The proper role and scope of government

[henry quirk]

"(there’s )a major difference between patenting the process by which a gene is fixed verses the actual corrected gene."

Wholly appropriate to patent the process, but not the gene corrected by the process.

And if the process is the protected (intellectual) property, then the kid and grand kids can't be held obligated to pay squat as none uses the process for profit (each benefited from the process, a benefit paid for by the parents...not very different from the benefit I draw from my car, an object chockablock full of proprietary machines and processes...I pay no royalties cause I draw no direct profit from using someone else's intellectual property, or using the physical expression of that intellectual property).

#

"if you are the grandkid, and your body contains some proprietary gene that you never consented to, then how can you be expected to pay for it?"

Indeed!

Let's say the (corrected) gene itself is rendered a property: at what point does patent law trump self-possession?

And: there's a whole whack of issues regarding 'consent' and 'intent' as well.

I think, even with the current antiquated state of patent/copyright law (versus contract law) it's nowhere as cut and dried as you paint it, tw.


And -- again -- it would be interesting to see the company try to reclaim its property from the kid or grand kids who refuse to pay the royalty.

[tw]

Originally Posted by glatt

The parents paid for the gene, so the kids are paid for. By the time the kids are ready to reproduce, the patent will probably have expired (20 year term from the date of file) so the grandchildren will be in the public domain. Besides, even if the patent hadn't expired yet by the time the grandkids came along, the company would have to get samples of the grandkids' DNA to prove that they contain their gene.

The example ignored a 17 year life expectancy for a patent. How facts get obtained was also secondary (since your DNA readily available and left everywhere for others to analyze). The point was about what is owned. What qualifies as a patent. Does not matter what service parents paid for. Did they purchase patent rights? And did they also purchase transfer rights? Those are two completely different purchases.

If company A owns an intellectual property called a gene, then the kids who have that repaired gene can be charged a royalty. Whether that is fair is and will always be completely irrelevant. The law is not fair. The law is legal.

So, can a company own a gene? What exactly is the intellectual property defined by a patent? That is what Congress is for.

If company A has a patent on blue-green steel, then anyone who makes blue-green steel must pay company A even though they have no business relationship (ie contract) with company A. Even if they made blue-green steel by accident. Because the existence of blue-green steel is covered by company A's patent.

Existence of a new (repaired) gene in any person could conceivably result in royalty payments ... if the law permits gene patents. And that is the point. What can be patented must be defined by Congress. Using an LED laser to 'exercise' a cat was once patented. Since then, (if I have it correctly), that exercise method is no longer patentable.

Henry Quick - again - the law is not fair. The law is legal. If that patented gene exists in your body, then company A can demand royalty payments. Patents are that cut and dry ... if genes can be patented. Even if your body created that gene due to genetic mutation or by accident due to a drug interaction. Company A still owns that intellectual property and can demand royalty payments.

And so this question must be answered in carefully and wordy detail. What exactly is the property that A owns?


The computer industry defined superior methods of resolving patent disputes. However Apple (Steve Jobs) has created major new incomes for lawyers and other 'we get rich by subverting innovation' types. Apple quietly collected numerous mobile phone patents, transferred them to a patent holding company (Digitube) which in turn created shell companies (Cliff Island, Hupper Island, etc) to hold those patents. Digitube describes itself as a patent acquisition and licensing company. Others call it a patent troll created by Steve Jobs.

Digitube then demonstrated their purpose in 2011 by suing for intellectual property in Kindle, EVO Design 4G, LG's Revolution and Optimus V, Droid, Lumina 710, Breakout, Blackberry, Galaxy SIII, Xperia 3G, ... virtually every cell phone except Apple's. Digitube also filed a complaint in the Commerce Department's ITC to have all other cell phone (except Apple's) be removed from the market.

Somewhere in murky discussions, Digitube eventually transferred patents to RPX; described as a defensive patent aggregator. A company designed to keep patents out of patent trolls and to protect client companies. In this case, to protect a consortium of LG, Samsung, HTC, Pantech, and Ericsson Sony.

