Over at IPWatchdog, where I have been banned as have most others who dare to challenge Gene Quinn's point of view, the panic in the air is palpable. So much so that he (and those who are afraid that the Supreme Court will do the right thing and narrow the scope of patenting genes to fit the exclusion for products of nature) has committed perhaps more fallacies in a single post than even he has ever done. Bravo for that, it would be a singular accomplishment! Let's analyze just a couple:
Straw Man Fallacy: This is one of Gene's favorites. He posts this particular tirade using as his excuse a patent described thusly -" U.S. Patent No. 8,399,645 — was issued to St. Jude Children’s Research Hospital. The invention relates to compositions for genetically modifying human immune cells so they can destroy some of the most common forms of cancer in children and adults." Note that the patent relates to genetically modifying human immune cells. He then inexplicably makes this move and then mentions the upcoming Myriad argument in the Supreme Court: "It seems unthinkable that the Supreme Court could issue a ruling that would call into question the patent eligibility of an innovation that has the potential for curing cancer, but that is what is at stake." Finally, admitting that a ruling in Myriad won't likely affect this patent, he concludes this section with "if the Supreme Court says that human genes are not patentable then what is to stop the march toward a ruling that says genetic modifications are likewise not patentable?" Wow, that was a fast one. How he got from A to B is an enormous mystery, suggesting that somehow a decision that holds that the BRCA1 and 2 patents are invalid under Section 101 because (presumably) they are products of nature has any relation to his nightmare scenario. In fact, there is no relation. He has raised a spectre which is unrelated to Myriad so that he can knock it down. Classic straw man. Raise up an argument that is not the argument in question, knock it down, and pretend you won the day. The patents in the St. Jude filing are not on isolated human genes, they cover instead genetically modified human immune cells. As even Eric Guttag notes in his comment to Gene (only true believers are allowed to comment there) modifying an organism in some way (not counting mere isolation) is inventive under the doctrine of Chakrabarthy which we have discussed here many times, mostly because that case also raises clearly the exclusions of products of nature.
Another straw man (and appeal to emotion) is this beauty: "By any measure St. Jude has been enormously successful. And those who think that government shouldn’t be funding research that results in the issuance of patents will absolutely hate the fact that the government and grants have played a role, together with the patent system, to provide the incentive and funding necessary to achieve this remarkable advance." Well, now, who thinks that? I think that this basic research ought to be funded, but that patenting it robs from the taxpayer, who has already subsidized the research, and who now has to pay monopolistic prices to access the fruits of their investment. But this is a very different position than that which Gene Quinn weaves out of whole straw.
Non-sequitor: Gene's entire point of the article seems to be to raise a red flag somehow suggesting that those who oppose patenting certain things will somehow prevent the cure for cancer. Here's his alarmist question: "How strange would it be if the cure for cancer has been achieved only for society to take the position that it is not patentable? If innovations of this importance are not patent eligible then why would anyone spend the amount of time and money necessary to bring them into being?" But earlier he noted that the research was done under an NIH grant. So the means to do the research was not venture capital fronted on the basis of the possibility of some return. It was basic research conducted as part of the government's major public granting system. Why would a research hospital doing basic research using funds given by the government try to come up with cures for cancer? My guess is: they want to cure cancer, and the government has given them the means. The patent incentive is utterly unnecessary in this case. It is now a nice extra double reward that the hospital will realize, and we could quibble with the justice of that, but his alarmist question bears no relation to the case, it is a complete non-sequitor.
Equivocation: one way to screw up an argument is to use a word or phrase in two different senses to try to make them appear equal when they are not. Gene does that here with the following: quoting the claim he includes "3. An isolated host cell comprising a polynucleotide encoding a chimeric receptor comprising: (a) an extracellular ligand-binding domain comprising an anti-CD19 single chain variable fragment (scFv) domain; (b) a transmembrane domain; and (c) a cytoplasmic domain comprising a 4-1BB signaling domain and a CD3? signaling domain.""" then Gene goes on ..." As you can see, the isolated host cell claim, claim 3, could be on a very slippery slope if the Supreme Court decides that the isolation step in the Myriad patent is insufficient to establish patent eligibility." And so, don't you see, because some of us claim that an isolated unmodified gene is not inventive, and remains a product of nature, then of course so too would the isolated host cell in this case, and so the cure for cancer would not be patent eligible and people like me all want to stop the research that leads to the cure for cancer. Don't you see? But wait, what he apparently hopes you don't notice is that in the St. Jude patent, the isolated host cell is chimeric. It has been modified. It isn't a product of nature. Which destroys his whole chain of reasoning. Oops.
