Thank You, Brian Leiter

Last summer, I was horrified when I read a scathing review of my book by Chris Holman. I drafted a hasty response on the invitation of James Hughes at the IEET Blog in which I questioned Holman's reading of my book (as he appeared to address only a few pages of it) as well as his objectivity, due to his long-term connections with the biotech industry. To this day, and to my knowledge, he does not deny consulting or otherwise working on behalf of BIO (he is certainly well-known by BIO), although he says he owns no shares in any biotechs using gene patents. My questioning of his motives and neutrality earned me a rebuke from Brian Leiter, who is a law school professor and author of a well-known blog, as well as a J.D./Ph.D. in philosophy like me (although he teaches in a law school, and not a philosophy department). Leiter is known by philosophers mostly for his Gourmet Report which ranks philosophy departments. Although Mr. Leiter had clearly not read my book, he gleefully publicized Holman's review, and publicly rebuked my response (for features he himself has employed), ignoring my pleas for him to pay attention to the substance of my arguments, and Holman's lack of substance in his review (and even Leiter calls for such potential conflicts to be disclosed when he is the subject of criticism).

Despondent that Mr. Leiter's gossipy coverage might tarnish my reputation, I sought the advice of my mentor, a philosopher of long-standing, international reputation. I was advised to relax. Leiter was not that important in philosophical circles (beyond his rankings, which departments do pay attention to), nor his blog that important. "all publicity is good publicity," I was told. And in fact, my mentor was right.

Stephan Kinsella (a patent attorney whom I have since befriended) read about me through Leiter's blog and came to my public defense, bolstering my arguments frequently with his perspective as a patent attorney. And since Holman's review, the majority of reviews of my book, including in Choice, The Guardian, The Yale Journal of Biology and Medicine, The Journal of High Technology Law, Metapsychology Online Reviews, Ethical Perspectives, and elsewhere, have been quite positive. Patent attorneys have tended to be negative, just as they have been critical of the ACLU's claims in the AMP v. Myriad case. But even more importantly than any review, the issue has gained terrific traction this year, the public is becoming aware, and there is the real possibility of changing public policy.

I will never fully understand Mr. Leiter's motivations (although he was on the board of the publication that solicited Holman's review, and did personally peruse and clear the review before publication), nor the delight of some in the scandal-sheet style attacks on my claims (or maybe just on me). My arguments have stood the test, and moreover, the same reasoning is motivating courts and institutions to change the law. This is much more than I hoped for. I am happy to withstand the attacks of academics and patent attorneys, as long as the word gets out, and these arguments get heard. Most people understand well that natural products and laws of nature ought not to be monopolized, as Judge Sweet held, and that the end of gene patents will be a step toward justice. I have had the great good fortune this past year to meet courageous people who have stepped beyond the theory, and sought to change things. I have mentioned them in this blog, including Luigi Palombi, the ACLU and its attorneys, plaintiffs in the AMP v. Myriad case, and others. I am thankful for their commitment to this important issue. Finally, I should thank you, Brian Leiter, for helping to make this a phenomenal year for justice and for helping to connect me with so many wonderful activists, working to change the system.

UPDATE: Indeed, justice has fully prevailed. The Supreme Court adopted the reasoning I advocated and invalidated most gene patents, and a 2d edition of my book is coming out in May 2015, with a chapter devoted to the Myriad case which set the new precedent.http://whoownsyou-drkoepsell.blogspot.ca/

A Nice interview/article

Drew Halley interviewed me for the singularity hub, a news blog site devoted to issues having to do with futurism in general. His article does a nice job setting out the history of the issue briefly, and then concludes with an interview he did with me while I was at the Open Science Summit. Here's a link to the full article. http://singularityhub.com/2010/08/11/who-owns-you-20-of-the-genes-in-your-body-are-patented-video/

Open Science and Economics

The Open Science Summit (here are my slides) has concluded, and it marks the start of a very important ongoing conversation, including discussions we should continue to have about the practical effects of patents on innovation. My arguments have always been both theoretical and practical. While Ron Bailey at Reason relates "Numerous studies have so far failed to find that gene patents are a big impediment to either research or innovation" in reporting on our session at the Summit, there are also numerous such studies showing that the impact is in fact bigger than some make it out to be. One noteworthy recent addition to the empirical evidence is this article, by Heidi Williams of Harvard University - Department of Economics; National Bureau of Economic Research (NBER), entitled "Intellectual Property Rights and Innovation: Evidence from the Human Genome" which just came out this past month. She sent me the following link, and below I summarize and provide some useful quotes:

Williams tracks the progress of individual discoveries, looking at the research that was conducted on both patented and unpatented genes, and comparing the rate of innovation and commercialization resulting from both. she states, in describing her methodology: "My empirical analysis relies on a newly-constructed data set that traces out the distribution of Celera's IP across the human genome over time, linked to gene-level measures of scientific research and product development outcomes." ... significantly, she finds:

