Patent Reality Check: The Hypocrisy of Duke University on Patents

By Gene Quinn
April 27, 2010

Almost two weeks ago, on Thursday, April 15, 2010, the Duke Institute for Genome Science & Policy issued a study that explained that it was their learned view that “exclusive licenses to gene patents… do more to block competition in the gene testing market than to spur the development of new technologies…” See Patents Block Competition, Slow Innovation in Gene Testing. In the news report published by Duke University, Robert Cook-Deegan, director of the IGSP Center for Genome Ethics, Law & Policy, is quoted saying that exclusive licenses, and presumably patents, are valuable for developing drugs and biologics that would not otherwise be developed without such protections. Cook-Deegan then laments the fact that patent protection is afforded to genes and explains that broad gene patent claims do such harm to innovation and do not help patients. I wonder if that includes the incredibly broad gene patents owned by Duke University?

There are few things in this world that irritate me more than hypocrisy. I know to some extent that it is probably true to say that everyone exhibits signs of hypocrisy on occasion, but it is a special level of hypocrisy when you come out swinging at a patent system, have your study thrown about the Internet and popular press as the battle cry to cut down the patent system and then it comes to light that since 1976 you have 716 issued US patents, 266 of which in some way, shape or form relate to genetics and 156 of which relate in some way, shape or form relate to both genetics AND cancer. Duke University… please approach the nearest mirror and look into said mirror. What is staring back at you is a University with an agenda.  You are vilifying Myriad Genetics for the same behavior you have engaged in. In the dictionary the term “hypocrisy” should say “see Duke University re: gene patents and innovation in general.”


To continue down the “exposing Duke hypocrisy trail,” why don’t we take a look at a sampling of Duke University patents and innovations that Duke University is seeking to lock up, or keep locked up, with patents that are obviously blocking innovation and are really a part of the problem.

  1. Materials and methods relating to the identification and sequencing of the BRCA2 cancer susceptibility gene and uses thereof
    US Patent No. 6,045,997
    Issued April 4, 2000
    Abstract: The identification and sequencing of the BRCA2 gene is disclosed as well as the amino acid sequence of the corresponding BRCA2 polypeptides. BRCA2 alleles including those with mutations in the BRCA2 gene which are associated with a predisposition to develop cancer, especially breast and ovarian cancer are also disclosed. The present invention further relates to polypeptides encoded by the above nucleic acid. The present invention further relates to uses of much BRCA2 nucleic acid and BRCA2 polypeptides, in particular in the diagnostic, prognostic or therapeutic treatment of cancer.
    Claim 1: A nucleic acid molecule consisting of the sequence set forth in SEQ ID NO:1, SEQ ID NO:2, SEQ ID NO:3, SEQ ID NO:4, SEQ ID NO:5, SEQ ID NO:6, SEQ ID NO:7, SEQ ID NO:8, SEQ ID NO:9, SEQ ID NO:10, SEQ ID NO:11, SEQ ID NO:12, SEQ ID NO:13, or SEQ ID NO:15, or portion of said sequence of at least 20 consecutive bases.
  2. Four genetic tumor markers specific for human glioblastoma
    US Patent No. 7,115,265
    Issued October 6, 2006
    Abstract: ABCC3, GPNMB, NNMT, and SEC61.gamma. are expressed at higher levels in glioblastoma than in normal brain tissue. These four genes and their expression products are useful for diagnosing and treating glioblastoma and for identifying potential anticancer drugs.
  3. Estrogen receptor modulators
    US Patent No. 7,238,793
    Issued July 3, 2007
    Abstract: The present invention relates to an estrogen receptor co-regulator and to antibodies specific therefor. The invention further relates to methods of screening test compounds for their suitability as estrogen receptor modulators and to methods of using same in disease treatment.
    Claim 1: An isolated nucleic acid encoding a mammalian repressor of tamoxifen transcriptional activity (RTA) protein, wherein said RTA protein has the amino acid sequence set forth in FIG. 1 (SEQ ID NO:1).
  4. Gene product over expressed in cancer cells
    US Patent No. 6,350,615
    Issued February 26, 2002
    Abstract: The present invention relates, in general, to a cancer-related protein and to a nucleic acid sequence encoding same. In particular, the invention relates to a protein over expressed in certain neoplastic cells, including breast and ovarian cancer cells, to its encoding sequence, and to diagnostic and treatment methodologies based on same.  See also US Patent 7,022,820, which shares at least a common Abstract.
  5. New HIV test to predict drug resistance
    Researchers at Duke University Medical Center have developed a highly sensitive test for identifying which drug-resistant strains of HIV are harbored in a patient’s bloodstream.  As of January 1, 2007, Duke reported that it had “filed for a provisional patent on the technology, and the Duke Office of Licensing & Ventures is considering various options to commercialize this technology.”
  6. Genes involved in the pathogenesis of anxiety disorders including OCD
    The Duke promotional material for this innovation explains that the global market for treatments is $4.5 billion and only 50% of patients currently respond to treatment.  It further explains that patents are pending and clearly is trying to promote this technology in a way that seeks to prey upon the greediness of corporate America.