Appeals to emotion: Quinn's rhetoric is always geared toward dangling red meat to raise the ire of his true believers, and those who don't dig too deeply into his faulty "arguments." This post is replete with pointless appeals to emotion, including the following, which also is an appeal to tradition "St. Jude Children’s Research Hospital is internationally recognized for its pioneering research and treatment of children with cancer and other life-threatening diseases. The hospital’s research has helped push overall survival rates for childhood cancer from less than 20 percent when the institution opened to almost 80 percent today. The research that led to this patent was supported in part by a grant from the National Institutes of Health. The patent issued today increased St. Jude’s patent portfolio to more than 100 issued United States patents" And so? Clearly, those of us who want to stop the patenting of unmodified and merely isolated genes are trying to destroy a wonderful organization!! Well, except we're not, obviously. Then there's this one, which really needs no further comment: "The anti-patent zealots will be remembered in history in the same way that we today view those who persecuted the likes of Galileo. Standing in the way of scientific advance and innovation is regressive, shortsighted and irresponsible. Only those with a special phobia against science and innovation, as well as a healthy disregard for reality, would ever stand in the way of the march of health related innovations." Except, oh man.
An so in sum
Let's get serious. A ruling for petitioners will not bring the biotech industry to a screeching halt as Quinn and his ilk want you and the Supreme Court to believe. Appealing to fear is the only hope they have in this case, since logic indicates that isolating something, as I have argued extensively, that is not the design and intention of some person does not make the isolated product of nature (like our famous O2 example) somehow inventive. We might have legitimate disagreements about whether isolation of something found in nature from its natural substrate ought to make it inventive, but the sort of panicky pronouncements, poor argumentation, and inflammatory rhetoric used in this post simply calls attention to the fear that patent-expansionists face whenever the Supreme Court starts reining them in. It's the same panic they exhibited when my book first came out, in which I took a very moderate position, the same position that the Solicitor General has taken that cDNA is patentable, but merely isolated genes are not.It's the same position the Supreme Court should take, and it's perfectly moderate and logical.
Straw Man Fallacy: This is one of Gene's favorites. He posts this particular tirade using as his excuse a patent described thusly -" U.S. Patent No. 8,399,645 — was issued to St. Jude Children’s Research Hospital. The invention relates to compositions for genetically modifying human immune cells so they can destroy some of the most common forms of cancer in children and adults." Note that the patent relates to genetically modifying human immune cells. He then inexplicably makes this move and then mentions the upcoming Myriad argument in the Supreme Court: "It seems unthinkable that the Supreme Court could issue a ruling that would call into question the patent eligibility of an innovation that has the potential for curing cancer, but that is what is at stake." Finally, admitting that a ruling in Myriad won't likely affect this patent, he concludes this section with "if the Supreme Court says that human genes are not patentable then what is to stop the march toward a ruling that says genetic modifications are likewise not patentable?" Wow, that was a fast one. How he got from A to B is an enormous mystery, suggesting that somehow a decision that holds that the BRCA1 and 2 patents are invalid under Section 101 because (presumably) they are products of nature has any relation to his nightmare scenario. In fact, there is no relation. He has raised a spectre which is unrelated to Myriad so that he can knock it down. Classic straw man. Raise up an argument that is not the argument in question, knock it down, and pretend you won the day. The patents in the St. Jude filing are not on isolated human genes, they cover instead genetically modified human immune cells. As even Eric Guttag notes in his comment to Gene (only true believers are allowed to comment there) modifying an organism in some way (not counting mere isolation) is inventive under the doctrine of Chakrabarthy which we have discussed here many times, mostly because that case also raises clearly the exclusions of products of nature.
Another straw man (and appeal to emotion) is this beauty: "By any measure St. Jude has been enormously successful. And those who think that government shouldn’t be funding research that results in the issuance of patents will absolutely hate the fact that the government and grants have played a role, together with the patent system, to provide the incentive and funding necessary to achieve this remarkable advance." Well, now, who thinks that? I think that this basic research ought to be funded, but that patenting it robs from the taxpayer, who has already subsidized the research, and who now has to pay monopolistic prices to access the fruits of their investment. But this is a very different position than that which Gene Quinn weaves out of whole straw.
