This is a multi-part message in MIME format. --------------821425044FEA73E4B16B3F2D Content-Type: multipart/alternative; boundary="------------2196AFF4DA236A24118872FC" --------------2196AFF4DA236A24118872FC Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 7bit It is, in fact, not just strained but perverse, and Mr. Kolodney's attempted justifications for it do not withstand close analysis. First, he states that this is the way all chemical compounds are patented. That is hardly a justification;; it, of course, merely restates the problem: chemicals are being patented without justification. It is not unusual in patent law, however, for arguments to be first stood on their heads and then used to justify their own premises. Then he notes that many chemicals may be naturally occurring but are unknown. That is, in its own amusing way, again a simple restatement, this time of the rule that discoveries of naturally occurring substances cannot be the subject of a patent. The fact that they are "not known to science" is the very premise for the rule against patenting such discoveries. If they were known before, they would not be discoveries! Yet, of course, they remain unpatentable. The next argument Mr. Kolodney offers is that it is "not known how to isolate or create them synthetically. The problem with that it is it is no basis for patenting the chemical, but for patenting the process, and all such processes, even those that produce otherwise naturally occurring chemicals, or even well-known ones, are available for patent protection. It is, in fact, somewhat tired hornbook law that though a chemical cannot be patented because it is already known or naturaly occurring, an inventive process that produces it can obtain complete patent protection. Finally, Mr, Kolodney's last argument is that the chemical's utility may not have been known until the inventor came along. Once again, this is an even more well recognized, though similarly tired, doctrine, that allows patenting of any newly found utility as part of the method exploiting that utililty, as long as it otherwise satisfies the standards of patentability. And that last part is what Richard Stallman has observed is strained. There is no need to patent the very chemicals on the basis of this strained reasoning, that simply because a chemical does not exist in nature at a particular concentration, it becomes patentable at that concentration. There are already means for allowing patentability of truly inventive ways of using new or old chemicals and there is no need to allow patentabilty on this strained basis except for what Richard originaly observed: the patent regime simply wants to offer as many patents as possible. And that it is why it is our job to oppose it. Mickey Davis Lawrence Kolodney wrote: > There's nothing strained about it. This is the standard for patenting > any chemical compound, not just genes. A chemical compound that is > useful (from a technology point of view) is generally only useful if > it can be isolated and manipulated in a laboratory or industrial > process to acheive some useful result. > > Many chemical compounds exist spontaneously in nature, but can't be > used in technological processes because either (1) they are not known > to science, (2) it is not known how to isolate or create them > synthetically, or (3) it is not known how to do something useful with > them. > > Thus the Patent Office grants a patent on a chemical to the first > person who teaches the world how to make and use the purified chemical > compound. Same with genes. > > -----Original Message----- > From: Richard Stallman [mailto:rms@gnu.org] > Sent: Friday, March 17, 2000 3:05 PM > To: rob@essential.org > Cc: upd-discuss@venice.essential.org > Subject: Re: [Upd-discuss] patenting genes > > I remain unclear on how it is that patents are granted for genes. > Why is > not the discovery of a gene a non-patentable discovery rather than > a > patentable invention? > > The justification that the patent system offers is that the gene > has been isolated in a pure form, and that that is a substance > distinct from what is found in natural chromosomes. > > It seems rather strained logic to me. It seems to reflect a > desire on the part of the patent system to stretch its rules > to permit more kinds of patents. > > _______________________________________________ > Upd-discuss mailing list > Upd-discuss@lists.essential.org > http://lists.essential.org/mailman/listinfo/upd-discuss > > _______________________________________________ > Upd-discuss mailing list > Upd-discuss@lists.essential.org > http://lists.essential.org/mailman/listinfo/upd-discuss --------------2196AFF4DA236A24118872FC Content-Type: text/html; charset=us-ascii Content-Transfer-Encoding: 7bit <!doctype html public "-//w3c//dtd html 4.0 transitional//en"> It is, in fact, not just strained but perverse, and Mr. Kolodney's attempted justifications for it do not withstand close analysis. First, he states that this is the way all chemical compounds are patented. That is hardly a justification;; it, of course, merely restates the problem: chemicals are being patented without justification. It is not unusual in patent law, however, for arguments to be first stood on their heads and then used to justify their own premises.Then he notes that many chemicals may be naturally occurring but are unknown. That is, in its own amusing way, again a simple restatement, this time of the rule that discoveries of naturally occurring substances cannot be the subject of a patent. The fact that they are "not known to science" is the very premise for the rule against patenting such discoveries. If they were known before, they would not be discoveries! Yet, of course, they remain unpatentable.
