A Patent Denied

The Packers go to 0-3 and Matt Kenseth blows a tire late in the race falling back to 9th place in the championship standings. Oh well, at least winter is on the way.

This obscure bit of information caught my eye and without going into great detail, I think it is a good idea the Courts are not inclined to let private corporations patent pieces of the genetic code.

Biotech Patent Case May Tank: More than 100 biotech patent applications -- part of a land rush to protect bits of identifiable genetic markers -- will most likely be thrown out as inventions lacking practical use, as a result of a recent decision by the U.S. Court of Appeals for the Federal Circuit.

The Monsanto Co. case, closely watched by the biotechnology industry, is the court's first application of the patent protection standard of "substantial and specific" utility to nucleotide sequences known as expressed sequence tags, or ESTs -- a component of DNA.

The ability of the Federal Government to award limited term exclusivity in the form of patent protection is part of the legal basis for the entrepreneurship success of the American economy. There are limits to what can actually be patented and in this case the Court says the patent must cover something that actually works.

Monsanto was attempting to patent sequences of genetic material known to control gene expression. In other words, they wanted exclusivity over their knowledge of the specific order of base pairs making up a section of a chromosome. In insisting a patent have “substantial and specific utility” a standard is being set that knowledge about a structural component of a cell is not the same as a new design for a vacuum cleaner.

"In this field, ability to guess has outpaced the ability to do," said Genentech Inc. attorney Jeffrey Kushan of Sidley Austin Brown & Wood. "Tons of information is generated, but turning [it] into real products is more elusive," he said.

Simply identifying the 300 or so strings of nucleotides in an expressed genetic tag does not suffice to show a practical utility, it is only part of the gene map, according to Federal Circuit Chief Judge Paul R. Michel.

This is good. I don’t really want anyone, private or public, to have ownership rights over the knowledge of how life works. Once someone starts owning the genes it becomes tempting to believe you can own the gene pool and then act accordingly.