I could go on… and on… and on… and on, but from this representative list above you start to get a fuller picture of the level of hypocrisy involved at Duke University.  In fact, if you actually read the above text associated with these Duke University owned innovations you see that there is not only hypocrisy involved, but there is financially self serving hypocrisy no less.  For example, while Duke University throws Myriad Genetics under the bus over its patents on the BRCA1 and BRCA2 genes tied to breast and ovarian cancer, Duke has its own patent on identification and sequencing of the BRCA2 cancer susceptibility gene (see #1 above).  Do you suppose Duke is upset that the Myriad Genetics technology is more advanced and desirable than its own?  What a coincidence don’t you think?  Talk about intellectual dishonesty!

Not only does Duke own a patent on the BRCA2 cancer susceptibility gene, but it also owns a patent on an isolated nucleic acid protein (see #3 above).  But according to the final decision in the ACLU challenge to the Myriad Genetics patent isolation is not enough to make something patentable.  So I guess Duke University can kiss this patent, and the many others like it, goodbye.

So the truth of the matter is that Duke University has many patents, including many gene patents, and is locking up innovation in numerous areas, including research into breast and ovarian cancer, research into obsessive compulsive disorder and into HIV-AIDS.  A quick glance through the Duke University patent portfolio shows all kinds of innovation blocking relating to all kinds of medical devices and treatments.  Yet, surprisingly their ire is raised by Myriad Genetics who just so happens to own the rights to competing technology.  How convenient!  Perhaps Duke should lead by example rather than engage in the hypocritical charade of “do as I say, not as I do.”

It is impossible not to notice that Duke University says one thing and does another.  If they are uncomfortable with the patenting of basic research then why are they doing it?  Why are they seeking to exploit the innovations developed at the University?  According to reports they are not particularly good at deriving revenue from their innovations.  In fact, in 2001 Duke ranked 22nd for total sponsored research expenditures and 27th for adjusted gross licensing income received.  During FY 2001 Duke reported an income of about $5.6 million, with a total of 116 patents were filed and with only 50 patents being issued. See Duke lags behind peers in revenue from inventions.

So excuse me for noticing that not only is Duke University engaged in an extraordinarily hypocritical propaganda mission, but they are not even good at exploiting their own innovations. Someone please tell me why then they continue to block research, development and commercialization? What possible justification can their be for innovation blocking (their charge not mine) and doing such a poor job that revenue is hardly worth the extraordinarily negative effect of blocking research?

Lets put this into perspective.  The Duke University budget for 2001-2002 was $1.183 billion.  See Trustees Vote Overall Budget of $1.1 Billion.  The Duke budget has since ballooned to $1.8 billion for 2009-2010. See Trustees Approve Flat 2009-10 Budget. So if Duke cannot get more than a few million a year from their innovations, and they admit that their patents like the patents of everyone else block innovation and research, at least in the gene patent space, why don’t they just do the right thing and donate their patents to the public? Why don’t they put their money where their mouth is? Why do must they continue to down the unsuccessful path they are following while at the same time destroying innovation and research?

Perhaps Duke University should take a lesson from Cook-Deegan, who says:

In the end, we must ask ourselves whether a given policy is ultimately in the best interest of patients. After all, although the patent system certainly seeks to harness business models and economic self-interest, it does so for the express purpose of furthering ‘progress in science and the useful arts’ and not for the purpose of generating profits.

Perhaps Duke should concern itself with its own affairs, lead by example and not be so worried about generating profits, particularly when they are patenting isolated nature.  They don’t seem particularly well versed at generating revenue from their innovations so it is downright mean to so recklessly interfere with innovation and research into such important areas like breast cancer and HIV-AIDS.

