what the Supreme Court will do, but it is heartening to know that there are others who believe this is an important issue, grounded in real logical and legal concerns, with room for argument, and compelling and uncertain enough to warrant the Supreme Court's attention and decision. My heartfelt thanks go to those who have fought the actual hard fight, and got the case as far as it has gone, and have endured worse attacks, steadfastly promoted arguments that many of us feel are correct, and sought real change. I am honored to be in good company, and now bear no ill will toward any of those who have sought to diminish me or my arguments. What matters is commitment, and honesty, and what will decide the day in the courts will be some sort of reason. Whichever side does not prevail should be held in no contempt. We must recognize that those on both sides (or perhaps there is a spectrum since I originally argued for a very moderate view, in my opinion, in which cDNA, for instance, was patent eligible), should be honored for making fair arguments, based on precedent and reason, for honest purposes.

May reason prevail.

Wednesday, December 12, 2012

Artificially produced natural products, SCOTUS in the Nineteenth Century got it right

H/T to Douglas Rogers who dared speak reason at IPWatchdog regarding the Myriad case, and who referenced an interesting Supreme Court case from 1884 -

Cochrane v. Badische Anilin & Soda Fabrik - 111 U.S. 293 (1884)

That case involved a challenge to a patent on an artificially produced chemical otherwise found in nature, and stated in relevant part:

"There is another view of the case. According to the description in No. 95,465, and in No. 4,321, and the evidence, the article produced by the process described was the alizarine of madder, having the chemical formula C14H8O4. It was an old article. While a new process for producing it was patentable, the product itself could not be patented, even though it was a product made artificially for the first time, in contradistinction to being eliminated from the madder root. Calling it artificial alizarine did not make it a new composition of matter, and patentable as such, by reason of its having been prepared artificially, for the first time, from anthracine, if it was set forth as alizarine, a well known substance. Wood Paper Patent, 23 Wall. 566, 90 U. S. 593."

By this reasoning, those who argue that O2, when artificially produced, is suddenly not a product of nature, and thus patent-eligible under Sec 101 are simply wrong. O2 is not new, we didn't design it. Nor are the strings of nucleotides claimed in the Myriad case, despite those who allege the claims encompass "new molecules." As we have noted here before, what makes a gene a gene is its part in producing proteins, the mechanism of which is coded into the gene with stop and promoter codons. Isolating that gene from its surrounding substrate, the genome as a whole, does nothing to make it a new "molecule." Unlike other molecules, the role and use of a gene is informational, and nothing done while isolating the gene from the surrounding genome alters its informational role, we simply use the information for a new purpose. It is mere sophistry to allege this creates a new thing worthy of protection under patent.

Tuesday, November 20, 2012

Myriad's Ways - in SCOTUS's sights

The Supreme Court has been collecting amicus (friend of the court) briefs and has put the matter of the AMP v. Myriad appeal on its calendar for a conference. This means that they will consider the request by AMP and the other plaintiffs/petitioners for review of the decision of the CAFC (the appellate court that most recently heard and decided the case). We should therefore know in December or at the latest early in the new year whether they will listen to an appeal.

One brief, by the Cancer Council of Australia, includes language I helped draft, as well as a reference to my book. While no one can predict with certainty what the Supreme Court will do, I have a strong suspicion they will choose to listen to the case, both due to its importance regarding medicine, but also because it serves as a good follow-up case to the Mayo case we have discussed here, which involved patentability of laws of nature. The Myriad appeal will give the Supreme Court a chance to make clear their position on products of nature as well. My friends at Patent Docs have collected links to all the briefs here.

** UPDATE** The Supreme Court had granted the petition for certiorari, which means it will hear the appeal!

Tuesday, October 2, 2012

In the Meantime...

I decided while we wait for things to happen in the Myriad appeal to post the selection below, a Foreword I wrote for the upcoming book A Question Mark Above the Sun by Kent Johnson, to be released in the next few weeks by Starcherone Books. Because the question of "creation" is vital to my argument about rights of inventors over sequences they didn't write, but merely found and copied, I thought readers of this blog might see the nexus between authorship, creativity, and ownership in other media. I loved writing this, and hope you'll enjoy, and I urge you to support Kent Johnson by buying his book, because it's great:

A Question of Authorship?
David Koepsell

The relations between authors and texts are as complicated as any human relationships – perhaps even more so. Who counts as an author, and what connects the author and a text once written are much debated, and long have been. Academic arguments, for instance, about the “true” author of Shakespeare’s work rage still, many hundreds of years after the canon was written. Arguments in academia often focus about who counts as an author, and who should be so named on journal articles. Credit for authorship is a much older, established right for which duties might be owed than, for instance, the relatively modern institution of copyright. But the connection between author and work has always been tentative, and theories of literary criticism have wavered between those who insist upon authorship’s critical importance and others who maintain the absolute irrelevance of questions of authorship or author’s intention. Simply put: should we care who wrote something, really? Does it ultimately matter? And to what extent are authors really responsible for a text, or owed some duty of attribution? Finally, are “errors” of attribution harmful? These are deeply philosophical questions of ethical import raised intriguingly in the following pages by Kent Johnson. But before we get to “his” text, I’d like to address the fundamental, metaphysical and ethical issues underlying both his work and the controversy around which it dances so eloquently.

