Sunday, March 19, 2006

Michael Crichton assails Metabolite case but ignores the academic connection

An article by Michael Crichton in the New York Times on March 19, entitled This Essay Breaks the Law, raises some serious issues about patent law, but in turn is notable for some devilishly clever omissions. As noted elsewhere on IPBiz, it's sometimes what you don't say that counts.

Crichton begins with several scientific facts, of which the last two are:

• Elevated homocysteine is linked to heart disease.

• Elevated homocysteine is linked to B-12 deficiency, so doctors should test homocysteine levels to see whether the patient needs vitamins.

at which point Crichton begins:

ACTUALLY, I can't make that last statement. A corporation has patented that fact, and demands a royalty for its use. Anyone who makes the fact public and encourages doctors to test for the condition and treat it can be sued for royalty fees. Any doctor who reads a patient's test results and even thinks of vitamin deficiency infringes the patent. A federal circuit court held that mere thinking violates the patent.

IPBiz has emphasized the word corporation in Crichton's text. Crichton then talks about researchers: In 1986 researchers filed a patent application for a method of testing the levels of homocysteine, an amino acid, in the blood. IPBiz asks "researchers where?" The antecedent text ("corporation has patented") suggests that the researchers were at the corporation. This inference would be wrong.

Quickly jump to the article by Xenia P. Kobylarz in The Recorder on March 14: [Stanford University professor Mark A.] Lemley represents two university professors who patented the invention in dispute, and he said that a finding against his clients would overturn 25 years of case law. "It could mean DNA may no longer be patentable, or business method software in many cases may no longer be patentable," Lemley said. Hmmm, Crichton didn't mention that this patent came to us through the auspices of the Bayh-Dole Act through university professors, not from the evil corporation. Hmmm, Crichton didn't mention that another university professor is defending what is going on. [As noted previously on IPBiz, Professor Lemley is the person who misidentified Gary Boone as the inventor of the integrated circuit, in a publication in the Stanford Law Review. Prior to that, Lemley had asserted that the inventors of the transistor (Bardeen, Brattain, Shockley of Bell Labs] thought it was only good for hearing aids. But let's return to Crichton, keeping in mind that Crichton skillfully omitted the academic connection to the Metabolite case.]

Crichton continues, darkly:

In addition, there is the rather bizarre question of whether simply thinking about a patented fact infringes the patent. The idea smacks of thought control, to say nothing of unenforceability. It seems like something out of a novel by Philip K. Dick — or Kafka. But it highlights the uncomfortable truth that the Patent Office and the courts have in recent decades ruled themselves into a corner from which they must somehow extricate themselves.

For example, the human genome exists in every one of us, and is therefore our shared heritage and an undoubted fact of nature. Nevertheless 20 percent of the genome is now privately owned. The gene for diabetes is owned, and its owner has something to say about any research you do, and what it will cost you. The entire genome of the hepatitis C virus is owned by a biotech company. Royalty costs now influence the direction of research in basic diseases, and often even the testing for diseases. Such barriers to medical testing and research are not in the public interest. Do you want to be told by your doctor, "Oh, nobody studies your disease any more because the owner of the gene/enzyme/correlation has made it too expensive to do research?"

[IPBiz note: apparently, Crichton didn't hear about Merck v. Integra.]

The question of whether basic truths of nature can be owned ought not to be confused with concerns about how we pay for biotech development, whether we will have drugs in the future, and so on. If you invent a new test, you may patent it and sell it for as much as you can, if that's your goal. Companies can certainly own a test they have invented. But they should not own the disease itself, or the gene that causes the disease, or essential underlying facts about the disease. The distinction is not difficult, even though patent lawyers attempt to blur it. And even if correlation patents have been granted, the overwhelming majority of medical correlations, including those listed above, are not owned. And shouldn't be.

[IPBiz note: oh, those nasty patent lawyers. Here, the correlation is not owned, but rather a method using the correlation. And, the propriety of granting a patent on that method can be questioned.]

Crichton concludes:

Where does all this lead? It means that if a real estate agent lists a house for sale, he can be sued because an existing patent for selling houses includes item No. 7, "List the house." It means that Kobe Bryant may serve as an inspiration but not a model, because nobody can imitate him without fines. It means nobody can write a dinosaur story because my patent includes 257 items covering all aspects of behavior, like item No. 13, "Dinosaurs attack humans and other dinosaurs."

[IPBiz note: IPBiz has previously covered the patent on real estate listing, which is a bit more involved than Crichton suggests. Patents on sports moves, advocated by Robert Kunstadt (once of Pennie & Edmonds) in the 1990's, are a dead issue. Patents on plots for novels do not yet exist, although IPBiz covered the patent applications (and an article on JPTOS thereon). Thus, the horrors described by Crichton are like the dinosaurs of Jurassic Park, fabricated creatures designed to frighten. Like trolls, they are imaginary.]

Such a situation is idiotic, of course. Yet elements of it already exist. And unless we begin to turn this around, there will be worse to come.

I wanted to end this essay by telling a story about how current rulings hurt us, but the patent for "ending an essay with an anecdote" is owned. So I thought to end with a quotation from a famous person, but that strategy is patented, too. I then decided to end abruptly, but "abrupt ending for dramatic effect" is also patented. Finally, I decided to pay the "end with summary" patent fee, since it was the least expensive.

The Supreme Court should rule against Metabolite, and the Patent Office should begin to reverse its strategy of patenting strategies. Basic truths of nature can't be owned.

Oh, and by the way: I own the patent for "essay or letter criticizing a previous publication." So anyone who criticizes what I have said here had better pay a royalty first, or I'll see you in court.

Thanks to Steven Nipper at the InventBlog who has a post about Michael Crichton and the Metabolite case.


Blogger Lawrence B. Ebert said...

In this case, the two present corporate litigants were previously in the relative positions of licensee/sublicensee, so the present dispute looks a bit like a business deal gone bad.

The "idea" here is a correlation between compounds in warm-blooded animals. Apparently, no one had discovered the correlation prior to the three professors, and the validity of correlation was not even readily accepted by their scientific peers.

I think Crichton took a lot of liberties with his stage (eg, patents on sports moves, plots) but the real problem with this case may be Bayh-Dole, not what can be patented. Universities are going to come up with correlations and other tools, not generally finished products. The academics are more likely to be patenting "ideas" and Crichton should have pointed it out, rather than obfuscating "who" filed the patent.

10:01 AM  

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