The Author

Gene Quinn

Gene Quinn is a Patent Attorney and Editor and President & CEO ofIPWatchdog, Inc.. Gene founded in 1999. Gene is also a principal lecturer in the PLI Patent Bar Review Course and Of Counsel to the law firm of Berenato & White, LLC. Gene’s specialty is in the area of strategic patent consulting, patent application drafting and patent prosecution. He consults with attorneys facing peculiar procedural issues at the Patent Office, advises investors and executives on patent law changes and pending litigation matters, and works with start-up businesses throughout the United States and around the world, primarily dealing with software and computer related innovations. is admitted to practice law in New Hampshire, is a Registered Patent Attorney and is also admitted to practice before the United States Court of Appeals for the Federal Circuit. CLICK HERE to send Gene a message.

Warning & Disclaimer: The pages, articles and comments on do not constitute legal advice, nor do they create any attorney-client relationship. The articles published express the personal opinion and views of the author as of the time of publication and should not be attributed to the author’s employer, clients or the sponsors of Read more.

Discuss this

There are currently 50 Comments comments.

  1. Chris Jagalla April 27, 2010 4:02 pm


    Do you think this is a case of left hand not knowing what the right hand doth or something more overtly related to sour grapes and hypocrisy? Ignorance is not an excuse, but I think it’s the possible source here.

  2. EG April 27, 2010 4:09 pm


    I’ve heard that Duke University, especially their IP/tech transfer group, has a very different approach to IP, including patents. That appears to be fairly well known amongst the university members of AUTM (Association of University Technology Managers).

  3. Gene Quinn April 27, 2010 4:53 pm


    I was always taught by the attorney who broke me in that you should never assume malice where incompetence is a viable explanation. There is something to that largely, and I don’t know whether it is incompetence, cluelessness, inconsistent views or hypocrisy. Having spent time at various universities I would legitimately say that the most likely explanation is inconsistent views held by those within the University. Getting those with tenure to march to the tune of any common drum is nearly impossible as far as I can tell.

    Having said this, the position does suggest an overwhelming amount of hypocrisy regardless of the underlying cause. Duke can’t have its cake and eat it too, or perhaps it is better to say that it is unfair for them to have their cake and eat it too. My blood pressure boiled a bit when I found the BRCA 2 patent to Duke, which then started to suggest a whole different level of things going on.

    I guess my position is that Duke should get its internal act together. If one of their folks comes out swinging at the patent system then they should not be surprised if defenders swing back. I am reminded of the saying that those who live in glass houses should not throw stones. I think Duke is living in glass houses and it is hard not to notice that this study gained tremendous popularity in circles wanting to trash the patent system. Those anti-patent folks herald Duke for its position, but never noticed that Duke has patents and perhaps even a vested interested in the outcome of the Myriad Genetics litigation.

    I continue to believe sunlight is the best disinfectant, and I hope this article brings some sunlight, and questions.

    Thanks for reading.


  4. Gene Quinn April 27, 2010 4:54 pm


    Can you expand a bit on your comment? What is the “different approach to IP”? I hadn’t heard about that.


  5. Steve M April 27, 2010 5:00 pm

    Welcome to Dupe University.

  6. Doug Calhoun April 27, 2010 6:24 pm


    I think I was taught the same lesson but in slightly different words:

    “When you have a choice between a conspiracy theory and a stuff-up, always go for the stuff up”


  7. HK April 27, 2010 7:04 pm


    Your characterization of the issues you’ve identified as hypocrisy (or incompetence, cluelessness, inconsistent views) evinces a basic lack of understanding of how any large research institution is composed, or the relation between the Institute for Genome Science & Policy and the patent activity you’ve identified specifically at Duke. To the point, for this behavior to be hypocritical, IGSP must have control over the patent activities you’ve cited–much of which took place before IGSP even existed. Regardless, your over-the-top rhetoric (including, eg, “not only is Duke University engaged in an extraordinarily hypocritical propaganda mission, but they are not even good at exploiting their own innovations”) does more to obscure than support your thesis.

  8. Gene Quinn April 27, 2010 7:58 pm


    We will have to agree to disagree. I will, however, point out that your failure to acknowledge the Duke hypocrisy is quite telling.

    Allow me to also point out that the Duke patents are owned by the University. So the myopic view of those in the Duke gene area undercuts Duke University, as well as show ignorance of patents and innovation generally.