For almost two decades now I have turned my attention to the metaphysics of expressions. Specifically, I have been interested in what counts as an expression, and how expressions differ from other sorts of things. In that time I have mostly concentrated upon the legal category we call “intellectual property,” which most of us know as copyrights, patents, and trademarks. In the course of this work I’ve come to a theory of expression that has implications broader than IP law, which concerns legal monopolies to profit from expressions. My work has led me to critique the foundations of IP law for various reasons that are not relevant to this text. But the broader implication of what I have come to believe is, namely: expressions, once expressed, do not belong to the author. To get to this point, and its obvious implications for the remarkable events behind A Question Mark Above the Sun, let’s look at what it means to be an author, and what an expression is, stripped down to their elemental forms, and without worrying for the moment about what we think ought to be the case.

An expression is the extension of some idea into the “real” world. Ideas exist as thoughts in minds until they are expressed, and then they take on lives of their own. In fact, this is why modern intellectual property (IP) laws were created: because once an expression “leaves” the author, it is simply no longer physically (and maybe morally) beyond the realm of his or her dominion. The expression is free for all to adopt, appropriate, alter, or re-express. So we should be skeptical of claims about any “exact” connection between an author and an expression. This is certainly true for expressions that have been around a long time. The works of Homer, for instance. Homer’s works were recited for ages before they were written down as poems and songs that were part of an oral tradition that predated modern, mass-produced copies of either. Whose expression is “The Illiad”? even assuming a largely mythical Homer did exist, “his” epic poetry was told and re-told many thousands of times, doubtless changing over time, with new riffs and tweaks added by balladeers over the ages before someone first published a written copy, or before a standard Homeric canon was created some centuries later. Then translated, the meanings and nuances added or lost are the result of the translators. Whose voice remains? Is it Homer?

Of course Homer’s works are no longer truly Homer’s, and may never have been. In a very real sense, they ceased to be Homer’s (or the author(s)?) once released into the wild. There they took on new forms, and their current iteration, while still attributed to some author we call “Homer” (or someone, the joke goes, not Homer but with the same name) is a text whose authorship is very much literally doubtful. It is the work of legions, now, unnamed and unimportant in the grand scale of literature. Works such as Homer’s, like the Bible, for example, historically remote and oft-changed, altered and translated over millennia, are most clearly distinct from the expressions of their “original” authors. These sorts of works raise not just metaphysical, but ethical questions about the role and importance of authorship to a particular text. Does it matter, for instance, if Homer did not write, originally some particular verse or phrase, or for that matter, Homer’s works in their entirety? Is there some right or duty relating to the first expression of some idea, and its ultimate fortune?

While we may be responsible for our expressions when they are made, the root of that responsibility is in the choice of making the expression and in its initial content. It is a terrible risk to express an idea, one imbued with more chance of failure, ridicule, and numerous other potential liabilities than with “success.” Success generally means finding an audience that appreciates or at least acknowledges the expression. Most expressions drift away into the winds, never to be remembered. This is often thought of as the worst sort of failure for an author. But is this sort of failure linked to the fate of the expression, or the fate of the expression’s linkage to the author? The answer to this, which is in many ways the question underlying Kent Johnson’s musings and research, depends on what is important to the author as much as what is appreciated by an audience. What if there is no one “Homer” or what if Shakespeare either didn’t write some or all of Shakespeare’s works? What does this mean for us, as an audience, the worth of the works, and the value of Homer or Shakespeare as poets?

Most authors want to be connected to their works. Their expressions are personal, and this is the great risk of authorship. The courage to express means also accepting the great risks of expressing. Oblivion, ridicule, criticism, and obscurity are one’s most likely fates, but all authors dream of making some lasting impact on the world through their expression in some medium. Sculptors and architects do so with real, lasting monuments, and those who write attempt to do so with materials more ephemeral. Balladeers’ and dancers’ mediums of expressing are more fleeting still. Some people believe that taking the risk of expressing an idea in some medium requires that the community of potential observers and appreciators acknowledge that risk through such things as attribution and more recently, monopolies. Some authors (and clearly, I am using this term very loosely because I view expressions as occurring in many types of media, at the hands of a range of artists and even inventors) choose to produce their expressions anonymously, or care little for their attribution. Their reasons may be many and varied. Perhaps they fear the potential risks, or maybe they see the expression itself as being more important than attribution.

The question for us, if we are concerned with the ethics involved in “proper” attribution, is: is attribution of expression to author a moral requirement? Improper attribution can be a moral wrong where an expression is harmful, somehow. Attributing a libelous expression falsely is clearly wrong, as it passes off a responsibility for harm to an innocent party. Attribution, or the naming of the original author, is not only often imprecise (because as we saw above, expressions are changed over time, and may accumulate numerous authors) but is not morally required. Authors might wish to be associated with their expressions, but we are under no positive duty to ensure they are.

Part of the risk of expression is that the thing expressed lives a life of its own, flitting off into the wild, morphing over time, affecting audiences in any number of unpredictable and unintended ways. An author could no more ethically take credit for unintended good effects than for unintended bad ones. Once “free” of the author (once expressed) the expression and author are related only tangentially, as a perhaps interesting story about a particular expression’s origin, but little more. Our expressions live on, populating the world, replicating, thriving without us, and we should be glad of this. Just as with children, for whom we might be proud as they grow, thrive, develop, and go about their lives; our expressions live on, thrive, die, or remain unknown despite our hedonistic wishes for immortality. Children are not their parents, and their successes or failures speak only partially to our success or failure as parents. Authors and parents want to claim credit for the successes of their expressions or children, but allowing them to succeed (or fail) without the necessity of taking that credit represents a greater moral choice.

