 September 19, 2011  John Willinsky The Public-Interest Patent Option
by John Willinsky ? September 19, 2011 On July 29th, 2011, the U.S. federal appeals court reaffirmed, in effect, the right to patent genes, if in limited cases. The court?s ruling overturned a lower court decision that voided a patent held by Myriad Genetics on BRCA1 and BRCA2, two human genes used in determining the risk that women face with breast and ovarian cancer. Much hinges on the outcome of such patent challenges, given the thousands of genes that have been patented in the United States and elsewhere. The appeals court accepted that the chemical structure of DNA, once removed from a cell was ?markedly different? from the DNA found in nature, that is within the chromosone. In this way, the court upheld the general rule that what nature renders remains common to us all, while what is humanly produced is subject to patent. It also upheld in this case the limited nature of patents, by ruling against Myriad?s ability to patent its method of analyzing patient risks levels, declaring that Myriad?s filing involved, ?patent-ineligible abstract mental steps.?? The suit against Myriad?s patents was filed by the American Civil Liberties Union and the Public Patent Foundation (acting on behalf of cancer patients, who can face a $3,000 charge for the breast cancer risk test), as well as medical researchers and societies. The Obama administration filed an amicus curiae arguing against the patenting of DNA. In covering the case for the New York Times, Andrew Pollack has not unreasonably suggested that it may make its way to the Supreme Court. As well, Pollock refers to how ?critics say it is unethical to patent something that is part of the human body or the natural world.? I would argue that the court respected this stance, by finding that the DNA in question was no longer part of the human body. But then I want to offer a second point of critique, based on a line of research I have underway on how work done in the name of learning (and the learned), in such institutional settings as universities, tends to give rise to a distinct class of intellectual properties, one that differs from commercial properties and places a different set of opportunities and responsibilities on the owners of those learned properties.? This distinction has a long legal history and is entrenched through fair use clauses, the academic exception, various tax exemptions, Bayh-Dole Act, etc. At the same time, the distinctiveness of the intellectual properties of learning is still very much open to debate and dispute. Let me show how the distinction is both missing and operative in the case of the BRCA1 and BRCA2 gene patents. The ethical issue here, then, is not the DNA?s relation to the body, before and after it is extracted. It has to do with how the patent is used by those who have rights in it.? In the U.S., along with Myriad Genetics, which is located in Salt Lake City, the other party with rights to these gene patents is the University of Utah Research Foundation. The Foundation seeks ?to promote, conduct, encourage and facilitate research, development and dissemination of knowledge, and the application of knowledge in all fields of learning.? One way of achieving that goal is to direct a portion of the licensing fees paid to the Foundation for such patents to more research. This might well seem justified until one realizes that there is another way of addressing the responsibilities that arise from the creation of intellectual property in the name of learning and the development of knowledge.? Seven years earlier, Cancer Research UK won its case to extend its UK patent for the BRCA2 gene (based on the work of Mike Stratton funded by Cancer Research UK) to all of Europe. Many researchers applauded and welcomed this extension of patent rights because Cancer Research UK grants royalty-free access to BRCA2 for publicly owned and non-profit labs. This organization used the patent to protect the public?s right to benefit from BRCA2, while retaining an ability to license it to commercial enterprises. This is sometimes referred to as ?defensive patenting,? protecting an invention from being patented by others. In this case, a publicly funded agency is using the patent defensively ? should we call it ?ethical patenting? or ?public-interest patenting?? ? to keep this invention in the public realm. By a strange twist in this knowledge-based economy, Cancer Research UK allows for both public and commercial use of its patent, thereby breaking the (seemingly anti-capitalist) monopoly that can lead to undue commercial exploitation.? Public-interest patenting strikes me as recognizing the distinctive intellectual properties of learning. It responsibly honors the public trust involved in the funding of learning and learned inquiry. It is one way to redirect the university patent race, set off in the U.S. by the Bayh-Dole Act of 1980, into a matter of greater public good. On July 29th, 2011, the U.S. federal appeals court reaffirmed, in effect, the right to patent genes, if in limited cases. The court?s ruling overturned a lower court decision that voided a patent held by Myriad Genetics on BRCA1 and BRCA2, two human genes used in determining the risk that women face with breast and ovarian cancer. Much hinges on the outcome of such patent challenges, given the thousands of genes that have been patented in the