The next argument Mr. Kolodney offers is that it is "not known how to isolate or create them synthetically. The problem with that it is it is no basis for patenting the chemical, but for patenting the process, and all such processes, even those that produce otherwise naturally occurring chemicals, or even well-known ones, are available for patent protection. It is, in fact, somewhat tired hornbook law that though a chemical cannot be patented because it is already known or naturaly occurring, an inventive process that produces it can obtain complete patent protection.
Finally, Mr, Kolodney's last argument is that the chemical's utility may not have been known until the inventor came along. Once again, this is an even more well recognized, though similarly tired, doctrine, that allows patenting of any newly found utility as part of the method exploiting that utililty, as long as it otherwise satisfies the standards of patentability.
And that last part is what Richard Stallman has observed is strained. There is no need to patent the very chemicals on the basis of this strained reasoning, that simply because a chemical does not exist in nature at a particular concentration, it becomes patentable at that concentration. There are already means for allowing patentability of truly inventive ways of using new or old chemicals and there is no need to allow patentabilty on this strained basis except for what Richard originaly observed: the patent regime simply wants to offer as many patents as possible. And that it is why it is our job to oppose it.
Mickey Davis
Lawrence Kolodney wrote:
There's nothing strained about it. This is the standard for patenting--------------2196AFF4DA236A24118872FC-- --------------821425044FEA73E4B16B3F2D Content-Type: text/x-vcard; charset=us-ascii; name="michael.davis.vcf" Content-Transfer-Encoding: 7bit Content-Description: Card for Prof. Michael H. Davis Content-Disposition: attachment; filename="michael.davis.vcf" begin:vcard n:; tel;fax:216-687-6881 tel;work:216-687-2228 x-mozilla-html:FALSE org:College of Law;Cleveland State University adr:;;1801 Euclid Ave.;Cleveland;OH;44115; version:2.1 email;internet:michael.davis@law.csuohio.edu title:Professor of Law x-mozilla-cpt:;-1 fn:Michael H. Davis end:vcard --------------821425044FEA73E4B16B3F2D--
any chemical compound, not just genes. A chemical compound that is
useful (from a technology point of view) is generally only useful if
it can be isolated and manipulated in a laboratory or industrial
process to acheive some useful result.Many chemical compounds exist spontaneously in nature, but can't be
used in technological processes because either (1) they are not known
to science, (2) it is not known how to isolate or create them
synthetically, or (3) it is not known how to do something useful with
them.Thus the Patent Office grants a patent on a chemical to the first
person who teaches the world how to make and use the purified chemical
compound. Same with genes.-----Original Message-----
From: Richard Stallman [mailto:rms@gnu.org]
Sent: Friday, March 17, 2000 3:05 PM
To: rob@essential.org
Cc: upd-discuss@venice.essential.org
Subject: Re: [Upd-discuss] patenting genesI remain unclear on how it is that patents are granted for genes.
Why is
not the discovery of a gene a non-patentable discovery rather than
a
patentable invention?The justification that the patent system offers is that the gene
has been isolated in a pure form, and that that is a substance
distinct from what is found in natural chromosomes.It seems rather strained logic to me. It seems to reflect a
desire on the part of the patent system to stretch its rules
to permit more kinds of patents._______________________________________________
Upd-discuss mailing list
Upd-discuss@lists.essential.org
http://lists.essential.org/mailman/listinfo/upd-discuss_______________________________________________
Upd-discuss mailing list
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http://lists.essential.org/mailman/listinfo/upd-discuss