Final nail in the coffin

In a final blow to Myriad, who had won in two lower courts in Australia upholding its patents there, the High Court just ruled that their patents are invalid, citing reasoning echoing the US Supreme Court and that I argued in my book Who Owns You. The rest is now history. Reason once again prevails in one small area of patent law.

Foreword and Preface, for free!

Thanks to Wiley (my publisher) and PatentDocs (the very popular and excellent website on patents) you can read the Foreword (by Dr. Kevin Noonan) and the Preface (by myself) online.

In other news, today the book hit #1 in the Patents, Trademarks, and Copyright New Releases section of Amazon!

What's New in the Second Edition?

Addressing some criticisms from reviews for the first edition, I have corrected technical errors throughout. Moreover, I have added a significant amount of material in the wake of the Myriad decision. A full new chapter discusses the decision itself and its reasoning. An expanded version of the "Science" chapter, now co-authored with Vanessa Gonzalez, PhD, a pharmacogenomics expert, includes illustrations and some new material as the science has advanced. I have added a chapter describing a complete ontology of invention and discovery that coalesces the reasoning behind my arguments into guidance for future issues where the distinctions between the two are likely to be called into question and pose issues for patent law, science, and innovation. As well, Kevin Noonan (a critic of my arguments) wrote a lengthy and informative foreword in which he offers the utilitarian arguments in favor of gene patents.

The work now should stand as a more complete record of my arguments, the legal status of gene patents, and an epoch of sorts that has come to a close, even as some questions linger, and new ones loom for future consideration.

I hope you enjoy it.

David Koepsell,

Mexico, D.F. 2015

Who Owns You, 2d Edition

The 2d Edition is already available as a Kindle download, and the hardcopies will be in stores and available for order in a few weeks, depending on your location.

The issue of gene patenting is not settled worldwide, and our interpretation of the changing law will impact our approach to new and emerging technologies in biology and beyond. I hope you'll consider carefully my arguments, my attempt to devise a coherent ontological scheme to innovation vs. discovery that can avoid some of the pitfalls of the past, as well as my attempt to describe and reason through the Supreme Court's rulings in the area of gene patents and related cases. Here is the link to the book on Amazon.

http://www.amazon.com/Who-Owns-You-Innovation-Philosophy/dp/1118948505/ref=sr_1_1?ie=UTF8&qid=1432138077&sr=8-1&keywords=david+koepsell

Thank you (Again) Brian Leiter

There's a JD/PhD working at University of Chicago Law School named Brian Leiter. He specializes in philosophy of law and Nietzsche, and for a while was a sort of gatekeeper for the Philosophy field due to his ratings of philosophy departments. While his importance in that role has recently declined, he also has a long history of internet belligerence and public dustups. He may be why you are  here visiting my blog since he has lately focused some of his anger on me and has twice mentioned my name in the last few months. I won't bother trying to psychoanalyze his obsessions, nor to document his issues and disagreements (all of which can be gleaned from some of the links in this post, and by a casual search of the web) but simply take this opportunity to thank you Brian Leiter, for helping to bring some notice to my web pages and work in philosophy -- again, especially now that the 2d Edition of Who Owns You is available on Amazon, iTunes, and soon in bookstores near you.

I've noticed a fair amount of increased interest in my personal web page and this blog (probably by people looking to confirm an un-cited-to claim about my stand on an issue relevant to a professor in philosophy - a stand I never took, as I merely tried to correct some misperceptions about the nature of tenure given I worked in that area of the law when I was employed in the NY Attorney General's office). Doubtless those who searched out my statements on that case are puzzled as to why Leiter would mention me by name - I did muse on his own stand on the case. I have no answer for that other than the guy seems obsessed and consumed by vendettas. He has been proven wrong in his judgment about my foresight and abilities of analysis of the justice of gene patents, I was more or less vindicated by a sweeping change in the law, and the rest is history. The Second Edition documents the arguments I made, their applicability to the current legal scheme, and the errors of those who for so long supported a practice which I am glad to see stopped in the USA.