Non-sequitor: Gene's entire point of the article seems to be to raise a red flag somehow suggesting that those who oppose patenting certain things will somehow prevent the cure for cancer. Here's his alarmist question: "How strange would it be if the cure for cancer has been achieved only for society to take the position that it is not patentable? If innovations of this importance are not patent eligible then why would anyone spend the amount of time and money necessary to bring them into being?" But earlier he noted that the research was done under an NIH grant. So the means to do the research was not venture capital fronted on the basis of the possibility of some return. It was basic research conducted as part of the government's major public granting system. Why would a research hospital doing basic research using funds given by the government try to come up with cures for cancer? My guess is: they want to cure cancer, and the government has given them the means. The patent incentive is utterly unnecessary in this case. It is now a nice extra double reward that the hospital will realize, and we could quibble with the justice of that, but his alarmist question bears no relation to the case, it is a complete non-sequitor.
Equivocation: one way to screw up an argument is to use a word or phrase in two different senses to try to make them appear equal when they are not. Gene does that here with the following: quoting the claim he includes "3. An isolated host cell comprising a polynucleotide encoding a chimeric receptor comprising: (a) an extracellular ligand-binding domain comprising an anti-CD19 single chain variable fragment (scFv) domain; (b) a transmembrane domain; and (c) a cytoplasmic domain comprising a 4-1BB signaling domain and a CD3? signaling domain.""" then Gene goes on ..." As you can see, the isolated host cell claim, claim 3, could be on a very slippery slope if the Supreme Court decides that the isolation step in the Myriad patent is insufficient to establish patent eligibility." And so, don't you see, because some of us claim that an isolated unmodified gene is not inventive, and remains a product of nature, then of course so too would the isolated host cell in this case, and so the cure for cancer would not be patent eligible and people like me all want to stop the research that leads to the cure for cancer. Don't you see? But wait, what he apparently hopes you don't notice is that in the St. Jude patent, the isolated host cell is chimeric. It has been modified. It isn't a product of nature. Which destroys his whole chain of reasoning. Oops.
Appeals to emotion: Quinn's rhetoric is always geared toward dangling red meat to raise the ire of his true believers, and those who don't dig too deeply into his faulty "arguments." This post is replete with pointless appeals to emotion, including the following, which also is an appeal to tradition "St. Jude Children’s Research Hospital is internationally recognized for its pioneering research and treatment of children with cancer and other life-threatening diseases. The hospital’s research has helped push overall survival rates for childhood cancer from less than 20 percent when the institution opened to almost 80 percent today. The research that led to this patent was supported in part by a grant from the National Institutes of Health. The patent issued today increased St. Jude’s patent portfolio to more than 100 issued United States patents" And so? Clearly, those of us who want to stop the patenting of unmodified and merely isolated genes are trying to destroy a wonderful organization!! Well, except we're not, obviously. Then there's this one, which really needs no further comment: "The anti-patent zealots will be remembered in history in the same way that we today view those who persecuted the likes of Galileo. Standing in the way of scientific advance and innovation is regressive, shortsighted and irresponsible. Only those with a special phobia against science and innovation, as well as a healthy disregard for reality, would ever stand in the way of the march of health related innovations." Except, oh man.
An so in sum
Let's get serious. A ruling for petitioners will not bring the biotech industry to a screeching halt as Quinn and his ilk want you and the Supreme Court to believe. Appealing to fear is the only hope they have in this case, since logic indicates that isolating something, as I have argued extensively, that is not the design and intention of some person does not make the isolated product of nature (like our famous O2 example) somehow inventive. We might have legitimate disagreements about whether isolation of something found in nature from its natural substrate ought to make it inventive, but the sort of panicky pronouncements, poor argumentation, and inflammatory rhetoric used in this post simply calls attention to the fear that patent-expansionists face whenever the Supreme Court starts reining them in. It's the same panic they exhibited when my book first came out, in which I took a very moderate position, the same position that the Solicitor General has taken that cDNA is patentable, but merely isolated genes are not.It's the same position the Supreme Court should take, and it's perfectly moderate and logical.