    The reality is you are justifying a “cake and eat it too” mentality. That is intellectually dishonest. But by all means continue to act as if I am the problem and the ignorant one if it makes your own existence more bearable.


  9. Adam April 27, 2010 8:22 pm


    This article is really confusing, since you switch the subject between Duke University and Cook-Deegan so often. I thought Cook-Deegan just published some of his own research, but you make it clear that he is speaking for Duke University as a whole. Are you referencing something besides the press release about the research that you link to at the top of this article? Because that article says nothing about a Duke policy or statement.

  10. HK April 27, 2010 8:32 pm

    Gene —

    Thanks for the thoughtful response. Cook-Degan’s findings do not conflict with Duke’s patenting of inventions because his conclusion is that “gene patenting itself is not necessarily the main problem. Rather, he says, the culprit is a troublesome combination of overly broad patents that are exclusively licensed to single companies.” You haven’t given any information to indicate whether Duke’s licensing practice is overly restrictive so as to qualify as troublesome. In fact, low licensing revenue could indicate the opposite.

  11. Gene Quinn April 27, 2010 8:47 pm


    You are missing the entire point. Cook-Deegan suggests that research and innovation is being curtailed due to the threat of patent infringement. Duke has a rather substantial patent portfolio. Therefore, Duke is curtailing innovation and research through the threat (real or not) of patent infringement.

    So tell me, if overly broad patents is the problem and Duke isn’t making much money licensing, why don’t they just donate them to the public? You have to admit that if Myriad’s patents are overly broad then Duke has a lot of overly broad patents themselves.

    Also, I find it extremely interesting and quite telling that you have not addressed the fact that Duke has at least one patent on BRCA2 genes. Sounds like Duke is rather jealous to me.


  12. David Koepsell April 28, 2010 1:19 am


    Are you aware that at a university, professors have the freedom to research and write about their results without passing some sort of ideological litmus test? Are you aware that a university’s corporate policy and academic freedom often conflict? If Cook-Deegan’s results were somehow contrary to the university’s corporate policy, should his publication have been stifled? Is that what you are suggesting? Moreover, just because a professor finds in a study that some corporate policy of the university is somehow inefficient, wrong-headed, etc., doesn’t mean the university’s corporate administration necessarily must agree or fall in line. In all science, one study doesn’t a definitive fact make. Science requires confirmation over time, follow-up studies, etc. There is necessary, admirable, and well-intentioned respect for academic freedom at the best universities because not every researcher agrees, and only through conflicting points of view and open research can the truth eventually be discovered. It’s not fair to call this hypocrisy.


  13. Aaron Johnson April 28, 2010 7:59 am


    I have to agree with David. This is not hypocrisy on the part of Duke, merely another example that running a university is much like herding cats. Unlike a corporation, Duke doesn’t, and shouldn’t IMHO, have the power to silence the opinions of faculty when and if those opinions differ with official policy, or even rational patent practice. I think Cook-Deegan wrote a wrong-headed article and I believe most of your readers think so too, but reasonable minds may disagree and university faculty have the right to publish without the need for university endorsement.


  14. EG April 28, 2010 8:22 am


    The only specific “odd” aspect about Duke’s program I can confirm relates to provisionals. If I recall correctly, their approcah is similar to only slapping a provisional cover sheet on top of an abstract or journal article. My memory on this may not be the best, but I do know that how Duke handled provisionals raised some “eyebrows” in the university tech transfer community.

  15. EG April 28, 2010 8:35 am


    I think you’re overreacting to Gene’s comment. Gene isn’t saying that professors don’t have the academic freedom to do research and publish their results. As Gene and I are aware of, you can’t and frankly shouldn’t impose unreasonable restrictions on publication of academic research. Normally, these restrictions are time-oriented to permit patent applications to be filed to avoid loss of rights, especially in absolute novelty jurisdictions such as Europe. in fact, it is extremely unwise to try to impose content restrictions on what is published because that will taint the “objectivity” of what is published, which can have significant legal ramifications later. Even corporations that fund such academic research, if they’re smart, won’t even ask to impose such restrictions, but generally only ask for the right to provide comments on what the researcher proposes to publish with no obligation to incorporate such comments.

    Instead, what Gene is pointing out is that one at a fairly high level at Duke (Cook-Deegan) says one thing, while Duke’s actions (large patent portfolio that includes patents on genes) says something diiferent. Also, Cook-Deegan is in an entirely different category from the average academic professor. When you have statements from folks this high up in an organiztation that don’t jive with their actions, that normally creates a huge PR problem, even in a university setting.