In fact, this is the realization of much modern literary criticism and its disentangling of author, intention, and expression. The work speaks for itself, and while we might very much enjoy trying to discern the author’s intention, doing so is epistemologically impossible, perhaps even for the author at the time of expressing. Kent Johnson takes this to its logical and moral extreme, questioning the rights, duties, and nature of authorship and attribution in general. He does so from firm ground. Authors have long toyed with the nature of their own authorship, and created personae and pseudonyms to make their expressions on their behalf, implicitly acknowledging the absurdity of any firm connection between expression and author. Araki Yasusda, who may or may not have been a Japanese poet whom Johnson translated, is but one example, and the story Johnson weaves to make his political and moral case about “O’Hara’s” poem is both serious philosophical inquiry and wrenching satire.

Modern political economy and the nature of profits in the publishing world have encouraged adopting a myth about the relation of author to work. This myth, destroyed effectively by Johnson, and undermined by the historical examples I have noted above, is that expressions are the author’s and that we must somehow acknowledge their conception to them and their profits. We choose to do so now for complex reasons, and in so doing may very well undermine the moral worth of creative expression. Blockbuster authors are now often industries around which publishing empires rise and fall. For instance, Bloomsbury, which published one of my books, has made a fortune and grown significantly propelled by the profits of Harry Potter. J.K Rowling is now inextricably associated with the Harry Potter volumes and movies. Rowling is as much a brand as the books themselves, expertly crafting a persona and canon that will, for the foreseeable future be known both as her and hers. How does Harry Potter stack up to Beowulf?

I’ll take a great risk and suggest that in the next thousand years or so, if humans remain, and English is still read, Beowulf will continue to have an important role in our culture and Harry Potter will not. J.K. Rowling may well be regarded as a successful author in her time, and Harry Potter valued for introducing a generation of kids to long-form fiction reading, but as great literature whose impact on a culture is historically important and meaningful, Beowulf, whose author is unknown, is a monument unlike most modern works. Were I the author of Beowulf, if indeed there was a single author, I’d prefer that sort of legacy to Rowling’s. While works of greatness uncoupled with fame or fortune do not pay the bills, they are the reason most good authors take the risk of authorship to begin with. But there are few truly good authors, and fame and fortune are the current gods to which we worship. Now here comes the proselytizing, and forgive me, I am not primarily a fiction author (though I have dabbled). Authors should strive neither for fame nor profit. Thus, attribution ought not to be an author’s primary concern (or even a concern at all), but rather the expression itself ought to be an end in itself, rather than a means to some other end. The author’s primary duty overrides claims of obligations owed by others, beyond the duty not to falsely attribute. If the author’s duty not to claim rights to expressions is true, as I claim it is, then there is no harm in even false attribution where there’s no harm. Yes, some artists want to be known for their works, but more often than not, true artists want their works to be known.

Consider Banksy. Banksy is famous for his works, iconoclastic stencils that began as graffiti, but are known and sought the world over as art. But Banksy is a pseudonym, and the ongoing power of his work stems in part from his carefully crafted and preserved anonymity. In the film Exit Through the Gift Shop, we see Banksy’s hooded figure, and marvel at the rise of an obsessive-compulsive documentarian of graffiti art’s own rise to the heights of artistic success, trading on the modus operandi of Banksy, but without so much talent. Of course the joke may well be on us, as the whole “documentary” seems ultimately to have been a charade of sorts, making fun of the art world, fame, glory, money, and the role and importance of critics in turning the previously banal into gold. This film, like Orson Welles’ F For Fake, uncovers the ludicrous extent to which we attach names and histories to expressions, and how this turns something into a treasured piece of “art.” Welles’ “film essay” (as he called it) itself plays with notions of authenticity and authorship, focusing on famous fakers such as Elmyr de Hory, one of the twentieth century’s most successful art forgers. News that many of the forgeries that de Hory had sold ended up in famous galleries throughout the world both enraged collectors and urged them to be silent. So many “authentic” Matisse’s and Picasso’s, all suddenly called to question. The value of each as a market commodity must now be forever in doubt, even if the artistic value of any of them might be unscathed.

What is it after all that makes a particular Vermeer valuable? Han van Meegeren, who faked and forged dozens of Vermeers, sold them successfully to educated collectors and museums before he was caught. Was it the signature that made the painting a worthy piece of art? Was it the art itself? Orson Welles’ great works were fakes of a kind as well, under the guise of which he could more successfully treat delicate subject matters, like the story of William Randolph Hearst under the very thin guise of Citizen Kane. Clifford Irving, who wrote the book Fake! About de Hory, became Welles’ subject in F for Fake when his attempt to publish an official “biography” of Howard Hughes becomes exposed as a fraud. And around and around we go. Author, work, truth, fake, art, critic… the lines are forever blurred when we begin to grapple with the metaphysical natures of each, and the ethical duties of author and audience.

Johnson upends and dispels all the traditional notions of authorship and its role in creation, scandalizing many in the process. This is what happens when the status quo, by which the current business of publishing continues and profits some, is challenged at its very base. It is a final deconstruction, of sorts, to claim as he does through the thin veneer of fiction, that there is some sort of conspiracy at work protecting the origin of a great poem. There is a conspiracy at work. There are several, in fact, including the twin conspiracies of convention and commerce, according to which authors are the inventors of the works they create and, like Thomas Edison, should profit through a state-supported monopoly over their “creations,” as well as some social-institutional monopoly over its essence. To pretend there is some sort of strict tie, some ownership, some moral right to protect and defend an expression once expressed is a form of authorial authoritarianism. It is the antithesis of free thought. Ideas don’t want to be free, they just are. Part of the risk of expression involves the loss of control.