In the new edition, which includes a foreword by Kevin Noonan of http://www.patentdocs.org (who is a friendly and an honest critic of my arguments even now), I elaborate on the Myriad case, which began after the first edition was published, and offered an exciting opportunity to track the relevance of public philosophical debate. The case surprised many in the patent bar, but anyone who pays attention to the logical arguments about the nature of "isolated" genes vs. those that are part of the genome would not be surprised. The unanimous Supreme Court decision was entirely logical, the legal landscape has been made more logical and predictable, and in this edition I added some materials proposing a general ontology of discovery and invention that helps to make sense of the new state of the law for applicability in the future.

I'll have a lot more to say in the near future on patent reform in general which I think is at a critical crossroads, but in the meantime, and once again, thank you Brian Leiter, for keeping my name in the blogosphere, and helping to draw attention to my work. Keep it up and I may feel obliged to give you a cut of the royalties.  

2d edition coming soon!

The book is in press now, due out in May. Expanded with discussion of the Myriad case which pretty much established what I argued for as the law of the land, as well as including a foreword by Kevin Noonan of Patentdocs, the blog that once attacked the book, this edition is intended to be a definitive edition.

Here's a link at Wiley: http://au.wiley.com/WileyCDA/WileyTitle/productCd-1118948505.html

Many thanks to all who contributed.

-David

Myriad is Finished

BREAKING NEWS!

Last year, following their loss in the Supreme Court, Myriad sought to block competition in a last ditch effort by suing Ambry and others who would offer BRCA testing. They lost a motion for a preliminary injunction, which would have prevented their competitors from offering tests while the suit was pending, then they appealed that to the CAFC, who today rejected their claims on appeal. This fight is done.

Echoing reasoning I have advocated, the court held:

"Contrary to Myriad’s argument, it makes no difference
that the identified gene sequences are synthetically
replicated. As the Supreme Court made clear, neither
naturally occurring compositions of matter, nor synthetically
created compositions that are structurally identical
to the naturally occurring compositions, are patent eligible.


Myriad has lost all the way, and the BRCA genes and technologies and methods associated with their detection are where they belong: in the commons.

UPDATE: it's particularly good timing as the second edition of Who Owns You is in production and due out in May, including a section about the Myriad case which started after my book was first published. For a recent presentation regarding my theory of the commons and how it relates to the current status of the case law, you might want to scroll through this.

More Stuff Happens with the BRCA genes

So there's still activity in the Myriad case, and also a second edition of my book Who Owns You is now under contract with Wiley. My draft is due in August so I'll be writing this summer to update and revise in light of the significantly different legal landscape since the first edition was published. That landscape is active, but so far stable since the Supreme Court case. When Myriad lost in the Supreme Court, as I indicated they would, they sought to vigorously defend what remained of their patents, including by suing those who used the decision as an argument to compete in the BRCA testing arena. Myriad used the aggressive move of asking for a preliminary injunction in a lawsuit against one of those competitors, which turned out to be a big mistake. To win an injunction like that, before the merits of a case are reached, you need, among other things, to demonstrate a likelihood of success on the merits. In a 100+ page opinion, the court in Myriad v. Ambry denied the injunction, using the opportunity to expound on the merits and concluding that Myriad has no such likelihood. This is an early blow that won't help their stock price, and moreover, gives a pretty good early clue as to how the case will go. With the opinion's clear language, other companies are now entering the testing market and competing with Myriad, taking their chances and betting on the likelihood that in fact Myriad cannot monopolize the isolated DNA segments that the Supreme Court already said they cannot monopolize.

Philosophy and Public Policy: Metaphysics Matters!

It has been nearly a week now since I received word about the outcome of the Myriad case. I was travelling at the time and suddenly started getting congratualtory emails and Facebook messages, so I went online via free wifi at the coffee shop I was at in the US, and quickly found the news that the Supreme Court had unanimously rejected Myriad's arguments. I was so excited I hit my best friend in the chest... sorry Justin. Now that a week has passed, and the airwaves and blogosphere have been awash with a plethora of incriminations, congratulations, and musings about what it all means, I want to address what is to me a central lesson: philosophy matters.