  16. Noise above Law April 28, 2010 8:36 am

    It’s not fair to call this hypocrisy.

    Let’s save that label for the lawyers.

  17. Gene Quinn April 28, 2010 10:52 am


    You say: “Are you aware that at a university, professors have the freedom to research and write about their results without passing some sort of ideological litmus test?”

    Response: Actually, I am not at all aware of that. Having spent a lot of time at various universities I can attest there is no academic freedom whatsoever unless you adhere to the liberal viewpoint. So you can pretend there is no “ideological litmus test” in academia, but you and I both know that is simply false.

    You say: “just because a professor finds in a study that some corporate policy of the university is somehow inefficient, wrong-headed, etc., doesn’t mean the university’s corporate administration necessarily must agree or fall in line.”

    Response: Characteristically you miss the point and misrepresent. Cook-Deegan did NOT question the corporate policy of Duke University. If he took Duke University to task that would be fine and I would have no problem with that. What he did was take Myriad Genetics, the USPTO and the patent system as a whole to task. He gave Duke a pass. That is hypocrisy and being intellectually dishonest. If he doesn’t like the BRAC2 gene patents of Myriad then he ought to say the same thing about the BRAC2 gene patents held by Duke University. To be intellectually honest he should throw Duke University under the bus for their enormously broad patents and unjustified attempts to block innovation and research into such important areas as breast cancer, ovarian cancer, treatments for mental disease and HIV-AIDS. Of course, he doesn’t have a problem with Duke’s policies, and that is where the hypocrisy lies.

    You say: “It’s not fair to call this hypocrisy.”

    Response: Of course it is. I don’t really expect you to get it, but everyone that can read understands that Duke is taking one position on gene patents that is self serving and inconsistent with the position take elsewhere within the University. That is by definition hypocrisy. So what I wrote was 100% correct and even you know that. Duke University is taking inconsistent positions. Why that is the case doesn’t matter to me at all. It is just important that the truth get out so that whatever Duke or Duke researchers say can be taken with a grain of salt and the biases known.


  18. Gene Quinn April 28, 2010 10:57 am


    You say: “merely another example that running a university is much like herding cats.”

    Never were truer words spoken or written!

    I agree Cook-Deegan should have the freedom to write whatever he likes, but what he wrote was disingenuous. While he may have great thoughts of himself and his work, the reality is he is much more likely to change Duke University than he is to change the patent system. He choose to throw Myriad under the bus. That is fine, but he ought to throw Duke University under the bus as well because Duke is hindering far more research and innovation with their large and broad patent portfolio.

    I am not suggesting that Cook-Deegan should not enjoy academic freedom. He should, and so should those with Conservative views (which we know doesn’t happen). But it is 100% fair to say that Duke as a whole is demonstrating hypocrisy. The Cook-Deegan study was used against the patent system, Myriad and gene patents in general. At the same time Duke University competes with Myriad and has an enormous patent portfolio, which they don’t even monetize very well.

    Call it what you like, but the biases are now out in the open.


  19. David Koepsell April 28, 2010 11:17 am

    GENE: YOU say:

    “Response: Actually, I am not at all aware of that. Having spent a lot of time at various universities I can attest there is no academic freedom whatsoever unless you adhere to the liberal viewpoint. So you can pretend there is no “ideological litmus test” in academia, but you and I both know that is simply false.”

    By the way, I am affiliated with the Foundation for Individual Rights in Education, a decidedly NON-liberally-bent not-for profit that has helped to fight for numerous campus conservatives’ rights of free speech on campus, as well as academic freedom in general. You should click my name and check out their list of successes and judge my political impartiality based on their great work. Below is a headline from a press release on a case I filed on their behalf. The point is, Gene, that while liberals do often dominate in the faculties, academic freedom means generally that every researcher should be free to pursue his or her research DESPITE any conflicts with the “party line” no matter what it is. You act as though a university is a single-minded, monolithic institution. It is not, thankfully, and consists of numerous viewpoints, various research programs, and often conflicting interests.