But authors who aspire to Homer’s fate take that risk and launch their works into the winds and hope. Hope is the thing with feathers, and great works take flight without legal institutions, critics, or conventions to buoy or defend them against history. The freedom of expression is perhaps our most basic right, because it intercedes at the barrier between the mind and the body, where we choose to bring ideas into the world, but it comes with a certain responsibility too. “Our” ideas are only genuinely ours to the extent that we keep them trapped in our minds, and even so, they are likely not just ours. More often than not, they come from somewhere and someone else. Great ideas turn up historically in numerous places at once. Newton, who (may or may not have actually) said he stood on the shoulders of giants, quarreled with Leibniz for years about the origins of calculus. Their approaches to the problems of calculus were different, but solved the same problems using differing methods. Today, both Leibniz and Newton are celebrated, and calculus (whoever “created” it) helps propel rockets to the planets and beyond. Newton, and Leibniz, and every other scientist before and since has stood on the shoulders of giants: their peers, and their betters, who preceded them. Science is an evolving narrative, constantly refined but never perfected, a cycle of observation, hypothesis, synthesis, theory, observation, falsification, hypothesis, and so on.

Literature too is an evolving system, a dialogue of sorts among authors and voices within a tradition (sometimes encompassing numerous languages) over time. Ulysses is Joyce’s homage to the epic, borrowing from and imitating various styles, merging fiction, politics, religion, and culture in a new tapestry, the parts of which are neither new nor original. Ulysses is Odysseus, and Joyce plays Homer, wrapping an ordinary Dublin day in the cloak of epic. It was scandalous too, for different reasons, daring to elevate the bodily and the base, and insert them into epic. Since its original publication, Ulysses has changed, and the version that many of us grew up with as the “official” version has been replaced by a work alleged to be more closely aligned with Joyce’s own intention. Are there two Ulysses? Which is the real one? And who wrote each? Ulysses evolves, even as the Homeric epics have. Like all expressions, it is susceptible to revision and change, and Joyce’s intentions are both unknowable and irrelevant. Only a certain cult-like adherence to the myth of some strong link remaining between author and expression will defy this inevitable tendency. To defy this is to deny the true status of expression and to insist on some morbid, unnatural stasis in our culture and its artifacts.

And so what if? What if Johnson’s story is “true” to the extent that Koch wrote O’Hara’s haunting, prescient poem as an homage, an act of beneficence, the selfless act of an author who recognizes the overarching duty to express free of any egotistical desire for attribution? Is positing such an act of friendship, honor, and beauty a crime? Is it even just ethically wrong or suspect? I think it’s a lovely idea, and Johnson takes the risk as any author does of expressing his idea in a creative way. In so doing, he enriches the culture with literature, raises important philosophical questions, as is his wont, about the nature, duty, and obligations of authorship, and provokes further inquiry and wonder about a literary moment. It is interesting to ponder. It would be, as Johnson suggests, a truly supererogatory act if true. It is useful to consider the nature of acts through fiction and non-fiction. Ethicists do this all the time. We posit trains, and multiple tracks, and sacrificing 1 person versus 5, we compose outrageous hypothetical situations so that we can consider the ethical issues at play. These narratives are sometimes ridiculous and disturbing (as in the various “trolley” examples, involving choices between killing numbers and types of bystanders who happen to be stuck on railroad tracks) and even scandalous (cannibalism on lifeboats, etc.). But these stories are meant to provide insight into values by forcing us to consider what roles intentions and consequences mean for ethical decision-making.
Philosophers exchange, comment upon, revise, and embellish hypothetical examples used in ethics research. The history of philosophy in general, as in all scientific research, is a history of footnotes, critique, and revision of ideas whose geneses are often now obscure – standing on the shoulders of giants. Claims of originality must be looked at skeptically.
Johnson crafts a fictional account (a hypothesis of sorts) as a means of inquiry, as scientists do, as philosophers do, to examine a possibility. Like good science fiction and good science as well, it is founded upon entirely plausible circumstances, with some interesting and unlikely drama thrown into the mix from literary license. Like good literature, it launches itself as an expression into the winds of history and opens itself up for our use as we see fit. The laws these days still allow this sort of supposition, though we should be mindful about trends that could silence it. Laws are constantly refined to benefit the monopolists of expressions. Science itself is becoming monopolized by desperate academic presses intent on placing profit over the ethos of science, which has hitherto been open and free. Copyrights have been extended time and again, having begun with terms of 14 years, and now thanks to the late Sonny Bono’s famous lobbying for an extension of the copyright term just before Disney’s Mickey Mouse was due to lapse into the public domain, the monopoly for expressions is now the entire lifetime of an author plus an addition 70 years. The public domain, those expressions that are our not only morally but legally to do with as we will, is shrinking by degrees.

The world of free expression must push back against both the tyranny of conformity and the authority of the law. Law that seeks to constrict our free expression must be especially distrusted. Threats to free expression, and the freedom of expressions, come both from attempts to monopolize, and from those who seek to squelch criticism. Expanding notions of libel or slander, reputation and celebrity rights, and other attempts to prohibit the use of that which ought to remain in the public domain, all undermine authors’ moral dignity, and the duty to express. Anything that constrains an author from expressing is suspect. Expressions, except when they are truly libelous (false claims that harm a reputation), are risks for both the author and audience. The author takes the risks described above, that they will succeed and live on unencumbered by the author, or dissipate and die, unknown and unheard. The audience takes a risk that the expressions they consume will change them somehow, and affect them in some deep way that stays with them forever.