Sure, some will claim this decision was a legal one, having no relation to philosophy, but such claims betray a complete ignorance about what philosophy is. My book and the writing and speaking I have done on the subject of gene patents ever since have focused upon the ontology of the underlying objects. I have long felt that before we can approach ethical questions we need to clarifying what we are dealing with. I did this first for software, then genes, then nanotehnology. While I have taught medical and bio-ethics, the thesis of Who Owns You is not guided by standard bioethical principles, but rather founded upon uncovering the nature of the objects involved in the debate. Thus, my arguments about the nature of the "commons-by-necessity" and the status of genes as part of that commons confused some who expected typical applied ethics arguments, or legal anti-commons claims. For the past four years, what I have tried to do is show by recourse to basic ontological concepts, that unmodified but merely isolated genes are not different in kind from the genes claimed by Myriad and others as found in nature.

In the course of these arguments, the illogic of those who pursued the course of maintaining gene patents as they existed was laid bare, perhaps never more clearly than in debates about the nature of another naturally-occurring product: O2. When it became clear through those arguments that patent attorneys and others who supported gene patenting must also endorse patenting O2, the necessity of ontology was also revealed. Despite their claims otherwise, a world in which individual O2 molecules are distinguished from each other based upon their origins makes little sense ontologically, forget the ethics. One needs to confuse process with product, a basic ontological error, to support such a view. The Supreme Court, whether they realized it or not, sided with sound ontology. Although lacking the language that philosphers use when engaging in ontology, the Supreme Court's opinion makes both logical and ontological sense.

The Court has reasoned that the BRCA mutations claimed in Myriad's patents, even though "isolated" from the surrounding genome, remain "natural phenomena." An explanation for how this is so resides in ontology. In each case, the molecules described by the nucleotide sequences identified are not the result of man's design. They are nature's own products. Similarly, even when synthesized, O2 is never the product of man's design.  The process of creating isolated BRCA mutations in the lab may well be man-made, but will never result in anything other than a natural product because the product is one designed by evolution, not human ingenuity. We could call lab-made O2 or BRCA genes "synthetic natural products," and explain this by understanding that the process of making something cannot be confused with the resulting product. To be non-natural, both the intention of creating the product and the design of the product must come from minds. This is why I am more or less comfortable with the court's holding that cDNA is patent-eligible, because in producing cDNA (when, as the Court notes it does not exactly mirror sequences found in nature), one must combine intention with design.

At one of my recent talks, someone asked why in making my arguments I relied on ontology rather than ethics. My response was that courts are typically unmoved by ethics. This may be suprising, but it is true. The Court's decision in Myriad is about the nature of the underlying objects, not about what is right or wrong. Perhaps there is an ethical dimension to the general prohibition against patenting abstract ideas, natural phenomena, and laws of nature. Or perhaps not. Perhaps this restriction is about the nature of the objects too, as I have claimed when I argue they are simply materially and logically (and thus maybe also ethically) "unencloseable." But the Court's decision is guided, whether knowingly or not, but an ontology, and one which is coherent if understood as I am describing it. It provides guidance for those who conduct basic research, and those who wish to commercialize inventions. It offers some clarity where the law had deviated from logic. It illustrates that philosophy is not divorced from other subjects, and can indeed be relevant in numerous spheres. Indeed, metaphysics matters a great deal, and we engage in its practice every day to greater or lesser degrees, and sometimes public policy is significantly affected by its improper or proper uses. Philosophers would do well to point out the role of philosophy, as illustrated by the Myriad case and its implications, in the real world, and those who fail to see this as an implementation of philosophical reasoning should review the role and nature of philosophy historically. It really is the meta-science.

looking back and preserving history

Strangely, in the wake of the recent Supreme Court decision in Myriad, one of my very my very first public posts on the subject of gene patents, made at the invitation of Gene Quinn at ipwatchdog.com, seems to have disappeared from his archives. Meanwhile, he is claiming as others have done that my original statements and arguments went far beyond what the Supreme Court did. In the interests of preserving history, I'm reposting my article so you can judge for yourself the extent to which the Court has essentially restated my arguments. I believe they have.

