Landmark (and great) decision on patents involving DNA

A landmark ruling that, I think, clarifies some of the confusion surrounding patents involving DNA. Some of the stuff in the article itself serves to illustrate confusion in peoples' understanding of what is/was/should have been patentable. The confusion boils down to a lack of understanding of the difference between 'invention' and 'discovery'.

From the NYTimes:

"A federal judge on Monday struck down patents on two genes linked to breast and ovarian cancer. The decision, if upheld, could throw into doubt the patents covering thousands of human genes and reshape the law of intellectual property."

I think this was a great ruling because the BRCA ('breast cancer gene') patents basically (I understand it) were for DNA that occurred naturally in living beings. Myriad Genetics claimed (like other companies have before) that isolating the gene transformed it chemically so it was now patentable. Shrewd lawyers and ill informed judges went along with that idea. But it was flawed from the beginning because Myriad patented the mutant version of the gene (which naturally occurred) and then got sole rights to test for those mutations (that naturally occurred in patients). There was no engineering human engineering involved that made that sequence unique and patentable. The exclusivity for the breast cancer test didn't arise from any technical innovation in the testing procedure --- just from the naturally occurring DNA sequence. Basically, they patented a discovery, not an invention. A lot of the 'gene' patents are fundamentally flawed for this reason: they are patents for discoveries, not inventions.

The NYTimes article goes on to say:

Such patents, it said, have been granted for decades; the Supreme Court upheld patents on living organisms in 1980.

The first part of this statement is somewhat true; but again, those patents were awarded incorrectly, due to some smart lawyering that muddied the facts about what was natural versus what was portrayed to be 'engineered'.

The second part of it was, at best, a bad example. The patent on living organisms that it refers to is one in which a microbe was engineered, using DNA that was also engineered, to be able to break down crude oil. There is no naturally occurring piece of DNA identical to that which was made and used for the engineering. Consequently, there is also no naturally occurring microbe that can break down crude oil in quite exactly the same way as that microbe --- and it is highly significant that the microbe's ability to break down crude oil is completely dependent on the engineering, and unnatural piece of DNA, that it possessed. The difference in this case, that made the DNA and the microbe patent-worthy, was that they were inventions not discoveries.

Anyway, coming back to the breast cancer gene patents---from related NYTimes article:

Although patents are not granted on things found in nature, the DNA being patented had long been considered a chemical that was isolated from, and different from, what was found in nature. But Judge Sweet ruled that the distinguishing feature of DNA is its information content, its conveyance of the genetic code. And in that regard, he wrote, the isolated DNA “is not markedly different from native DNA as it exists in nature.”

Way to go judge. Freaking nailed it!

This ruling is very significant because Myriad patented a discovery and charged patients a freaking ton of money for a simple test. They charge over $3000 for a test that shouldn't cost more than a twentieth of that. This ruling could open up a ton of competition for the simple test now, and hopefully bring down the cost of the test dramatically.

This should also set the standard for future patenting in biology. It is really not that difficult to determine invention vs discovery --- and award patents for the former and not for the latter.

A thought about Tiger's return

Now that Tiger has announced he'll return at Augusta for the Masters, there is the usual cacophony from all sorts of media outlets about how this move is obvious/smart/arrogant/cowardly/calculating etc etc etc because Augusta is a 'safe' place --- they hold near-absolute control over the media credentials and the crowds...excuse me...patrons.

I expect that every one of the people who have been (and still are) accusing Tiger of arrogant and controlling will absolutely beat down the doors of Augusta National and the PGA Tour if they aren't allowed as many credentials as they want, or if they aren't allowed to ask any damn question they want at the pressers. Further, since Augusta doesn't require any of its participants to appear at pressers, if Tiger chooses to avoid any pressers (which he won't, but still) I trust that the entire media empire will arise and unleash their fury and vitriol on Augusta National and the PGA Tour for not making it mandatory that he ANSWER THEIR QUESTIONS DAMMIT!!!!!!

I would even think that, just like the Golf Writers of America boycotted Tiger's public statement a few weeks ago because he wouldn't answer any questions, at least some 'backboned' 'principled' sections of the the media will completely boycott the Masters if Augusta not accede to their requests re Tiger and pressers.

Oh wait....I forgot.....it is perfectly OK for a bunch of rich old white dudes to be totally controlling about every aspect of their existence and message, discriminate as they wish as re their membership, and conduct their tournament by their own rules even if those rules are different from the requirements for every other golf tournament in the world....their invitational tournament will still be sanctioned by international golf bodies and they will all be referred to in hushed and reverent tones by the very same media assholes all the time....even if the Masters took a giant dump on their community once by telling CBS who it can and cannot assign for Masters coverage....ask Gary McCord about his fellow journalists' integrity....!

On the contrary, however, if a supremely gifted athlete ascends, by virtue of his talent, hard work and sheer force of will, to the pinnacle of the sport and popularize it like no one before....and generate unprecedented revenue for every one associated with the sport....if he should want to control his life and his message to his will and desire, then he is to be absolutely and endless vilified in every form of media possible....because the media are about integrity and morality, right?

A glimpse into the corridors of financial power

A good read from Vanity Fair....Larry Fink's $12 trillion shadow.

Excerpt that I found particularly interesting:

He now says he lost money at First Boston because no one really understood the risks involved. The computer systems were inadequate, and so were the programs that measured the impact of key variables such as changes in interest rates. “We built this giant machine, and it was making a lot of money—until it didn’t,” Fink says. “We didn’t know why we were making so much money. We didn’t have the risk tools to understand that risk. It’s what I tell everybody today: you should analyze your portfolio just as much when you are making money, because you could be taking on too much risk.”

Seared by his fall from grace at First Boston, Fink vowed never again to be in a position where he did not fully understand the risks he was taking in the market. What Fink had also come to see during his years at First Boston was how little his clients—pension funds, corporations, state and local governments—understood about the risks they were taking. Indeed, he says they were almost completely dependent on Wall Street firms to measure their risk—which was something, he knew from experience, that Wall Street did poorly. And so he decided to build a company that would not only invest money for clients but offer them sophisticated risk management too.

Worth taking the time to read the whole thing.