The (morally) best authors (and inventors) embrace a radical view of free expression, where they recognize the risks and rewards of creation. God took such a risk, in the Judeo-Christian tradition, creating humanity and giving us “free will.” Because Adam and Eve chose the path offered to them via free will, and consumed of the tree of the knowledge of good and evil, we are here. It was God-as-author’s risk in creating a free expression that humanity would act beyond His control, His command, and become creators too.

Our free will embodies a moral imperative to speak what we believe is the truth, or important, despite the consequences. The corpus of expressions created since the beginning of time are a testament to man’s role as creator, channeling ideas into the world upon which each new generation of creators builds. Who is the author of our culture, or the entire history of human expression? No one person is, but our culture is the sum of all. It is the collective consciousness made manifest in every medium conceivable, told by a litany of voices, creating an orchestra of ideas, a symphony of words, pictures, stories, poems, statues, and science. No greater monument to humanity exists. We cannot bottle it up or create ties binding any one work to any one author.

Homer, Joyce, Yasusda, God, Shakespeare, Johnson, they are all only the genesis, but creation is now beyond their control. Expressions live on their separate lives, unchained and free, evolving and uncredited, and this demonstrates the dignity, duty, and the courage of being a creator. Let us celebrate then the risk of creation, and the duty to let go, the allow our expressions their separate lives, and build a common culture of communication through our evolving media, content that there are expressions -- these supremely human, flawed, and most permanent cultural artifacts. They will survive, like the words on Ozymandias’s fallen statue, which survive even while a culture and its king’s visage lie in dust. They will speak of us long after we are gone, and speak well only if we let them.

Johnson’s book celebrates the unbound word, our Promethean glory as creators free of the debt of credit. His own act of creation, obscured as truths wrapped in fictions, touches upon the duty and ethos of the author and audience, spinning together, weaving something beautiful, and alive, new, and unchained. Somehow and somewhere, beneath or because of the cognizable expressions, imperfectly capturing our ideas, the truth will eventually be known. We are lucky if we get glimpses, and good authors, when they are especially fortunate or particularly talented, may give us those glimpses.

Wednesday, September 26, 2012

ACLU petitions for certiorari to the U.S. Supreme Court.

As predicted, the plaintiffs have petitioned the Supreme Court to review the CAFC decision reported here . The grounds for the petition include the failure of the CAFC to properly apply the decision in Mayo to the facts of the Myriad case. Given the split in the CAFC, and the Supreme Court's own admonition that the CAFC ought to have reconsidered their decision in light of Mayo, it would be highly surprising if they don't decide to take this up next term. Expect more posturing and puffery from those who promote patenting products of nature as the Supreme Court considers the petition and opposing submissions. The fact is, patent attorneys who have made profits by helping corporations to monopolize what cannot justly be monopolized are terrified that the Supreme Court might do the right thing and finally end this practice. I think their fears are justified. A careful reading of Mayo and recent decisions by the Supreme Court on patent matters seems to show a trend against those who contend that one can patent anything simply by drawing artful claims.

Thursday, August 16, 2012

SCOTUS, Here We Come

So, the Court of Appeals for the Federal Circuit, in reconsidering on remand their decision in the Myriad case has agreed with itself. No big surprise, though I did suggest that, if they wanted to preserve as much gene patenting as possible, they would craft a narrow enough decision, hewing to the Supreme Court's reasoning in Mayo, to withstand scrutiny on the inevitable appeal. They did not. They doubled-down, offering no new substantial reasoning, and basically reiterating their previous arguments. Bryson too stuck to his guns, the ones that will prevail in the Supreme Court, as he dissented and found the claims to the BRCA1 and 2 mutation sequences to be claims over ineligible subject matter. He stated it plainly, thus:

"Myriad is claiming the genes themselves, which appear in nature on the chromosomes of living human beings. The only material change made to those genes from their natural state is the change that is necessarily incidental to the extraction of the genes from the environment in which they are found in nature."

So the majority once again believed that the process of "extraction" of the nucleotide sequences devised by nature from the adjoining nucleotides was sufficient, even under Mayo, to be eligible subject matter under §101. Bryson once again disagreed, and now it's up to the Supreme Court. Let's recall that in Mayo, the decision of the CAFC was unanimously in favor of patent eligibility of a diagnostic method. This is not the case here, Bryson dissented. Let's also recall that the Supreme Court unanimously overturned the CAFC in Mayo, finding that the patents over methods of dosing based upon measuring metabolites were effectively claims over laws of nature. Man didn't make those relationships. Man didn't make the sequences in the Myriad case either, and odds are good that the Supreme Court will side with Bryson on this score. But one never knows, they could find some relevant difference between the cases. I don't see it. As he points out,

"Just as a patent involving a law of nature must have an 'inventive concept' that does 'significantly more than simply describe . . .natural relations' *** a patent involving a product of nature should have an inventive concept that involves more than merely incidental changes to the naturally occurring product."

To conclude, I see in Bryson's dissent a glimmer of the test I have been arguing for to divide the natural from the man-made. My test is: is the thing claimed dependent upon human intention and design? Bryson states:

"In that setting,  man has defined the parts that are to be retained and the parts that are to be discarded, and he has molded the retained portion into a product that bears little resemblance to that which occurs naturally."

