This is a multi-part message in MIME format. --------------C9943D13809E2ABF2A04C24D Content-Type: multipart/alternative; boundary="------------CC428011C867C41970C88B06" --------------CC428011C867C41970C88B06 Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 7bit Alan has asked (I only receive his comments as quotes to others because I am apparently not in the loop, or on the list, to most of these exchanges) several "why can't we's" that should be addressed because of a particular feature of TRIPS which I believe, though I am not sure, I have communicated to Jamie in the past. Most, though not all of these patents can be avoided, and without any changes to TRIPS. As long as these patents are method or process patents, to the extent that they are medical therapeutic patents, TRIPS specifically alows all signatory countries to opt out. Thus, UK, and South Africa, for instance, could readily opt out of medical therapeutic patents and be in full compliance. Furthermore, there would be no need for compulsory licenses, and more importantly, no need to satisfy the truly absurd limitations the US and its cohorts imposed upon the procedures necessary to grant compulsory licenses, if these countries opted out, because it would be a blanket exclusion, requiring none of those procedures. A compulsory license would have to be issued on a case by case basis with extraordinary attention to procedural details and require compensation. Compensation, of course, would make the entire excercise illusory (which, of course, is why TRIPS was authored in this way. I do not know why they allowed for opting out of medical therapeutic process patents except perhaps the historical animosity to such patents worldwide, outside the US orbit). Opting out is simply opting out. Not recognizing or granting such patents, no compensation is required. The problem with this is that even though all countries so proceeding would be in full compliance wth TRIPS, the US would undoubtedly move, under special 301, to sanction each and every one of them for failing to provide "adequate" IP protection, even though we, too, are signatories to TRIPS and, assumedly, recognize that it states what adequate protections are. Mickey Davis Lawrence Kolodney wrote: > Alan, I don't disagree with either of your comments. I'm just > pointing out that gene patents are completely within the current > "logic" of the patent system. > > While there are those who beleive that the current patent regime was > handed down on Mt. Sinai along with the 10 commandments, I'm not in > that camp. Patent law is a social convention created by humans for > the benefit of humans. If it doesn't benefit humans, it can and > should be changed. > > -----Original Message----- > From: Alan Story [mailto:a.c.story@ukc.ac.uk] > Sent: Monday, March 20, 2000 8:51 AM > To: Lawrence Kolodney > Cc: upd-discuss@venice.essential.org; 'rms@gnu.org'; rob@essential.org > Subject: Re: RE: [Upd-discuss] patenting genes > > Lawrence: > > I appreciate the point that you make about the > distinction between inventions and discoveries. Still > there are other questions that can be asked and we > should never assume that full-blooded (sorry about the > pun!) patent rights are always the answer. Once we > appreciate that property rights should serve human needs > firsts and foremost and that property rights in > patents are created by the state, we can other more > interesting questions which don't "naturalize" the > current patenting regime as the only possible solution. > For example: > > 1) why can't we change the U.S. Patent Act ( and > TRIPS) to specifically exclude, by statute, the patenting > of gene discoveries ( of the type that Craig Venter is > applying for) and put a halt to "the sky's the limit" logic > of Diamond v. Chakrabarty? > > 2) Even if we allow the patenting of gene "inventions", why > should we not also work to require compulsory licenses for > such pharmaceutical patents so that all of the world can > enjoy the benefits of biotechnological breakthroughs? > > Regards > Alan Story > > On Mon, 20 Mar 2000 08:14:40 -0500 Lawrence Kolodney > <kolodney@fr.com> 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 > > ---------------------- > Alan Story > Kent Law School > Eliot College > University of Kent > Canterbury Kent UK > CT2 7NS > a.c.story@ukc.ac.uk > Ph. 01227 823316 > Fax 01227 827831 > > _______________________________________________ > Upd-discuss mailing list > Upd-discuss@lists.essential.org > http://lists.essential.org/mailman/listinfo/upd-discuss --------------CC428011C867C41970C88B06 Content-Type: text/html; charset=us-ascii Content-Transfer-Encoding: 7bit <!doctype html public "-//w3c//dtd html 4.0 transitional//en"> Alan has asked (I only receive his comments as quotes to others because I am apparently not in the loop, or on the list, to most of these exchanges) several "why can't we's" that should be addressed because of a particular feature of TRIPS which I believe, though I am not sure, I have communicated to Jamie in the past.Most, though not all of these patents can be avoided, and without any changes to TRIPS. As long as these patents are method or process patents, to the extent that they are medical therapeutic patents, TRIPS specifically alows all signatory countries to opt out. Thus, UK, and South Africa, for instance, could readily opt out of medical therapeutic patents and be in full compliance.
