Re: [asa] Wilson's "The Creation"

At 01:23 PM 9/9/2006, David Opderbeck wrote:

>.... If I invest in developing a public good, I can't "sell" what
>I've created to you, because you can obtain it for free, as it is
>non-rival and non-excludable. This means that no rational
>competitor will supply the good. ... ~ David

@ No rational competitor would do a lot of things unless he had
certain incompetent (or malicious) mentalities in "the government"
intervening on his behalf. This (below) is just the tip of the
iceberg of how ridiculous things have gotten. ~ Janice

The New York Times
OP-ED Section
Sunday, March 19, 2006

by Michael Crichton

THIS ESSAY BREAKS THE LAW

The Earth revolves around the Sun. The speed of light is a constant.
Apples fall to earth because of gravity. Elevated blood sugar is
linked to diabetes. Elevated uric acid is linked to gout. Elevated
homocysteine is linked to heart disease. Elevated homocysteine is
linked to B-12 deficiency, so doctors should test homocysteine levels
to see whether the patient needs vitamins.

Actually, I can't make that last statement. A corporation has
patented that fact, and demands a royalty for its use. Anyone who
makes the fact public and encourages doctors to test for the
condition and treat it can be sued for royalty fees. Any doctor who
reads a patient's test results and even thinks of vitamin deficiency
infringes the patent. A federal circuit court held that mere thinking
violates the patent.

All this may sound absurd, but it is the heart of a case that will be
argued before the Supreme Court on Tuesday. In 1986 researchers filed
a patent application for a method of testing the levels of
homocysteine, an amino acid, in the blood. They went one step further
and asked for a patent on the basic biological relationship between
homocysteine and vitamin deficiency. A patent was granted that
covered both the test and the scientific fact. Eventually, a company
called Metabolite took over the license for the patent. Although
Metabolite does not have a monopoly on test methods-other companies
make homocysteine tests, too-they assert licensing rights on the
correlation of elevated homocysteine with vitamin deficiency. A
company called LabCorp used a different test but published an article
mentioning the patented fact. Metabolite sued on a number of grounds,
and has won in court so far.

But what the Supreme Court will focus on is the nature of the claimed
correlation. On the one hand, courts have repeatedly held that basic
bodily processes and "products of nature" are not patentable. That's
why no one owns gravity, or the speed of light. But at the same time,
courts have granted so-called correlation patents for many years.
Powerful forces are arrayed on both sides of the issue.

In addition, there is the rather bizarre question of whether simply
thinking about a patented fact infringes the patent. The idea smacks
of thought control, to say nothing of unenforceability. It seems like
something out of a novel by Philip K. Dick-or Kafka. But it
highlights the uncomfortable truth that the Patent Office and the
courts have in recent decades ruled themselves into a corner from
which they must somehow extricate themselves.

For example, the human genome exists in every one of us, and is
therefore our shared heritage and an undoubted fact of nature.
Nevertheless 20 percent of the genome is now privately owned.

The gene for diabetes is owned, and its owner has something to say
about any research you do, and what it will cost you. The entire
genome of the hepatitis C virus is owned by a biotech company.
Royalty costs now influence the direction of research in basic
diseases, and often even the testing for diseases. Such barriers to
medical testing and research are not in the public interest.

Do you want to be told by your doctor, "Oh, nobody studies your
disease any more because the owner of the gene/enzyme/correlation has
made it too expensive to do research?"

The question of whether basic truths of nature can be owned ought not
to be confused with concerns about how we pay for biotech
development, whether we will have drugs in the future, and so on. If
you invent a new test, you may patent it and sell it for as much as
you can, if that's your goal. Companies can certainly own a test they
have invented. But they should not own the disease itself, or the
gene that causes the disease, or essential underlying facts about the
disease. The distinction is not difficult, even though patent lawyers
attempt to blur it. And even if correlation patents have been
granted, the overwhelming majority of medical correlations, including
those listed above, are not owned. And shouldn't be.

Unfortunately for the public, the Metabolite case is only one example
of a much broader patent problem in this country. We grant patents at
a level of abstraction that is unwise, and it's gotten us into
trouble in the past. Some years back, doctors were allowed to patent
surgical procedures and sue other doctors who used their methods
without paying a fee. A blizzard of lawsuits followed. This unhealthy
circumstance was halted in 1996 by the American Medical Association
and Congress, which decided that doctors couldn't sue other doctors
for using patented surgical procedures. But the beat goes on.

Companies have patented their method of hiring, and real estate
agents have patented the way they sell houses. Lawyers now advise
athletes to patent their sports moves, and screenwriters to patent
their movie plots. (My screenplay for "Jurassic Park" was cited as a
good candidate.)

Where does all this lead? It means that if a real estate agent lists
a house for sale, he can be sued because an existing patent for
selling houses includes item No.7, "List the house." It means that
Kobe Bryant may serve as an inspiration but not a model, because
nobody can imitate him without fines. It means nobody can write a
dinosaur story because my patent includes 257 items covering all
aspects of behavior, like item No. 13, "Dinosaurs attack humans and
other dinosaurs."

Such a situation is idiotic, of course. Yet elements of it already
exist. And unless we begin to turn this around, there will be worse to come.

I wanted to end this essay by telling a story about how current
rulings hurt us but the patent for "ending an essay with an anecdote"
is owned. So I thought to end with a quotation from a famous person,
but that strategy is patented, too. I then decided to end abruptly,
but "abrupt ending for dramatic effect" is also patented. Finally, I
decided to pay the "end with summary" patent fee, since it was the
least expensive.

The Supreme Court should rule against Metabolite, and the Patent
Office should begin to reverse its strategy of patenting strategies.
Basic truths of nature can't be owned.

Oh, and by the way: I own the patent for "essay or letter criticizing
a previous publication." So anyone who criticizes what I have said
here had better pay a royalty first, or I'll see you in court.

http://www.crichton-official.com/index.shtml

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Received on Sat Sep 9 14:29:30 2006