"For each gene, I collect data on publications investigating potential genotype phenotype links, on successfully generated scientific knowledge about genotype-phenotype links, and on the development of gene- based diagnostic tests that are available to consumers. Both the cross-section and panel specifications suggest Celera's IP led to economically and statistically significant reductions in subsequent scientific research and product development outcomes. Celera genes have had 35 percent fewer publications since 2001 (relative to a mean of 1 publication per gene)."

finally, she concludes:

"I estimate a 16 percentage point reduction in the probability of a gene having a known but scientifically uncertain genotype-phenotype link (relative to a mean of 30 percent), and a 2 percentage point reduction in the probability of a gene having a known and scientifically certain genotype-phenotype link (relative to a mean of 4 percent). In terms of product development, Celera genes are 1.5 percentage points less likely to be used in a currently available genetic test (relative to a mean of 3 percent). The panel estimates suggest similarly-sized reductions, on the order of 30 percent. Taken together, these results suggest Celera's short-term IP had persistent negative effects on subsequent innovation relative to a counterfactual of Celera genes having always been in the public domain. The panel estimates measure a transitory effect of Celera's IP, and suggest that innovation on Celera genes increased after Celera's IP was removed. However, the cross-section estimates measure more persistent e ffects and suggest that Celera genes have not 'caught up'"

The evidence is growing more damning all the time. This study cites the Murray study I have previously cited here, and nails the lid in the coffin, as far as I can tell, on the economic effects of gene patents. I hope you'll read this paper. I am thankful that economists like Williams are continuing to blow the lid on the real story of patents, and how they inhibit both science and commerce.

Open Science Summit, Berkeley, July 28-31

I've been getting ready for this exciting event, among other things. Here's a nice preview at H+ Magazine. Check it out, and if you're in Berkeley then, come to the event!

Bilski!

Of course, SCOTUS would issue this decision while I was traveling. It's not as groundbreaking as anyone would hope, cuts a very narrow path ruling on Bilski's business method patent (not patent-eligible under 101) and little else. There are many nice quotes suggesting the Supremes don't want any more expansive of a reading of what might be patent-eligible, but neither do they seem to be unanimous in wanting to narrow it. All of which is to say, more status quo for software, business methods, and other such things. But what does it mean for the Myriad case? Well this also seems to be good news, as the Bilski decision relies on the holdings of Chakrabarthy,Gottschalk v. Benson, Diamond v. Diehr, and Parker v. Flook, which line of cases establishes the exception under 101 holding products of nature and abstract ideas ineligible for patent. Sweet relied on Bilski in rejecting the patented methods for the BRCA diagnostic test, holding that the mere comparison of two strings of DNA was too abstract to be eligible for patent under section 101.

As a brief philosophical aside: Abstract is not the correct, operative phrase in any of these cases, logically-speaking. Something is either abstract or concrete. There's the ratio "Pi" (which is an abstract entity) and there are circular objects, which are concrete. There is no continuum. What the courts all mean is "overly-general." So, "the placing of luncheon meat between two pieces of bread" encompasses too much, is overly general, and not patent-eligible under this notion. But a particular new, non-obvious, useful sandwich would be eligible.... More to come as I ruminate on the case and its various concurrences....

Proof that science works

This week, a research team out of the Cleveland Clinic announced that they had successfully tested a breast cancer vaccine on mice. The work to develop this vaccine was made possible with a mere 1.5 million USD grant from the National Institutes of Health, a federal funding agency in the US. Oddly, while defenders of the Myriad patents on BRCA1 and 2 often claim that the diagnostic test wouldn't have been developed but for patents, and that the money generated by such patents is necessary for further breakthroughs in health, there is no evidence that Myriad has invested any of its over 300 million USD per year profits from the BRCA1 and 2 tests in developing any cures. Why would they? For the remaining 5 years of their patent, they can rake in their monopoly rates, generating huge profits above and beyond the costs of the original research, and not have to invest in any new research. They also now have a patent on the pancreatic cancer gene and can rake in more money from those diagnostics. So why bother with a cure?

Publicly-funded science, on the other hand, devoid of the conflict of interest generated by the corporate need for profits, works. The work on the breast cancer vaccine is showing just how. I could find no patent, either, registered for the work on the vaccine. Perhaps, like Jonas Salk, Dr. Vincent Tuohy would view such a patent as the equivalent of patenting the sun. Let's hope. Meanwhile, this story illustrates how science can work, and why the arguments regarding the necessity of patents to fuel medical breakthroughs is bunk.

Trailer for the movie, "Who Owns You?"

My co-producer, and the director of the documentary we are producing, Taylor Roesch, has put together an engaging trailer. The principal shooting for the doc is complete, and he lined up a great range of experts to speak on the subject. We will wrap up shooting late this summer here in The Netherlands, and plan to put together a rough cut in time for some of the festivals. I'm really proud of Taylor's work, please check it out:

Who Owns You? - A Documentary - Trailer from Taylor Roesch on Vimeo.