He then correctly points out that genes are in fact defined by nature, with stop and promoter codons, and this is what allows them to function in protein synthesis. Man didn't create these boundaries, we merely identify them. So, I still hope that the Supreme Court will draw the bright line I am arguing exists between nature and artifact: the necessary and sufficient conditions for not being natural are: the intention and design of man. I look forward to hearing from those who disagree with a solid counterexample.

Meanwhile, it ain't over 'till the Supremes sing.

Tuesday, July 24, 2012

In Myriad and More, Metaphysics Matters

This past week, the Federal Circuit Court of Appeals heard oral arguments in the AMP v. Myriad "breast cancer genes" case. You'll recall that following its decision in Prometheus v. Mayo, in which, to the shock and horror of patent attorneys everywhere, certain diagnostic methods were considered ineligible for patent under Section 101 as being too close to natural laws or phenomena, the Supreme Court then vacated and remanded the Myriad appeal back to the CAFC for reconsideration in light of Prometheus. The fact that the decision of the CAFC was vacated and remanded, and that the court was asked to reconsider it in light of Prometheus, ought to be a clue that SCOTUS believes that there is some relevance between the two cases, and in fact there is. Both cases have to do with the distinction between the "natural" and the "artificial" or "man-made," as the Chakrabarthy case we have discussed here, and in my book, makes such a distinction for patent eligibility. Namely, "laws of nature, natural phenomena, and abstract ideas" are all explicitly not eligible for patents according to the Supreme Court, even though patent lawyers like to remind us that the Patent Act makes "discoveries" patentable. Sure they are, as long as they are not discoveries of "natural phenomena, laws of nature, or abstract ideas."

This is where lawyers are no longer the most competent experts, though many assume that they are. The distinction between "laws of nature, natural phenomena, and abstract ideas" and everything else is a metaphysical question. Metaphysics and ontology are primarily the expertise of philosophers, not lawyers. So while patent attorneys like to pretend that they are the sole, or at least best arbiters of what ought to be considered patentable, I beg to differ. This is where philosophers are best suited to offer their expertise, because drawing distinctions, applying logic and metaphysics to the world and its objects is in fact what we are trained to do. Lawyers draw distinctions among legal objects, but not sui generis. Rather, they apply precedent and statutes to determine whether objects, acts, or omissions fall into pre-existing legal categories. Their tools are not metaphysical, and when new objects emerge, close analogies, or new statutes are typically necessary to deal with them. But as I have long argued, sometimes the law is ill-suited to solve new problems, or its categories are mistaken from the start on a metaphysical level.

I have never claimed to be an expert in patent law, but as a metaphysician and ontologist, I am a competent critic of its application to the world and its objects. In the case of gene patents, which often include claims over things that are metaphysically best described as "natural" despite their "isolation," courts ought to pay some heed to the underlying categories involved, and what philosophers have to say about them. Philosophers can disagree, of course, and arguments might be made about the boundary between what is natural and what is not, and I look forward to hearing those arguments and engaging with them. But I claim still, as I have all along, that mere isolation of some molecule does not create something "man-made," and I have provided countless examples, including my favorite, isolated O2. Nothing about its structure, even when isolated, is the product of man's design or intention, just as in Prometheus, nothing about the laws governing the interaction of a drug with a person's metabolism is the product of man's design or intention, even if the drug itself was entirely the product of both. The analogies between these two cases are clear, and when one understands the significance of the metaphysics behind Prometheus, it is clear that if the CAFC were to act responsibly and honestly, they would now have to find Myriad's BRAC1 and 2 patents ineligible. But probably we will have to wait for the Supreme Court to do this, just as they did with Prometheus. Or maybe not; hope springs eternal.

Wednesday, April 11, 2012

Myths about "Who Owns You?"

In some of the more critical reviews of my book, a particular alleged "error" on my part is repeated, specifically that I claim that sexual reproduction results in patent infringement of genes. I use this as an example ad absurdium, extending the logic of patent law, which gives reproduction rights over tokens of patented types, but I explicitly state that when we reproduce, we are in no danger of literally violating the patent law, here, on page 92: "Although the PTO has claimed that gene patents do not encompass genes in their natural state, they do just that for all intents and purposes. We might feel a bit relieved to know that when we reproduce we aren’t violating anyone’s patent, but any scientist wishing to explore scientifically that gene sequence does so at his or her own risk because it is now legally bounded territory."

Others have criticized it for having a provocative title, because it suggests that I conclude that patents on genes mean that someone "owns" you. I do not so claim, and the title is provocative, but was the same title of a Scientific American story regarding gene patents in March 2002.

In fact, most of the critical claims leveled against the book fall apart when the book is read in its entirety. Some critical reviews repeated the lie that I made an "anti-commons" argument in the book. I do not. My argument is, ultimately, about the nature of the commons, not about utilitarian concerns over the effects of monopolies. What remains unchallenged is my argument about the nature of the "commons by (logical/material) necessity," in which I describe the nature of the scientific commons, which has recently been effectively upheld in the Prometheus decision in the US Supreme Court, and upon which my entire ethical argument against gene patents hinges. Perhaps at the end of the day, sniping about non-issues has failed to deflate the larger issues at stake (though I feared early on that it might), and only serve now to reveal that those early attempts to try to distract the public from the real ethical problem with allowing monopolies over natural products, laws, and phenomena will fail even as justice prevails.