Furthermore, there would be no need for compulsory licenses, and more importantly, no need to satisfy the truly absurd limitations the US and its cohorts imposed upon the procedures necessary to grant compulsory licenses, if these countries opted out, because it would be a blanket exclusion, requiring none of those procedures. A compulsory license would have to be issued on a case by case basis with extraordinary attention to procedural details and require compensation. Compensation, of course, would make the entire excercise illusory (which, of course, is why TRIPS was authored in this way. I do not know why they allowed for opting out of medical therapeutic process patents except perhaps the historical animosity to such patents worldwide, outside the US orbit). Opting out is simply opting out. Not recognizing or granting such patents, no compensation is required.
The problem with this is that even though all countries so proceeding would be in full compliance wth TRIPS, the US would undoubtedly move, under special 301, to sanction each and every one of them for failing to provide "adequate" IP protection, even though we, too, are signatories to TRIPS and, assumedly, recognize that it states what adequate protections are.
Mickey Davis
Lawrence Kolodney wrote:
Alan, I don't disagree with either of your comments. I'm just--------------CC428011C867C41970C88B06-- --------------C9943D13809E2ABF2A04C24D 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 --------------C9943D13809E2ABF2A04C24D--
pointing out that gene patents are completely within the current
"logic" of the patent system.While there are those who beleive that the current patent regime was
handed down on Mt. Sinai along with the 10 commandments, I'm not in
that camp. Patent law is a social convention created by humans for
the benefit of humans. If it doesn't benefit humans, it can and
should be changed.-----Original Message-----
From: Alan Story [mailto:a.c.story@ukc.ac.uk]
Sent: Monday, March 20, 2000 8:51 AM
To: Lawrence Kolodney
Cc: upd-discuss@venice.essential.org; 'rms@gnu.org'; rob@essential.org
Subject: Re: RE: [Upd-discuss] patenting genesLawrence:
I appreciate the point that you make about the
distinction between inventions and discoveries. Still
there are other questions that can be asked and we
should never assume that full-blooded (sorry about the
pun!) patent rights are always the answer. Once we
appreciate that property rights should serve human needs
firsts and foremost and that property rights in
patents are created by the state, we can other more
interesting questions which don't "naturalize" the
current patenting regime as the only possible solution.
For example:1) why can't we change the U.S. Patent Act ( and
TRIPS) to specifically exclude, by statute, the patenting
of gene discoveries ( of the type that Craig Venter is
applying for) and put a halt to "the sky's the limit" logic
of Diamond v. Chakrabarty?2) Even if we allow the patenting of gene "inventions", why
should we not also work to require compulsory licenses for
such pharmaceutical patents so that all of the world can
enjoy the benefits of biotechnological breakthroughs?Regards
Alan StoryOn Mon, 20 Mar 2000 08:14:40 -0500 Lawrence Kolodney
<kolodney@fr.com> 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----------------------
Alan Story
Kent Law School
Eliot College
University of Kent
Canterbury Kent UK
CT2 7NS
a.c.story@ukc.ac.uk
Ph. 01227 823316
Fax 01227 827831_______________________________________________
Upd-discuss mailing list
Upd-discuss@lists.essential.org
http://lists.essential.org/mailman/listinfo/upd-discuss