"
The Case Against Gene Patents

Written by David Koepsell

Posted: June 13, 2009 @ 5:35 pm

I favor innovation, and am interested in ensuring that science and
technology work hand in hand to both better our standard of living, and enrich those who create new and useful works. But it is not necessarily true that current intellectual property laws always accomplish this. Nor is it so that everything under the sun is subject to intellectual property protection. When Jonas Salk developed his vaccine for polio, he was asked by Edward R. Murrow who owned the patent on the vaccine. His famous reply was "well, the people, I would say. There is no patent. Could you patent the sun?"

Since the mid 1990s, patents have been granted for human genes. Although now they are supposedly limited only to "isolated and purified" genes, this is a limitation of no consequence at all. It merely means marking the beginning and end point of the gene, and perhaps leaving out a few introns (which are meaningless junk that doesn't do anything to the functioning of the genes, and that remains as a byproduct of evolution." I argue that this is as ""inventive" as marking the boudaries of natural features, like mountains, on a map. It gives the mapmaker no right to the mountain, nor to preclude others from depicting that mountain.

The practice of patenting genes began during the progress of the Human Genome Project, which was a world-wide publicly funded scientific endeavor to map the human genome. While the HGP released the data it found into the public domain, it left open the option of "downstream" patents for new, inventive innovations, treatments, etc., that might come from the research. Meanwhile, Celera began to patent an unspecified number of sequences it found in its private attempt to map the genome. It's "shotgun" approach to sequencing remains a vital, patentable innovation that has changed the way gene sequencing is done. It was new, inventive, useful, and non-obvious. But this is not true of human genes
that are being patented.

The first public altercations over gene patents came from groups
representing those who suffer from genetic diseases. Canavan's Disease is a monogenic disease (it is carried by one gene only) that strikes a disproportionately among people of Ashkenazi Jewish heritage. When Miami Children's Hospital acquired a patent for the gene, a group representing families suffering from Canavan's Disease sued under tort law. They claimed that based on the patent, he Miami Children's Hospital was unjustly enriched when they not only collected royalties but restricted the number of labs that could offer testing for the disease and charged a fee beyond the cost of the test. Because of the restrictive licensing, many labs stopped offering the test. The case settled, and the legality of gene patenting remains unchallenged in court. It has so far been
based only upon the PTO's interpretation of regulations it has promulgated. Recently, the ACLU's suit against Myriad over its tests for the "breast cancer genes" has brought this issue back to the spotlight.

I argue in my book - Who Owns You? - that gene patents violate the patent law because what they claim as patentable is a part of nature, and thus neither new nor non-obvious. Awarding patents to non-new discoveries does not encourage innovation, and sitting on what are essentially laws of nature, so far upstream, actually stifles downstream innovation. Moreover, There are certain things that we have regarded both culturally and legally as belonging to a commons, and thus not subject to private ownership. I argue that unmodified genes are exactly
this sort of thing.

In Gottschalk v. Benson, the Supreme Court stated: "the patent would
wholly pre-empt the mathematical formula and in practical effect would be a patent on the algorithm itself." That would amount to patenting an abstract idea, contrary to long established precedent. Laws of nature are inherent in nature. We do not invent them, they are part of the fabric of everything. Gravity is an example, the laws of evolution are another, as are the laws of relativity. Scientists devise explanations for these laws that we call "theories", and attempt to confirm or falsify them through experiment. As we acquire a better understanding of natural processes and products, we become better equipped to manipulate our world, create new things that nature never made, and bring our inventiveness to bear on nature to make our lives better. This is, in sum, the purpose of intellectual property law: to further the progress of the useful arts and sciences. But if we try to do so by allowing governmentally-sponsored monopolies (as intellectual property ultimately is not a free-market device) we must be careful to not stifle innovation by granting monopolistic rights over laws of nature. Instead, we should grant rights only to those things that are the products of human thought
and creativity. The application, for instance, of the laws of gravity to some specific way of moving people up and down between floors. The splicing of a genetic segment into a creature in such a way that nature never devised to make an entirely new creature that might, for instance, eat oil, is inventive. Finding a gene that has evolved over millenia is not.