    “Another FIRE Victory Over Speech Codes: SUNY Brockport Settles Suit in Favor of Free Speech
    May 10, 2005

    BUFFALO, N.Y., May 10, 2005—The Foundation for Individual Rights in Education (FIRE) has won yet another remarkable victory over campus censorship and repression. Last week, the State University of New York at Brockport (SUNY Brockport) settled a lawsuit brought by FIRE Legal Network attorneys and agreed to repeal its unconstitutional speech code. The settlement marks the fourth victory for FIRE’s Speech Codes Litigation Project and requires SUNY Brockport to modify several college policies to make them consistent with the First Amendment. SUNY Brockport must also place notices of the changes on the Internet, in college offices, in college publications, and in the student newspaper. The lawsuit was filed in June 2004 on behalf of students Patricia Simpson and Robert Wojick by FIRE Legal Network attorneys Robert A. Goodman and Elizabeth A. Wells, both of the law firm of Arnold & Porter in New York City, and by attorney David R. Koepsell of Amherst, New York.

    “FIRE has struck another blow in the battle for free speech on campus,” remarked David French, FIRE’s president. “We will continue to confront speech codes until universities get the message: censorship is publicly and legally indefensible.”

  20. Gene Quinn April 28, 2010 11:23 am


    You say: “The point is, Gene, that while liberals do often dominate in the faculties, academic freedom means generally that every researcher should be free to pursue his or her research DESPITE any conflicts with the “party line” no matter what it is. You act as though a university is a single-minded, monolithic institution.”

    Everyone should be free to pursue research and not have their speech curtailed or lose their jobs simply because of their point of view. The reality, however, is that academic freedom applies only when what is being said forwards the liberal cause. Conservatives do not enjoy any academic freedom. You either know that or should know that to be true.

    Universities are not single minded in any sense other than in suppressing Conservative points of view.

    I know I have won the debate when you refuse to even address the inconsistent positions within Duke, the self serving nature of Cook-Deegan’s study, the fact that Duke University would profit on its own BRAC2 gene patents while Myriad loses their patent rights, etc. etc.

    You want to make this about academic freedom because the substance demonstrates bias at Duke University. If Cook-Deegan wanted to go after Duke University that is fine, but casting Myriad in a negative light while at the same time turning a blind eye to the same activity at Duke University demonstrates intellectual dishonesty. Perhaps Cook-Deegan knows more about the lack of academic freedom than you seem to know, realizing that if he went after his employer he would not be in his position for very long.


  21. David Koepsell April 28, 2010 11:27 am

    Gene, please pay attention to what I’m saying. Do you honestly think that he has any responsibility for Duke’s patent portfolio? What would you have had him do differently?

  22. Adam April 28, 2010 11:41 am

    Hypocrisy is simple: saying one thing, but doing another. Since Duke University has never said negative things about gene patents, and Cook-Deegan doesn’t have any gene patents, there is no hypocrisy here. It seems simple enough to me.

  23. Aaron Johnson April 28, 2010 11:49 am


    I think the larger point is that a researcher’s opinion on patents is not the same as the university’s position, no matter what the letterhead on the news article says. This actually warms my heart (bitter and shriveled, it may be), since Cook-Deegan can say whatever he wants while his institution goes right on filing gene patents.


  24. Noise above Law April 28, 2010 12:01 pm


    Once again it is you that needs to pay attention. Gene has more than once now suggested what Cook-Deegan should have done (the intellectually honest part).

    I will admit though – you made me laugh with your “ judge my political impartiality” line. While I genuinely applaud your fight to keep the topics of speech open, I ruminate that now, if you can draw the parallel to keeping the topics of patentability open, we would be making progress.


    You may want to pay attention such lines as “news report published by Duke University” as well as “the Duke Institute for Genome Science & Policy issued a study” before completely separating Cook-Deegan from the University and the Duke Institute. The use of a bully pulpit should be (and here is) rightly scrutinized. This was not some mere rambling by a lone professor or lawyer. This is yet another fight for the publlic’s perception concerning this country’s constitutionally provided right for IP protection (complete with soundbytes).

  25. David Koepsell April 28, 2010 12:27 pm


    Cook-Deegan was funded to do research, he did the research, he published the research (with his collaborators. The university, rightly, had no say one way or another in the publication or conduct of the research. Seems cut-and-dry to me, this is how research should be conducted. Now whether the University chooses to do something with their BRCA1 patent is up to them.


  26. Chris April 28, 2010 12:37 pm

    Gene, a couple of things.

    First, you misquoted Cook-Deegan. You make it seem like those are Cook-Deegan’s words, instead of Jim Evans’s words that Cook-Deegan was quoting. Like hypocrisy bothers you, nothing bothers me more than someone who misquotes, especially in an argument. It’s very AlGore-esque.

