Wednesday, November 03, 2010

Noonan on DoJ amicus brief in Myriad: It’s dumb. It shows a singular ignorance of the technology and the law at the same time.

The end of a blogpost at wsj (titled A Patent Mistake? DOJ’s Reversal on Genes Raising Questions ) has the text:

Kevin Noonan, a patent lawyer in Chicago who represents biotechnology companies, told Pollack that government’s stance might be wrongfully extended to protein-based drugs and antibiotics.

“It’s dumb,” Noonan said of the government’s brief. “It shows a singular ignorance of the technology and the law at the same time.”

The DoJ brief is likely based on policy, not on law, as perceived by the Department of Justice. There are many companies that don't rely on gene patents.

The amicus brief does have interesting text.


DoJ amicus brief in Myriad says no to patentability of genomic DNA

It is curious to see Dehmelt's work discussed in the brief, however inapt the comparison.

Pollack's story in the NYT [U.S. Says Genes Should Not Be Eligible for Patents ] begins

Reversing a longstanding policy, the federal government said on Friday [29 Oct 10] that human and other genes should not be eligible for patents because they are part of nature. The new position could have a huge impact on medicine and on the biotechnology industry.

from genomicslaw

It is not every day that one governmental entity (the DOJ) presumes to tell another (the PTO) that, despite everything it may think it may know within its area of expertise (patents), it has been going about things all wrong. But that, more or less, is what appears to have happened here. The New York Times’ Andrew Pollack notes that an absence of PTO lawyers signing on to the brief may indicate that the PTO “opposed the new position but was overruled by other agencies.”

It is extremely unlikely that the DOJ reached this conclusion completely on its own initiative. Which leaves us to speculate that the decision to reverse federal course on gene patents originated higher up the federal food chain. We have as yet seen no public indication that the White House is paying particular attention to the Myriad litigation. However, given the former-junior-Senator-from-Illinois’ interest in genomics and personalized medicine, and the obvious importance of gene patents to the future of personalized medicine, it would not come as a surprise to find that the White House has taken an active interest in the outcome of the Myriad litigation.

***See also

AIPLA Submits Amicus Brief in AMP v. USPTO


Blogger New said...

Although some gene patent proponents argue that this patent litigation is about legal precedent and reliance, I honestly think that this is one of those issues that is largely about one's politics and policy. Whether or not human genes are legally patentable is a question rather like the "if a tree falls in the forest" hypo. I've noticed that most biotech proponents, in particular, base their pro-patenting contentions on policy arguments, rather than on legal ones -- perhaps because there is no real legal answer. That being the case, although I'd like to read a Supreme Court opinion deciding this issue, perhaps this is really one for Congress to deal with.

5:21 PM  

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