Finally, I argue that the genome is a commons. There are parts of the world that cannot be owned in any practical sense. Radio spectra are my favorite example. There's no way to exert ownership over a particular band. I can exert my ownership over my possessions and my land, but the only means of trying to control a band on the radio spectrum is to broadcast over it. But along comes my neighbor who does the same thing, and cranks up the wattage. There is no winner. It is the classic tragedy of the commons. I argue that genes, which are, after all, parts of what Richard Dawkins calls "the river of life flowing out of Eden" are simply unencloseable. Parents all over the world are reproducing patented genes, technically violating the patents on those genes because they
haven't sought permission and aren't paying royalties. The idea is absurd, of course. This is why the practice is absurd. Unmodified genes simply cannot be owned, nor should they be. 

But there's plenty of room for innovation. As I mentioned, Celera deserves the fruits of its invention in developing new, useful, non-obvious technologies for rapidly sequencing genes. When new methods of testing are developed, they ought to be rewarded. A number of corporations agree with the thesis that patenting too far upstream actually stifles innovation, and the SNP (single nucleotide polymorphisms) Consortium is a prime example. The Consortium itself is a not-for-profit organization made up of the Wellcome Trust, a number of
leading academic centers, and thirteen pharmaceutical and technological companies. These members have joined efforts to discover the roughly 300,000 SNPs thought to exist in the human genome, and to release this information into the public domain, while securing for each member IP rights over real innovations developed both along the way, and as a result of the effort. The same is true of the HapMap project which includes private companies, academic centers, and public and private research institutes. These efforts underscore the role of public science in profitable enterprise, and the recognition by corporations of the role of each in spurring innovation. None of the private corporations involved in these efforts could be accused of being wild-eyed anarchists seeking to undo private property rights. They simply realize that not everything should be patented, and that upstream patents can stifle downstream innovation, slowing the progress of the useful arts and sciences, and undermining the purposes for which patents were invented in the first place.

My book is certain to cause disagreements, as there is room for reasonable people to debate my assumptions about the role of intellectual property in innovation, as well as the nature of genes and genomes. But this is an issue that requires public debate, and legal challenge. Whether the courts or legislators ultimately change the way that genes are now being patented remains up in the air, which is why now is a perfect time to decide for yourself, and make your arguments, and be heard on this vital issue."

About the Author

David Koepsell is an author, philosopher, and attorney whose recent
research focuses on the nexus of science, technology, ethics and public
policy. He is an Assistant Professor at the Delft University of
Technology, Faculty of Technology, Policy, and Management, Philosophy
Section, and he blogs at Who Owns You?

Logic Prevails!

Read it and weep, IP-maximalists: 

http://www.cnn.com/2013/06/13/politics/scotus-genes/index.html?c=mobile-homepage-t

Other people's bodies: a fresh perspective

Admittedly, I have scrupulously avoided making arguments based upon ethical perspectives that are grounded in religious beliefs when discussing gene patents or bioethics in general. This is largely because I am completely non-religious. I also think religious arguments do little to convince those who don't happen to share your beliefs. Nonetheless, Arthur Gershman's book Other People's Bodies offers a fresh perspective on issues in bioethics, with some special relevance to the gene patenting debate. Gershman is himself a registered patent attorney who has weighed in against gene patenting online, and in a number of other fora and media. His blog is here and includes a recent column from the Jewish Daily that opines against gene patents in relation to the Myriad case.