    Secondly, regarding your statements, “Actually, I am not at all aware of that. Having spent a lot of time at various universities I can attest there is no academic freedom whatsoever unless you adhere to the liberal viewpoint. So you can pretend there is no “ideological litmus test” in academia, but you and I both know that is simply false.”

    This is probably true in general for professors in the “liberal arts.” “Academic freedom” for professors in science or engineering at a major research institution (like Dook) is probably more closely tied into how much research grants they can bring in (i.e., how many millions of dollars are major corporations or the U.S. government willing to grant to the professor to run his or her research). That grant money pays for the profs’ assistant professors’ salaries, fellowships for the prof’s Ph.D. students, very expensive equipment, supplies, overhead, etc. The more money you bring in, the more you can research what you want to and criticize the higher ups in the institution.

    Usually the skilled inventors aren’t working at the university because they like the liberal atmosphere. Most of those “big fish” reaserchers at the universities get a healthy slice of the licensing pie for their patents. It’s a sweet deal – the university fronts all the prosecution and/or litigation costs, and then splits the royalties with the professor in charge (though of course the grantor often has their piece if it was their money). If the professor worked for Genetics MegaCorporation, Inc., their slice would be a lot thinner, and the term “academic freedom” would never even be a consideration.

    In my experience, at least some of the professors’ chances at getting grants are helped by politicking with the people who sign the checks, and those check signers often are so conservative that they’d make you look like Al Gore (even more than you already did above by attributing a quotation as original speech). This is especially true in the case of the various military research programs, which research everything from bullets to textiles to food to engines to computer software to cancer treatments.

    That being said, I agree with the gist of your article. It’s funny how they attack others’ BRCA patents with no mention of Dook’s own BRCA patents. Throwing in the jazz about how it’s not the patents that are the problem but the licensing of the patents doesn’t make it kosher.

  27. David Koepsell April 28, 2010 12:53 pm

    It would be interesting and helpful to know if Duke has defended its BRCA1 patents as Myriad does, or whether they engage in liberal licensing. Mary Claire King, who first discovered the BRCA gene, also has patents on variations of the BRCA genes, but has them in order to prevent exclusive licensing, and so that she can do testing using the sequences in her patents cheaply and allow others to as well, without worrying Myriad’s patents.

  28. EG April 28, 2010 3:20 pm

    “This is probably true in general for professors in the “liberal arts.”


    Having gone to one of the finest small liberal arts schools in the US (Carleton College) in the 1970’s and being one of the few “conservative” students on campus, I know the professors tended towards the “liberal” end of the political spectrum. But back then, I could at least speak my viewpoint without feeling ostracized by my peers or my professors, several of whom I’m still very friendly with. I certainly didn’t sense the intolerance on campus for conservative viewpoints that I see all too frequently on today’s campuses, especially large public universities. May be I was in a sheltered campus environment, but I don’t think so). And if you don’t toe the liberal dogma on campus now, with rare exception, your chances of being a professor (or staying one) in academia about slim and none.

  29. Gene Quinn April 28, 2010 4:49 pm


    You say: “Gene, please pay attention to what I’m saying. Do you honestly think that he has any responsibility for Duke’s patent portfolio? What would you have had him do differently?”

    I am paying attention to what you are saying and you are choosing to ignore the contrary positions. You love what the Duke study says because it supports your view of the Myriad-ACLU fight, but you apparently don’t like and are choosing to ignore that Duke is no different than Myriad. Very convenient.

    You say: “It would be interesting and helpful to know if Duke has defended its BRCA1 patents as Myriad does, or whether they engage in liberal licensing.”

    Whatever happened to the argument that the mere patenting of these types of things are bad because it strikes fear in researchers who then stay well clear of innovating and researching? How that argument is conveniently abandoned when it suites you. You can ask all you like about whether Duke enforces its patents or engages in liberal licensing, but the reality is you and others have been saying the Myriad patents should never have issued. What about the Duke patents that are just as broad? What about the Duke patents that rely on “isolation” as the human activity that supports patentability? What about the blocking of research and innovation into such important areas as breast cancer, ovarian cancer, HIV-AIDS, etc. etc.? Where is your outrage at Duke University?


  30. Chris April 28, 2010 4:53 pm

    Heh. Guess I went off on a tangent there. . . I agree with you in general. But it’s still not that way everywhere, at least not in my experiences in science and engineering-heavy research institutions. That’s my point.