Thursday, March 29, 2012

Lies, desperation and the death throes of gene patenting

The recent Prometheus decision has the patent-industrial complex up in arms. The Supreme Court's unanimous decision overturned patents on medical methods that amounted to patents on laws of nature, as I describe more fully in my previous post. One of my old adversaries, Chris Holman, whose incompetent review and attempt to discredit me I refuted here (a refutation he has never acknowledged or challenged), lashed out at me personally, and others (by extension) who disapprove of gene patents, by comparing me with Mike Daisey whose This American Life story on Apple factory conditions was recently retracted. Holman's analogy was faulty, and upon my request he retracted a lie in his post in which he stated that I claimed in Who Owns You? to be "an intellectual property attorney." Because I have never claimed to be so, and certainly not in my book, he retracted his lie upon my request, while explaining that he vaguely recalled it, though he obviously never attempted to verify his recollection by finding the alleged claim in my book. There is of course a certain irony that he had to retract his error (lie) in his own attempt to portray me as a liar. The irony seems to be lost on him, and although his analogy falls apart completely in light of all of the omitted context of my book, as opposed to Daisey's story, which I point out fully in his comments section, his attempt to slur me personally served his purposes anyway. Mainly, proponents of the broadest possible patent regime seek to discredit anyone who opposes them as being "wrong" and "failing to understand the patent system." They wish to be the only experts, and thus the only credible commentators on what can or ought to be patent-eligible. They even suggest that the Supreme Court is unqualified to make law regarding what should be patented. But the Supreme Court in the US is the ultimate arbiter of all US laws, including patent law, having itself created the explicit exceptions to Section 101 patent-eligibility for "laws of nature, natural phenomena, and abstract ideas." Like it or not, the Supreme Court is the final source of authority for what those exceptions encompass, not patent lawyers or even the Federal Circuit.

So the patent-industrial complex, which always profits from the mere act of patenting (by fees on filing patents, costly patent-law seminars, etc.), and which thus seeks to keep as broad as possible the domain of patent-eligibility, is struck with fear and trembling. They are looking to blame those of us who are not part of the system, who have no economic stake in the patent system, and who seek only to preserve the scientific commons against monopolization, and accuse us of meddling in their realm. As I have argued all along, the law is open to debate, and subject to change, and in the case of gene patenting I believe it ought to be changed because it neither reflects the spirit of the purpose of patent law, nor logic itself. The Supreme Court seems to agree, and has altered the law. The Court of Appeals, Federal Circuit (CAFC) has been overturned. Its decision in Prometheus was completely overruled, and the types of method patents at issue in that case are no longer to be tolerated. That is the law of the land. Moreover, it vacated and remanded the CAFC's opinion in the Myriad case about the BRCA 1 and 2 patents. This bodes ill for gene patent proponents, despite their attempts to try to distinguish the two cases. In fact, the Prometheus decision's reasoning makes the Myriad product patents even more questionable than those at issue in Prometheus, which at least involved "methods" in which the laws of nature monopolized were couched. Four of the claims challenged in the Myriad case are claims over merely "isolated," unmodified gene sequences with no method or process involved.

The CAFC panel on Prometheus which was overturned unanimously by the Supreme Court unanimously approved of the now invalid patents. The CAFC panel in the Myriad case was not unanimous. As I explained last year, some of the method claims at issue in Myriad were already struck down, and there was a dissenting opinion by one of the three panel members, Judge Bryson, who wrote that the product claims at issue were also invalid as products of nature. It is unlikely that Bryson will change his mind, and it is unlikely that Judge Lourie will change his mind (the Myriad court consisted of Lourie, Bryson, and Moore, the Prometheus court was Lourie, Rader, and Bryson). The wild card is Judge Moore. Will Bryson convince Moore, who filed a concurrence in the Myriad case and who did not sit on the overturned Prometheus appeal, that she ought not to stubbornly side with the losers as Rader did in the Prometheus case? Justice Breyer's decision gives plenty of ammunition to Moore and Bryson to write a majority opinion overturning the Myriad patents as amounting to claims over products of nature. In any case, whatever the CAFC decides to do, there will again be a petition for certiorari to the Supreme Court. If the CAFC does the right thing and reverses its previous decision in light of the Prometheus decision, then the Supreme Court is unlikely to take it up on cert, feeling that their Prometheus reasoning is correctly applied to overturning Myriad. If the CAFC decides to try to weasel around the Prometheus ruling it will still be a split panel, and SCOTUS would likely hear the Myriad appeal eventually. The CAFC may wish to write a narrow ruling overturning the Myriad patents, but leaving the door open enough for similar patents, and avoiding the sort of broad restriction that the Supreme Court could craft. Or they may decide to do what they did before and drop kick it to SCOTUS for some final ruling. Patent attorneys who are thinking far enough into the future ought to hope that the CAFC overturns their previous Myriad reasoning on some sort of narrow grounds, invalidates the Myriad patents and leaves the door open somehow for other sorts of gene patents (like those on cDNA), rather than allow this to finally be determined by the Supreme Court which seems hostile in general to the rhetorical cuteness of claim-drafters.

In the meantime, expect the rhetoric and public wailing to swell in an effort to influence the public's perception of what horrible fate might befall us all if patent attorneys cannot patent everything under the sun, and what the hell, why not the sun itself? I and others who oppose gene patents have withstood a lot of public abuse, but the reasoning we have employed has survived, and so far is winning the day. The law of the Myriad case is now the district court's decision, until the CAFC issues a new one, and that means the Myriad gene patents are invalid, for now. Let's see what happens next. In the long arc of history, I do believe that justice ultimately prevails.

