Wednesday, March 29, 2006

More on the Crichton op-ed concerning Metabolite

The Reflector online of Mississippi State University has some discussion of Michael Crichton's op-ed in the New York Times on March 19, 2006.

Within the Reflector, Nathan Alday wrote:

As Crichton indicates, the patent system is fundamentally and frighteningly broken. The emphasis has moved from encouraging innovations-the stated purpose of patents in the U.S. Constitution-to encouraging greedy profiteers to extort both true innovators and others who could benefit from the technology. No process, observation or thought is safe from these so-called patent trolls.
Check out Crichton's article and see why the patent system is not just broken, but dangerously broken. As citizens and voters, we must make sure to take any steps we can-discuss the issue with each other, write our representatives and vote our minds-to ensure that patent law is reformed quickly and effectively.

I tried to post a commment on March 28, but nothing showed up. [UPDATE: it finally showed up.] It is somewhat interesting to note that Alday brought up free speech issues, but the refusal to post a comment on an internet board reminds one of some text in the Delaware case of Doe v. Cahill, 884 A2d 451.

Merely for history, here is the text of the comment, because you won't be reading it on the reflector:

Included herewith is a letter I sent to the New York Times about Crichton's article on March 19; the Times did not print it.

Michael Crichton's article ("This Essay Breaks the Law,"
March 19) conjures up frightening issues, which like
dinosaurs and trolls, may be presently more imaginary
than real. The patent at issue, US 4,940,658, derived
from university workers operating under a federal grant,
and thus comes to us through the Bayh-Dole Act. These
people are represented by a professor from the Stanford
Law School generally considered an advocate of patent
reform. In a different area, one recalls that the Eolas
patent, at issue in the Microsoft case, came from a
professor at UC/Berkeley and was ably defended in
re-examination by professors from Princeton and Michigan.
The claim at issue in the Metabolite case is
(schematically) a method of measuring a deficiency of X
in warm-blooded animals by assaying a body fluid for an
elevated level of Y and correlating an elevated level of
Y with a deficiency in X. X can be cobalmin or folate and
Y is homocysteine. This claim cannot be infringed merely
by thinking about the correlation or writing about the
correlation. In the current dispute, between two
companies, Metabolite and LabCorp, the argument by
defendant is that the correlating step is so vague that
the claim amounts to patent protection over a basic
scientific fact (the observed correlation) and thus is
invalid. People can disagree over the patentability of
methods employing correlations which were discovered as
the result of research, and the Supreme Court may shed
some light on this issue. What Crichton ignored is that
patents of this type, which are more of a tool to
accomplish an end than an end product, have been fostered
by the Bayh-Dole Act, and are the logical consequence of
basic researchers, such as government-supported
academics, entering the patent arena. The COX-2 patent of
the University of Rochester is an even more extreme
example of the phenomenon. Although there can be
legitimate concerns about what is being patented these
days, an inquiry into the source of the problem is also

[sent by email March 19, 2006]

At the time I emailed the leter to the New York Times, I
had not learned about the March 14 meeting on stem cell
patent issues, reported by the California Stem Cell
Report , which included the text: And that means WARF
wants a payment from California.

I doubt that taxpayers of California thought they might
be paying state agencies of Wisconsin for patent rights.
I doubt that taxpayers of New Jersey understand that they
might be paying California or Wisconsin for the privilege
of having New Jersey scientists work in the stem cell

Further, while I think the substance of the patent claim
in Metabolite (which came from Colorado University and
Columbia University) might be debated, one also recalls
that the Supreme Court already approved claiming a method
taking an advantage of knowledge from the Arrhenius
equation. In that case, the patent inventors were not
coextensive with the knowledge inventor (Arrhenius),
unlike the Metabolite case.

Crichton's op-ed did not come to grips with the
already-established baseline in patent law, placing it in
the category of a "Gambling in Casablanca?" remark.
Further, it did not come to grips with "who" is the
primary source of patents of this type, rendering
Crichton an unwitting Pogo.


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