In the computer industry, infringed patents were resolved by companies exchanging patent rights - harming lawyer's incomes. Apple has changed the playing field (laws unchanged) by making patents for mobile phones a rich new market for lawyers and patent trolls.

A consortium of Apple, EMC, Ericsson Sony, Microsoft, and RIM spent $4.5 billion to purchase 6000 Nortel Network patents to keep those patents out of Google's hands. At what point do patents do more harm that good?

Its not just a question of what exactly is defined by a patent. Congress must also address the purpose of a patent. Patent law that once made Silicon Valley innovation so productive has now been used to subvert mobile phone industry growth.

But again, that is why we need a Congress full of moderates. Not so many wacko extremists who make it virtually impossible to resolve patent law questions. Meaning courts will have to write (reinterpret) laws. Always necessary when Congress gets into a wacko extremist mode.

Can a gene be patented? A major question that is also a small part of a larger problem. What exactly can be defined by a patent?

[henry quirk]

"the law is not fair"

I never said it was, nor did I hint that it was, or that I though it should be.

The Law (and law makers/enforcers) is an ass (and it [and they] should be treated as any surly beast of burden, with a sturdy stick).

#

"If that patented gene exists in your body, then company A can demand royalty payments."

If that gene exists in 'my' body (and I didn't contract to it being there) then good luck, company A, in collecting (my point here: the Law is not to obeyed simply because it 'is' Law).

[tw]

Originally Posted by henry quirk

If that gene exists in 'my' body (and I didn't contract to it being there) then good luck, company A, in collecting (my point here: the Law is not to obeyed simply because it 'is' Law).

Again you have assumed the law is fair. Your assumption made obvious by your reasoning. You have assumed their royalties are not fair because you have no contract. Non-existent contracts are completely irrelevant. You are assuming that is not fair rather than grasping the law.

No contract exists between you and Company A - ever. If you accidentally make blue-green steel, then you are subject to royalty payments to Company A for using 'their' blue-green steel. That always was "cut and dry" patent law. Patent law applies even if no contracts ever existed.

If genes are patentable, then that 'fixed' gene in your body is subject to royalty payments. Does not matter why a gene was fixed. Or even if it was inherited. A patented gene only 'existing' means they can demand royalty payments.


Fortunately we have laws to protect us from others who have contempt for the law.

[xoxoxoBruce]

No, what he is saying is, it doesn't matter what the law is if it can't be enforced.

[henry quirk]

"Again you have assumed the law is fair"

Nope. Law is a stick, wielded by those motivated by self-interest...nuthin' fair or unfair about it...it just 'is'.


"You have assumed their royalties are not fair because you have no contract.

Nope. Never said anything about the 'fairness' or 'justness' of company A's claim. You should read what I wrote and not what you think I wrote.

##

"what he is saying is, it doesn't matter what the law is if it can't be enforced"

What I'm sayin' is, I don’t care what Law says -- enforceable or not -- if said Law presumes 'I' can be enslaved.

##

"Fortunately we have laws to protect us from others who have contempt for the law."

Contempt for Law (and lawmakers/enforcers) is what -- in the context of this thread -- separates 'individual' from 'cog'.

All this Law nonsense dredged up sumthin' from my deep memory that I'll now expand on over in 'my grinded gears'.

[tw]

Originally Posted by xoxoxoBruce

No, what he is saying is, it doesn't matter what the law is if it can't be enforced.

But he said,

What I'm sayin' is, I don’t care what Law says -- enforceable or not ...

IOW he does not care what the law says because anarchist beliefs make laws irrelevant. An anarchist principles says personal rights based in personal beliefs supersede laws. That and the resulting contempt for laws is completely irrelevant to this discussion.

Topic is patent law and what patent laws says about intellectual property (ie genes) rights. What happens if genes can be patented? Genes in a crop are protected no matter who breeds more sees from that hybrid seed. Or is it the resulting seed that is patented; not the genes?

If I understand it correctly, should you grow crops from that seed and not sell those crops or resulting seeds, then it is legal?

[xoxoxoBruce]

Ohferchristsakes, you keep expounding about what congress should do, and what should or should not be patentable.
We're talking about who pays in the gene case.