Gershman's short book is chock full of interesting and enlightening essays relating to bioethics in general, and educating the reader about the perspectives offered by Jewish thinkers and theologians. While I am not personally convinced by religious or even culturally-based arguments about the ethics of various biological studies or commercial actions regarding our tissues, bodies, or genes, I think it worth pointing out that the BRCA1 and 2 mutations, as with a number of monogenic mutations, disproportionately affect the Jewish population, just like Canavan's and Tay-Sachs, Ashkenazi Jews appear to have higher percentages of these diseases than other populations, as far as we know. I think that this gives us an obligation to recognize and respect to some degree a Jewish perspective, inasmuch as it offers a unique approach to the ethics of biological materials, bodies, and property emerging from this tradition, and take account of it in our political responses to issues like gene patents. I am happy that Gershman's book gives us this valuable perspective and recommend it to everyone dealing with this issue.

JUSTICE KAGAN: "And the PTO seems very patent happy"

I love that quote from Justice Kagan because it pinpoints the root of the issue. She said it when Myriad's attorney tried to justify the practice of patenting isolated genes by referring to the Patent and Trademark Office's past practice of doing so. She is right, and that office, run as it is by patent attorneys, much like the CAFC is dominated by them, is a poor guide for what ought to be the case. They are "patent happy." (see, e.g., the Peanut Butter Sandwich patent).

One should never try to predict what the Supreme Court will do in any given situation. Nonetheless, a brief analysis of the transcript of the oral argument in the Myriad case is revealing. The Justices seem inclined to hold in a way that readers of this blog will be familiar with: isolation of a gene is not enough, only changing the gene suffices to make it patentable. The questioning from the Court right from the start revealed their discomfort with the current "isolation" regime, which is unsurprising in light of their recent decision in Prometheus.

Mr. Hansen did an excellent job in his argument, under some difficult questioning, steering the discussion back to the question of whether a product of nature, merely isolated, should be eligible under Section 101. He cited all the best examples, arguments, and precedent. He also conceded as he should that recombinant DNA is eligible, and that the patents at issue in the Myriad case are not recombinant. He also left the door open for the Justices to do as they seem inclined to do, and follow the lead of the Solicitor General, ruling that the isolated genes alone are ineligible subject matter but that cDNA is. This is also the position I have maintained all along in my book and since. The attorney for Myriad had a tougher time of it, and the questioning of the Justices seemed to have him in a corner a couple times. Instead of recapping the arguments, I urge you read them yourself here. Also, I am providing links to some excellent in-depth and plain English analyses here, at Patently-O and at ScotusBlog. What I wish to do here is highlight sections from my book that made the same argument that seems likely to win the day, a conservative position I have maintained all along, arguing that mere isolation is insufficient to warrant patent, that some degree of intention (and design) is necessary to make something inventive, and that while engineered genes ought to be patent eligible, isolated genes alone ought not to be. Here are some relevant passages:

"Each instance of the un-engineered human genome is a naturally occurring object. Its existence as an abstracted ideal which is instantiated in you, me, and every other human, in its present form has no element of the type of expression described above. There is no mixing of labor with any present human genome’s form, nor is there any human intention involved." (Who Owns You? p. 111-12)

"All copyrightable and patentable objects are intentionally produced man-made objects and they are not merely ideas. Your DNA, or mine, or any other non-engineered being, is not an expression according to this description of intellectual property, and neither is any naturally-occurring subset of a genome (such as a gene or a SNP)." (Ibid, p. 112)

"Chemical formulas, for example, or natural laws, cannot be copyrighted or patented. The seminal Supreme Court case Diamond v. Diehr, specifically excluded from patentability “laws of nature, natural phenomenon and abstract ideas.” (Ibid, p. 113)

"Many gene patents are perfectly valid both legally and ethically. All valid patents use products of nature in some form, but they do not extend to protect the naturally-occurring parts of the invention. Most patents on new chemicals involve not just a patent on the new compound, but also a patent on the process of synthesizing the compound.These sorts of patents provide guidance for how gene patents can legally issue and still also promote innovation. New genes could of course be patented if they are man-made. New combinations of genes can also be patented if they are the products of human intention." (Ibid, p. 114)