United States and elsewhere. The appeals court accepted that the chemical structure of DNA, once removed from a cell was ?markedly different? from the DNA found in nature, that is within the chromosone. In this way, the court upheld the general rule that what nature renders remains common to us all, while what is humanly produced is subject to patent. It also upheld in this case the limited nature of patents, by ruling against Myriad?s ability to patent its method of analyzing patient risks levels, declaring that Myriad?s filing involved, ?patent-ineligible abstract mental steps.?? The suit against Myriad?s patents was filed by the American Civil Liberties Union and the Public Patent Foundation (acting on behalf of cancer patients, who can face a $3,000 charge for the breast cancer risk test), as well as medical researchers and societies. The Obama administration filed an amicus curiae arguing against the patenting of DNA. In covering the case for the New York Times, Andrew Pollack has not unreasonably suggested that it may make its way to the Supreme Court. As well, Pollock refers to how ?critics say it is unethical to patent something that is part of the human body or the natural world.? I would argue that the court respected this stance, by finding that the DNA in question was no longer part of the human body. But then I want to offer a second point of critique, based on a line of research I have underway on how work done in the name of learning (and the learned), in such institutional settings as universities, tends to give rise to a distinct class of intellectual properties, one that differs from commercial properties and places a different set of opportunities and responsibilities on the owners of those learned properties.? This distinction has a long legal history and is entrenched through fair use clauses, the academic exception, various tax exemptions, Bayh-Dole Act, etc. At the same time, the distinctiveness of the intellectual properties of learning is still very much open to debate and dispute. Let me show how the distinction is both missing and operative in the case of the BRCA1 and BRCA2 gene patents. The ethical issue here, then, is not the DNA?s relation to the body, before and after it is extracted. It has to do with how the patent is used by those who have rights in it.? In the U.S., along with Myriad Genetics, which is located in Salt Lake City, the other party with rights to these gene patents is the University of Utah Research Foundation. The Foundation seeks ?to promote, conduct, encourage and facilitate research, development and dissemination of knowledge, and the application of knowledge in all fields of learning.? One way of achieving that goal is to direct a portion of the licensing fees paid to the Foundation for such patents to more research. This might well seem justified until one realizes that there is another way of addressing the responsibilities that arise from the creation of intellectual property in the name of learning and the development of knowledge.? Seven years earlier, Cancer Research UK won its case to extend its UK patent for the BRCA2 gene (based on the work of Mike Stratton funded by Cancer Research UK) to all of Europe. Many researchers applauded and welcomed this extension of patent rights because Cancer Research UK grants royalty-free access to BRCA2 for publicly owned and non-profit labs. This organization used the patent to protect the public?s right to benefit from BRCA2, while retaining an ability to license it to commercial enterprises. This is sometimes referred to as ?defensive patenting,? protecting an invention from being patented by others. In this case, a publicly funded agency is using the patent defensively ? should we call it ?ethical patenting? or ?public-interest patenting?? ? to keep this invention in the public realm. By a strange twist in this knowledge-based economy, Cancer Research UK allows for both public and commercial use of its patent, thereby breaking the (seemingly anti-capitalist) monopoly that can lead to undue commercial exploitation.? Public-interest patenting strikes me as recognizing the distinctive intellectual properties of learning. It responsibly honors the public trust involved in the funding of learning and learned inquiry. It is one way to redirect the university patent race, set off in the U.S. by the Bayh-Dole Act of 1980, into a matter of greater public good. Respond: make a comment Share: Email | Save as PDF | Print | Bookmark & Share |  |  More columns on Columns: Legal Publishing | from John Willinsky 
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7672 posts | 10617 comments ? SlawTips Spotting the Embezzler?
Thursday, September 15
How do you spot a person who is likely to engage in dishonesty within the firm, and how do you prevent it? ??Practice Be Creative
Wednesday, September 14 I believe that creativity is a skill that can be developed. I have to believe it because I am still working on colouring inside the lines. To enhance your legal? ??Research 5 Ways to Make an Easy-to-Remember, Ultra-Secure Password
Wednesday, September 14 Have several tips in draft, but came across (hat tip to Ben Schorr) this really great post on Yahoo?s Upgrade Your Life blog: 5? ??Technology These summaries of selected recent cases are provided each week to Slaw by Maritime Law Book.
More information. You can receive these summaries by RSS or by email.
