There are a lot of crazies coming out of the woodwork with respect to the ACLU’s efforts to have the patent laws of the United States declared unconstitutional. Perhaps you have heard, the ALCU is standing up for breast cancer patients because Myriad Genetics has patented genes. How awful really. Not that Myriad has patented genes, because that is factually not at all what has happened. What is awful is that the ACLU is telling lies and the public seems to be buying it, never mind the facts of the case or the lack of merit to the ACLU claims. On top of that, in an editorial published today, the San Francisco Chronicle wrote that the law of gravity is an abstract idea. Wow! How can anyone take anything the article says seriously when such a ridiculous statement has been made? Perhaps the San Francisco Chronicle should take the advice of Abraham Lincoln: “It’s better to keep your mouth shut and be thought a fool than to open it and remove all doubt.”
For those who can’t believe that the San Francisco Chronicle could be so uninformed, and reveal themselves to be uninformed without even knowing it, here is what the paper wrote:
Traditionally, the Supreme Court has held that no one is allowed to patent products of nature (like apples or gold), laws of nature (like E=MC squared) or abstract ideas (like gravity).
It is no wonder that the popular press is dying. Newspapers no longer are about truth, and increasingly to stay afloat newspapers are willing to say anything, regardless of accuracy, in order to attract readers, keep their readers or get people like me to give them free publicity for simply not getting it. Unfortunately, this is a trend that is gaining steam. The one time paper of record, the New York Times, is nothing more than a Fiction Paper. No one could hard call it a newspaper because when one things of a “newspaper” one thinks of truth and accuracy. The New York Times has long since lost any hope of being taken seriously. Maureen Dowd’s plagiarism is but the most recent in a growing list of cases where the New York Times gets things wrong, makes things up, or buries stories, such as the ACORN ties to the Obama Administration.
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It would seem that getting any reliable truth out of the popular press on any issue is difficult, if not completely impossible. Add to the equation that the popular press has never understood intellectual property, patents, copyrights and trademarks, and you can start to see that news reports on these issues are simply not reliable, and this case is no exception. For example, lets actually look at some of the claims that the ACLU alleges are unconstitutional under Article I, Section 8 (which grants Congress powers to issue patents), the First Amendment and the Fourteenth Amendment. Let us also remember that the claim is that these, and other claims, cover genes.
US Patent No. 5,709,999 is being challenged, specifically claim 1:
1. A method for detecting a germline alteration in a BRCA1 gene, said alteration selected from the group consisting of the alterations set forth in Tables 12A, 14, 18 or 19 in a human which comprises analyzing a sequence of a BRCA1 gene or BRCA1 RNA from a human sample or analyzing a sequence of BRCA1 cDNA made from mRNA from said human sample with the proviso that said germline alteration is not a deletion of 4 nucleotides corresponding to base numbers 4184-4187 of SEQ ID NO:1.
US Patent No. 5,710,001 is being challenged, specifically claim 1:
1. A method for screening a tumor sample from a human subject for a somatic alteration in a BRCA1 gene in said tumor which comprises gene comparing a first sequence selected form the group consisting of a BRCA1 gene from said tumor sample, BRCA1 RNA from said tumor sample and BRCA1 cDNA made from mRNA from said tumor sample with a second sequence selected from the group consisting of BRCA1 gene from a nontumor sample of said subject, BRCA1 RNA from said nontumor sample and BRCA1 cDNA made from mRNA from said nontumor sample, wherein a difference in the sequence of the BRCA1 gene, BRCA1 RNA or BRCA1 cDNA from said tumor sample from the sequence of the BRCA1 gene, BRCA1 RNA or BRCA1 cDNA from said nontumor sample indicates a somatic alteration in the BRCA1 gene in said tumor sample.
US Patent No. 5,753,441 is being challenged, specifically claim 1:
1. A method for screening germline of a human subject for an alteration of a BRCA1 gene which comprises comparing germline sequence of a BRCA1 gene or BRCA1 RNA from a tissue sample from said subject or a sequence of BRCA1 cDNA made from mRNA from said sample with germline sequences of wild-type BRCA1 gene, wild-type BRCA1 RNA or wild-type BRCA1 cDNA, wherein a difference in the sequence of the BRCA1 gene, BRCA1 RNA or BRCA1 cDNA of the subject from wild-type indicates an alteration in the BRCA1 gene in said subject.
US Patent No. 6,033,857 is being challenged, specifically claim 1:
1. A method for identifying a mutant BRCA2 nucleotide sequence in a suspected mutant BRCA2 allele which comprises comparing the nucleotide sequence of the suspected mutant BRCA2 allele with the wild-type BRCA2 nucleotide sequence, wherein a difference between the suspected mutant and the wild-type sequences identifies a mutant BRCA2 nucleotide sequence.
Obviously, these claims that are identified in the ACLU complaint simply do not cover genes, they cover diagnostic methods. So the ACLU is either lying in order to gain public support for its own agenda, or they and their attorneys know so little about patent law and reality that they simply do not understand that they have made frivolous claims that are wholly baseless. Either way, it is not good for the ACLU, and if I were the district court judge I would sanction the ACLU severely.
As for whether gravity is an idea or not, those familiar with gravity, which should be every man, woman and child on the planet, can readily testify that gravity is certainly not an idea. Gravity is a given, a constant, a scientific truth and most certainly not an idea. Whether you believe in gravity or not, its forces impact you and everything around you.
People often joke that the only two things that are certain in life are death and taxes. Well, some people simply don’t pay taxes, either because they avoid them through shrewd manuvering or because they simply don’t pay them and the IRS doesn’t force them to pay. The fact that we have to have a census ever 10 years ought to be proof to everyone that there are a lot of people that simply don’t pay taxes because if everyone paid taxes then we would have a yearly census. But I digress. The point I am trying to make is that those things that are certain in life really do not include death and taxes, they include death and gravity, which makes gravity far more than an idea if you ask me!
Thanks to IPBiz for bringing this San Francisco Chronicle editorial to my attention.