"Many gene patents issue now in which the current use of the gene is in merely finding the same gene. This is quite absurd. It is like patenting the element iron, and then claiming that the use of iron is in finding iron, or patenting the Rock of Gibraltar and then claiming that the utility of the patent is in locating the Rock of Gibraltar." (Ibid., p. 115)

I quote these sections because they show that the arguments I made anticipated the same ones made in the Myriad case which began a couple months after my book was published. These same arguments have been to a large degree echoed by the questioning of the Justices. Together with Myths About Who Owns You the past year at least has demonstrated just how conservative my arguments have been and how they echo the thinking of at least some Supreme Court Justices as well as precedent, and that perhaps initial claims about how wildly inaccurate, off-base, or whacky my arguments were, were themselves wildly inaccurate, whacky and off-base, or perhaps merely ideologically-motivated.

Now of course, the Court may still rule that all gene patents are just fine, but at least I take comfort in having my arguments made in public court, in language and with examples similar to that I used in 2006 when I first confronted these issues from a philosophical perspective. I'm comforted that now my arguments seem firmly in the mainstream and persuasive to many if not all.

Next Monday, I Like

This has been a big week leading up to an even bigger Monday. That's the day the Supreme Court finally hears the AMP v. Myriad appeal, and I'll be listening. But this past week I had the opportunity to revisit the issue in a number of venues. One was as a guest lecture for an honors class taught by Robert Zwijnenberg at Leiden University. His class is called "Who Owns Life?" and I was invited to discuss my views on gene patents from my book, Who Owns You. There I gave this talk: "Nature, Genes, and the Commons" with a great reception from the students and faculty. The questions were challenging and the discussion wide-ranging.

Later that same day, I appeared on The Forum, a show on KQED, the National Public Radio affiliate in San Francisco. The panel discussion entitled "Who Owns Your Genes" included: Lauren Sommer, science and environment reporter for KQED Public Radio, Karuna Jaggar, executive director of Breast Cancer Action, Jeffrey Lefstin, professor at UC Hastings College of Law, and myself. Again, this discussion was civil, interesting, in depth, and revealed the fundamental disagreements and agreements in anticipation of the Supreme Court's oral argument next Monday.

Finally, my friend Joanna Rudnick's great film, "In The Family" is being re-released. This film is an important view on the scientific and social role of the BRCA1 and 2 tests that Myriad monopolizes, and features the only taped discussion of those patents from Mark Skolnick, the founder of Myriad. Here is an excerpt from the press release, I urge everyone to watch the documentary online:

"As Supreme Court debates gene patenting linked to hereditary breast and ovarian cancer, POV and Kartemquin release In the Family free online

Emmy-nominated 2008 film by Joanna Rudnick features revelatory video interview with Myriad Genetics, defendant in the SCOTUS case.

Chicago – On April 15, 2013, the Supreme Court of the United States will hear a landmark case on the patentability of genes linked to hereditary breast and ovarian cancer.

To raise public awareness on the issues involved, the documentary In the Family – which helped spark the original case – will be streamed online for free to coincide with the hearing. In the film director/producer Joanna Rudnick tells her story of discovering she carries the BRCA gene mutation. She interviews other cancer “pre-vivors,” and in doing so is led to Myriad Genetics, sole patent holder of the BRCA genes and sole provider of genetic testing for mutations in the genes.

In the Family will be exclusively streamed online at http://www.pbs.org/pov/inthefamily, launching with the Supreme Court hearing of the ACLU’s challenge to the BRCA genes on April 15, 2013 for 30 days (through May 15, 2013), followed by a second streaming window of 30 days around when the verdict is announced.

Rudnick’s exposing video interview with Myriad’s founder Mark Skolnick – in which she questions why the cost of the test is going up despite advances in technology – remains the only on-camera comment Myriad has given on these issues since the case was launched."

On Monday, of course, we'll have some new material to review as the court's arguments become available online. 

stay tuned!

Pro-Patent Panic and Hyperbole While Waiting for Myriad

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.

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.

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.

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!

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.

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.