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Barristers and Solicitors - Duty to court - General principles - Duty of integrity The Adjudicative Panel appointed by the Law Society of Newfoundland and Labrador found a lawyer guilty of (a) failure to act with integrity and to avoid questionable conduct by initiating a sexual relationship with his female ... -
Criminal Law - Compelling appearance, detention and release - Interim release or detention of accused pending trial or appeal - Detention necessary to maintain confidence in the administration of justice (i.e., tertiary ground) A 16 year old youth was charged with second degree murder and attempted murder. The youth applied ... -
Administrative Law Natural justice - Constitution of board or tribunal - Bias - Apprehension of? A Commission of Inquiry, headed by Commissioner Gomery, was established to inquire into the federal Sponsorship Program and Advertising Activities. An interested individual, the Honourable Alfonso Gagliano, applied for judicial review to quash the Phase ... -
Company Law - Actions against corporations and directors - Practice - Costs - Security for? The plaintiff commenced an action seeking rescission of a settlement agreement resulting from prior litigation between the parties, a declaration that the settlement agreement was void and other corollary relief. The defendants applied for security ... -
Company Law - Actions against corporations and directors - Practice - Costs - Security for The plaintiff commenced an action seeking rescission of a settlement agreement resulting from prior litigation between the parties, a declaration that the settlement agreement was void and other corollary relief. The defendants applied for security ... -
Practice - Costs - Security for costs - General principles - Considerations The plaintiff (Attila Dogan) was a company incorporated in Turkey and carried on business principally in the Middle East. Attila Dogan had no offices in Alberta. The defendant (AMEC Americas Ltd.) was registered as an extra-provincial corporation in ...
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Bloggers who specialize in sharing news about trafficking have been threatened in the past, but this could be the first time that users of such social networks have been targeted. -
The National People's Congress last week released a proposed revision of the Criminal Procedure Law that would allow the police to detain suspects for up to six months, at a location determined by the police, in cases that involve state security, terrorism or serious cases of corruption. The existing law requires the police to notify families of detainees within 24 hours. If revised, the law will allow police to secretly detain suspects, if they believed notifying relatives or a lawyer "may hinder the investigation." Critics say the proposed legislation could legitimize and potentially increase the number of secret detentions. -
?I think we need to start looking at what it is about Canadian companies that causes us to lag behind the U.S. in the adoption of these technologies. And I think the broader question is, is that beginning to hurt Canadian competitiveness with our counterparts in the U.S.?? -
The state's courts must use social media such as Facebook and Twitter to better inform the public of its decisions and how they were reached, Victoria's most senior judges says. Chief Justice Warren predicts judges will tweet from the Supreme Court in a bid to fight back against what she has called the 'skewing' of information in the media, AAP reports. "I had a discussion with our media people as to how we can ramp up what we do and it will be our intention in the Supreme Court to use technology much more extensively," she told ABC Radio. -
Facebook has told pharmaceutical companies that as of August 15, they can no longer disable the comment feature on their Facebook pages. Although pharmaceutical brand pages will no longer be able to disable commenting on their posts, Facebook will, on a case by case basis, allow disabling of the commenting function on branded pages solely dedicated to a prescription drug. -
New York has never suffered severely from the effects of an earthquake. But the one just felt today-- reportedly?of 5.8 or?5.9 magnitude, centered around Virginia and affecting many Northeast metropolitan areas?-- ranks quite high on the list of tremors felt here.
There's no way to compare it to the really early quakes, as the Richter scale was only created in 1935. But quakes have hit the city as early as December 18, 1737, when a guesstimated 5.2 rattled holiday chimneys. But an equally dramatic tremor that?hit on Sunday,?August 10, 1884, has a few parallels to the recent one. -
Canada's justice minister has shot down a resolution by the Canadian Bar Association on mandatory minimum sentencing. -
Aug. 11 - A Toronto judge has ruled that ?adrenalized? police officers acted as aggressors at a peaceful political rally that led to dozens of arrests during last year?s G20 summit.
?The only organized or collective physical aggression at that location that evening was perpetrated by police each time they advanced on demonstrators,? Justice Melvyn Green ruled on Thursday. He was referring to a demonstration at Queen St. and Spadina Ave. on Saturday, June 26, 2010. Green stated police criminalized political demonstration, which is ?vital? to maintain a ?viable democracy.? -
How to get 1.3 million followers: buy them -
| Source: http://www.slaw.ca/2011/09/19/the-public-interest-patent-option/
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