Great report from US-DHHS

So, it seems that the US Dept. of Health and Human Services will recommend de-fanging almost completely gene patents as they are presently granted in the US. Essentially, they have reached the same conclusions that I reach in my book regarding the nature and utility of gene patents and effects in creating patent thickets. Because the report is not available yet, I cannot say whether they address any of the ethical issues involved. Here's part of the conclusion reported at IPWatchdog, where my friend Gene Quinn is naturally quite alarmed by what I consider to be a fantastic step forward:

"For the most part, patents covering genetic tests and related licensing practices do not appear to be causing wide or lasting barriers to patient access. However, the case studies and public comments documented several situations in which patient access to genetic tests has been impeded for segments of the population—especially indigent patients—when these tests are offered by an exclusive provider or a limited number of providers, a practice directly enabled by current patenting and licensing practices."

I look forward to reading the final report and hoping that Congress acts as recommended.

Patents: tools of state socialism

the following reasoning is met with deafening silence at IP Watchdog, where clueless patent attorneys accuse me of socialism, communism, etc...

How are patents a free market device? Shouldn’t capitalism embrace free markets? My love for free markets is what drives me to hate patents, since they skew markets, are a state-granted privilege accorded for no better reason than beating someone else to filing something with bureaucrats, and inhibit free, unfettered competition, which is what capitalism ought to encourage rather than hinder.

Patents are more socialist than capitalist. They get the state into the business of marketplaces, of determining what technologies ought to succeed or fail, of boosting patented tech over non-patented tech, rather than encouraging the market to select for the best products and drive pricing. It’s a lot closer to five-year plans than what I envision, which is a market without any state involvement at all.

and now, the film version... and Australia

We are in the development stage right now, but will begin filming for a documentary on the subject of gene patents later this autumn.

Luigi Palombi and I are also planning a workshop in Canberra on the issue of gene patenting to coincide with the Australian Senate's decision due late November, early December. We hope to get some interviews for the documentary while we are there as well.

Citation in Brief for Amici Curiae

I notice that Who Owns You and this blog are cited and quoted in a recent court filing in the ACLU v. Myriad case. The references occur in the BRIEF FOR AMICI CURIAE IN SUPPORT OF PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION TO DISMISS AND IN SUPPORT OF PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT for the National Women's Health Network, Asian Communities for Reproductive Justice, Center for Genetics and Society, Generations Ahead and the Pro-Choice Alliance for Responsible Research at p. 18. Quoting now the brief:

"The consequences of such attempts to assert exclusionary rights to our common heritage often involve harms to others. Attorney and philosopher David Koepsell asks us to “[i]magine a tax on air, or a levy on sunlight, or some corporation claiming ownership of the open seas and demanding royalties for their use. Imagine a world where ideas could be owned, and thinking ideas held by others was prohibited or subject to fees, taxes or royalties.” David Koepsell, Who Owns You?, Wiley-Blackwell at 133 (2009). He points out that the “human genome is a constantly evolving object that involves every member of the species” and that “[g]ranting exclusionary rights to discoverers of genes that are part of that genome interferes with our common rights as beneficiaries and possessors of parts of the human genome.” http://whoownsyou-drkoepsell.blogspot.com (Aug. 21, 2009 posting; last accessed Aug. 27, 2009)."

I am pleased to see this used in the brief, and I am quite honored.

Good review in NL

A favorable review of Who Owns You? appeared in De Ingenieur 21 August 2009 (I have scanned it and it can be read here, but it's in Dutch.) A shorter, English version by the same author is at amazon.uk.

Meanwhile, I am reading and can recommend Luigi Palombi's Gene Cartels which does with the legal argument against gene patents what I have tried with the ontological/ethical argument. Palombi methodically examines the case law and statues, making the case that gene patents violate both the spirit and letter of patent law. I urge you to read this book if you want to see why the legal arguments made by proponents of gene patents are nonsensical.

Correspondence with Lawrence Lessig

Lessig is one of my heroes. This is from his bio at his web site:

"Lawrence Lessig is a Professor of Law at Stanford Law School and founder of the school's Center for Internet and Society. Prior to joining the Stanford faculty, he was the Berkman Professor of Law at Harvard Law School, and a Professor at the University of Chicago. He clerked for Judge Richard Posner on the 7th Circuit Court of Appeals and Justice Antonin Scalia on the United States Supreme Court."

Now I'm no Lessig, and haven't got his credentials nor reputation, but when someone of his caliber is attacked with basically the same accusations as those leveled against me, it certainly makes one wonder. Kudos in that case to Stephan Kinsella for being a stand-out among the patent lawyer crowd, and rising to his defense, as he did to mine.

Their tactics haven't changed. He too was accused of "misunderstanding" patent law, or the following -- "the trouble is he knows nothing of patent law, like most (but not all) law professors."

Here's what I wrote to Lessig:

"Dear Prof. Lessig,

I recently joined the ranks of those who are attacked by patent lawyers for treading on their turf, and saw that one of my patent attorney defenders defended you against similar attacks in the past. http://www.lewrockwell.com/orig/kinsella7.html#corppat

My sin was commenting on gene patenting policy, from an ethical perspective. My book Who Owns You? The Corporate Gold Rush to Patent Your Genes (Wiley-Blackwell 2009) was trashed in a scathing review by a patent attorney with a biotech startup firm employment history (who appears not to have read critical parts of the book, but merely commented on the few cases I reference). http://ndpr.nd.edu/review.cfm?id=17005 My response to his "review" is at my blog, http://whoownsyou-drkoepsell.blogspot.com/2009/08/methodical-response-to-chris-holmans.html where Mr. Kinsella also chimes in in my defense.

Anyway, seeing that you went through this too made me feel much better. I'm in excellent company.

best,
David Koepsell"

UPDATE

I received this quick response from Prof. Lessig:

"Congratulations! The hysteria of the patent bar shows we're onto something here. I look forward to the book."

A patent attorney who gets it!

Many kudos to Stephan Kinsella, who is a patent attorney who writes at the againstmonopoly.org blog. He posts a nice rebuke to Randall Mayes, and makes the case that patents in general are not necessarily efficient in encouraging innovation, and are de facto usurpations of property rights (making all my statements about the scope and effect of gene patents true, not fiction). His post can be read here. He also lends his support to my responses to Chris Holman, writing here. I have added his blog to my blogroll too, and will be following it diligently.