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.


drkoepsell said...

since Holman's blog isn't letting my reply to "Anonymous" through for some reason, here are my final thoughts:

Dear Michael (Anonymous),

It implies that I have studied it mostly from a philosophical perspective, but I have never, ever claimed to be an "intellectual property attorney," and certainly not as Chris stated "in the book." You can see above (in my 4th comment) that the context of the book was philosophy and ethics, it was, after all, part of the "Public Philosophy" imprint of Wiley-Blackwell.

Mr. Holman has admitted and has the book itself as evidence of the fact that his claim "In the book, the author characterized himself as an intellectual property attorney" is untrue, and not based upon fact, but rather some loose faulty recollection of his own. So Chris's retraction (and apology) is welcome and warranted, since his false claim implied a stronger analogy to Daisey than exists. I haven't lied or done anything to warrant retraction myself, and have admitted to technical errors about the law or legal terms in the post you cited (in which I do actually confront Chris's claims of error, and refute much of his allegations, again, contrary to Chris's reporting). While my arguments might be challengeable on policy or legal grounds, the ontological and logical arguments I make about the illogic of the "isolation" contrivance are certainly open for honest debate, which I welcome anytime. I invite debate about it here, for instance:

I took offense to Chris claiming I was like Daisey, and the analogy breaks down in the light of the facts, which include the clear context of my work as a work of philosophy, my never having characterized myself as an "IP attorney" as Chris claimed, and owning up to minor technical errors even while refuting Chris's other claims of "error" (such as his utter mischracterization of my Chapter 7 as an anti-commons argument, which it is not at all, it is the crux of my ethical argument and hinges upon a deontological theory of what constitutes a "commons" ontologically-speaking).

I bear no one ill will on this, I think that Prometheus and the Supreme Court's position must have riled Chris (and plenty of others) up and that it may have felt good to lash out at someone he feels is somehow responsible for everyone's "misconceptions" of patent law. I say we have different perspectives on what ought to be eligible for patent, and that there are good arguments on either side (both utlitarian and deontological). I have spent a lot of time on these issues, and earned nothing but the very slow gratification of seeing the courts start to do what I think is the correct thing. I can also state with near certainty that no one in a position to make any decisions on the Myriad or other cases has even heard of my book, much less read it. Academic books rarely sell more than a couple thousand copies. I believe mine is no exception.

The record is clear, people can judge me all they want, and slur my name as they please. My hope is that they judge the arguments instead, as the Supreme Court aptly did in Prometheus.

all my best,

arturo said...

I have posted the complete text of the CAFC order of April 30, 2012 on my blog: "No To Gene Patents"