[Upd-discuss] patenting genes

[Alan Story]

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.
> 
> 
> 
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----------------------
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