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Comment on Koepsell’s “A methodical response to Chris Holman’s ‘review'”

My response to this post (made here because of length limitations on Koepsell’s blog comment feature):

Dr. Koepsell,

I already responded at length to some of the criticisms leveled against you in Comment on David Koepsell’s “Why I Believe Gene Patenting is Wrong”.

Let me comment on some of the above specific issues. First, as a patent lawyer–it does not bother me if you got some of the minor details of the existing patent system slightly wrong. First, the law is always changing. Second, the basic thrust of your points is valid, and anyway the little details do not affect your case against IP. Mr. Holman is simply evading your normative argument.

Third, it is extremely annoying that the patent bar tries to dominate the right to have an opinion on this topic–it’s as bad as feminists who say only women have a right to an opinion about abortion. It’s bad enough they parasite off of society thanks to patent law; they want all the victims to shut up, too! After all, if you aren’t an expert on IP law, you should not be allowed to say anything about it. And if you are an expert, there’s a 99.9% chance you’ll be in favor of it, just like government school teachers are happy to help pass along the state propaganda about the benefits and necessity of government thought control and policemen say the state is necessary, and so on. You write:

3.) Patent law does apply to discoveries, but they must be “new.” Now, this does not include discoveries of natural things that have long existed, which are not “new” and the case law is clear on this. The only “discoveries” that can then be logically patentable are those that are somehow inventive, which I argue genes are not, even in their “isolated and purified” state. Once again, this is an instance of Holman taking the conclusion of an argument I make out of the context of the argument itself, claiming it is an error rather than explaining the line of reasoning that leads me to my conclusion, and then saying I am merely wrong. We disagree, and I state my reasons in the book.

Holman’s objection here is a red herring, IMO. Who cares about legalistic technicalities about the subtle and ever-changing differences in patentabiltiy standards for discoveries versus “inventions”? (and though Holman points to the word “discoveries” in Sec. 101 of the Patent Act, the patent statute permits a patent for an inventions: hence its caption is “inventions patentable”; and thus it states that “Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor….” The “new and useful” part means it has to be an invention; in fact some patent lawyers I know claim not apparatus or methods, but “inventions,” as in: “2. The invention of claim 1, wherein…” — I cannot imagine a patent lawyer claiming “2. The discovery of claim 1, wherein …”. And this is why sect. 102 and 103 refer to the invention and that it must be novel, and non-obvious.

But in any event, this is fairly irrelevant. The point is that the patent law grants monopolies to a variety of “inventions” and some of these relate to genes. And that is morally offensive and unjustified, as Dr. Koepsell argues.

4.) As I state in the book, US patents do effect other jurisdictions thanks to the WTO and TRIPS agreements. … [from point 7:] US patents have extra-jurisdictional effect, as mentioned before, through WTO and TRIPS. As I argue, US IP law has a powerful influence on other jurisdictions.

This is correct as well–see my posts Russian Free Trade and Patents, IP Imperialism (Russia, Intellectual Property , and the WTO), Bush Wants More Jailed Citizens in Russia and China, and China, India like US Patent Reform. In fact, the US is without doubt the worst in the world when it comes to outrageous extraterritorial application of its laws, from antitrust to tax law to IP law.

6.) I do discuss Moore at length, I do point out it is a state case, and put it in the historical context that helped convince Celera’s attorneys to begin patenting genes. It is a well-known, historically important case in the development of the law regarding ownership issues in products of human tissues. I put it in that context explicitly in the book.

This makes sense to me.

7.) Patents do include a right to enjoin, I don’t see that leaving that out is a “serious misstatement” about patent rights, which I do mention include the rights to royalties and fees. In fact, the injunction right makes gene patents worse, so thanks to Holman for mentioning this as well.

Yes, this does make it worse, so it only supports your case; why Holman cites it as an example of your mistatement of patent law that undermines your case is not clear. (Though, thankfully, the ability to obtain injunctions was choked back a bit in 2006 in eBay v. MercExchange–but not enough. It is still possible to obtain patent injunctions. See, e.g., Transocean v. GlobalSantaFe (S.D. Tex. Dec. 27, 2006) (permanent injunction granted; leading to acquisition of defendant by plaintiff); and Tivo Inc. v. EchoStar Communications Corp. (S.D. Tex., Dec. 2, 2006) (injunction granted); TiVo Wins on Appeal: Permanent Injunction against EchoStar to be Reinstated. Both these cases are discussed in Robert H. Resis, Life after eBay v. MercExchange—The Strong Get Stronger. For an example of an ongoing royalty awarded instead of a permanent injunction, see Paice LLC v. Toyota Motor Corp. (Fed. Cir. Oct. 18, 2007). (See also CAFC Approves Compulsory License (but calls it an ongoing royalty”); Innogenetics: Forward Looking Damages Approved. For a more recent development in the eBay case, see MercExchange v. eBay: Injunction Denied Again; MercExchange Saga Over: eBay Just Buys The Patents. Moreover, as injunctions become harder to obtain, patentees simply turn to the ITC. See Eric Bangeman, Permanent injunctions getting scarce; patent holders turn to ITC.

But with or without injunctions, the patent monopoly is destructive and unjust, and the availabilty of injunctions only makes it worse and strengthens Koepsell’s argument.

9.) I have referenced Murray’s studies about the chilling effect of gene patents. There is certainly room for dispute, and more evidence is needed. Ultimately, my conclusion is based on the ethics, not the practical effect.

But advocates of IP usually based their argument on the claim that patents are needed and actually are a net benefit to society. But they have no evidence for this contention; all the evidence is against them. See my post Yet Another Study Finds Patents Do Not Encourage Innovation, my article There’s No Such Thing as a Free Patent, and Boldrin and Levine’s Against Intellectual Monopoly.

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