Wednesday, March 21, 2012

The Patent Religion suffers a blow: reading tea leaves on AMP v Myriad in the Mayo v. Prometheus decision by SCOTUS

The Patent Religion's believers think that "anything under the sun made by man" is patent-eligible, even where nature made it first. This is the liturgy to which they appeal when challenged about patenting "isolated" or "synthesized" natural products. They think it means that even scientific discoveries, if properly couched in some "transformative" phrasing, are sometimes man-made. This was the case in the Mayo v. Prometheus case in which the patented claims included the correlations between, on the one hand, thiopurine drug metabolite levels and, on the other hand, efficacy and toxicity. These correlations were discovered through empirical research, they were not created. But the unfortunate wording of the Patent Act in the US, which makes patentable any new invention or "discovery" has enabled the patent lawyers to continue to argue that there is essentially no boundary between science and technology. Fortunately, the Supreme Court just burst their bubble. The Court's decision can be found here and should be read by one and all. Justice Breyer, a long-time skeptic of IP-lawyers' rhetorical tricks, pokes through the claims to look at the underlying subject matter. He does an ontologist proud.

While the unanimous decision makes worthy policy arguments about the negative effects on innovation of granting monopolies too far upstream, it also goes a fair way in describing the distinction between laws of nature, and something inventive and patent-eligible. From the decision's syllabus, the following language says it all:

"Because the laws of nature recited by Prometheus’ patent claims—the relationships between concentrations of certain metabolites in the blood and the likelihood that a thiopurine drug dosage will prove ineffective or cause harm—are not themselves patentable,the claimed processes are not patentable unless they have additional features that provide practical assurance that the processes are genuine applications of those laws rather than drafting efforts designed to monopolize the correlations. The three additional steps in the claimed processes here are not themselves natural laws but neither are they sufficient to transform the nature of the claims. The 'administering' step simply identifies a group of people who will be interested in the correlations, namely, doctors who used thiopurine drugs to treat patients suffering from autoimmune disorders. Doctors had been using these drugs for this purpose long before these patents existed ... The 'wherein' clauses simply tell a doctor about the relevant natural laws, adding, at most, a suggestion that they should consider the test results when making their treatment decisions ... The 'determining' step tells a doctor to measure patients’ metabolite levels, through whatever process the doctor wishes to use."

Patenting is not a game. Simply trying to squeeze square pegs into round holes using magical phrases will not do. There is a reality that must be observed, and rhetorical tricks aside, the claimed "inventions" were merely scientific discoveries about facts of nature. In this case, the Supreme Court has made both a logical and ontologically-grounded decision, recognizing that even where a claimed invention might be "man-made" it is not created by humans. Where a claim encompasses something that nature created, it cannot be eligible for patent, and fails under section 101.

Already, the patent lawyers have gone apoplectic, claiming that the Supreme Court is not qualified to make such decisions. The wailing and gnashing of teeth is certain to grow before it fades. Industry will not come to a halt, but science can flourish a little less hesitantly, secure in exploring nature and her truths without impinging upon some governmentally-created monopoly.

So what does this mean for gene patents, and the much anticipated AMP v. Myriad, Supreme Court showdown? Notably, Myriad had submitted an amicus brief in the case for the losing side. They know the implications of this decision for their practices and patents. Of course, I think the writing is on the wall. Breyer's language is sufficiently broad and suggestive in the Mayo v. Prometheus decision to indicate that they will be very skeptical of claims by Myriad that "isolated" sequences, not created by man, but identified as existing in nature, are patent-eligible. Procedurally, the case is interesting because in late February everyone expected SCOTUS to either accept the appeal on certiorari, and reconsider the case, or reject the cert petition and let the CAFC decision stand. But nothing happened. Some speculated that they were booting it over to the Solicitor General, who had put in an amicus brief opposing Myriad, to change his mind. But perhaps there is a clue here as to what's going on from the procedural history of Mayo. After the Bilski decision, SCOTUS kicked Prometheus back to the appellate court to reconsider the case in light of Bilski. They did that, and did so wrongly, upholding their previous decision, only to get overturned by a unanimous Supreme Court. Could SCOTUS now do the same with the Myriad case, and if they do, will the Federal Circuit once again ignore SCOTUS, make the wrong decision, only to get overturned, or will they actually try to apply the law of the land? Time will tell.

** UPDATE **

The Supreme Court has scheduled a meeting on the Myriad case for Friday, Mar 23. It seems likely, based on the Mayo v. Prometheus ruling that they will remand to the appellate court, or take the case up on cert. It seems highly unlikely that they would refuse cert outright. We should know by Monday.

** UPDATE **

The Supreme Court vacated and remanded the appellate court judgment for further consideration in light of their reasoning in Prometheus. This makes the district court's ruling current law of the case (with no precedential effect), and means we must hold our breath until the CAFC makes a ruling (which might, if they apply Prometheus honestly, find the product patents invalid). Let's hope!

Wednesday, February 8, 2012

Amicus Brief in support of certiorari to the US Supreme Court

The ACLU website links to a pdf of an amicus brief I helped draft in support of the petition for certiorari. We should find out soon, perhaps by March, if the US Supreme Court intends to hear the appeal. Fingers crossed! Many thanks to Luigi Palombi who spearheaded this particular brief and included me in the drafting.