  31. IANAE April 28, 2010 5:16 pm


    Even if Duke did believe that gene patents were bad for the world, which is not at all clear, that view would not be inconsistent with Duke obtaining gene patents.

    The important thing about patents is not that they strike fear into researchers, but that they strike fear into other researchers. Duke patents won’t inhibit Duke’s research, and Duke may even need a healthy portfolio to defend itself against all the other companies and universities who have a similar portfolio, just so its own researchers can get on with their work under the protection of a Mexican standoff or cross-license or similar arrangement. Duke’s R&D department has to do the best it can within the existing system, even if it happens to dislike the system.

    Another significant point is that Duke does not exist to benefit the world. Not even Duke’s research labs exist to benefit the world. If that were the case, no university would ever apply for patents. No stated position that the current state of gene patents is bad for the world, even on Duke letterhead, compels Duke to devote its entire existence to altruism. Duke exists (in pertinent part) to get its name on research and fund more research, and that purpose is best served within the current patent system by getting whatever patents they can get, and making whatever offensive or defensive use they can of them.

  32. Gene Quinn April 28, 2010 5:37 pm


    I wouldn’t say you went off on a tangent. I do sense we are largely in agreement as well.

    I just find it so funny that those who hate patents and support the ACLU travesty say things like —- even Duke University, a research University, admits that gene patents are bad, immoral, evil, hurt research, kill innovation, force you to sacrifice your first born, etc. etc.

    Obviously, my tongue is firmly planted in cheek here, but I am deriving great pleasure in the fact that the anti-patent folks have been thrown off their game and are arguing about academic freedom rather than wrapping themselves in what they thought was the righteousness of Duke.



  33. David Koepsell April 29, 2010 2:12 am


    If they make shark-jumping an Olympic sport, I’ll wager you’ll sweep the medals. What IANAE said hits the nail on the head. “Righteousness of Duke?” I never implied it, it would be bizarre to impugn to an entire university (or corporation, for that matter, though corporations tend to have more centralized operations, missions, and actions) either righteousness or evilness based upon isolated studies or practices. I am pleased, however, with the Cook-Deegan study, and like all scientific studies, its conclusions are provisional and contingent upon further confirmation or falsification. I look forward to future research on the matter.


  34. Gene Quinn April 29, 2010 10:03 am


    Thanks for your confidence in my shark-jumping abilities, but I have to wonder if you really understand the reference to jumping the shark. Your use of the term doesn’t make any sense. If you seek to compare me to the Fonz, then thank you. I do believe I am a rather cool patent attorney, although the bar is admittedly quite low.

    I am still waiting for your outrage at Duke University. Your silence is telling. You are pleased with the Cook-Deegan study and you know full well how it is being used by yourself and others in the anti-patent community. It is being used as the position of Duke University. It is referred to as the Duke study, and your silence with respect to condemning Duke for having broad gene patents that block innovation and research into cancer and HIV-AIDS is hypocritical.

    I am also enormously amused that you have not once addressed any of the substance here, instead weaving in matters of academic freedom and then a vague and wholly inappropriate reference to the one time popular sitcom Happy Days. Anyone can see you have lost the debate. You refuse to address substance and continue to make off-topic statements. I had a higher opinion of you and thought you would know when to move on. I guess not.


  35. Noise above Law April 29, 2010 12:42 pm

    thought you would know when to move on


    This falls perfectly in line with David’s previous posts.

    I am surprised that you are surprised.

  36. EG April 29, 2010 1:20 pm


    Given the nickname used to refer to attorneys/lawyers “shark jumping” may be in our DNA. Just kidding!


    How are you doing these days? Despite your warning, I still venture over to Patently-O, asbestos suit and all. Need some protection from all the verbal vitriol they sill sling over there.

  37. Noise above Law April 29, 2010 2:05 pm


    Awesome – thanks for asking. The changes keep me hopping, but the rewards are absolutely priceless.

  38. EG April 29, 2010 2:23 pm


    Good to hear all is well with you. I spun out a solo IP practice almost a year ago after my patent attorney brother Mark’s firm merged with a large GP firm. It’s done much better than even I could have expected and is currently quite sustainable. About to head south to Florida for some much needed R&R. Do stay in touch and if you do decide to venture onto Patently-O again, make sure to put on your asbestos suit.

  39. David Koepsell April 30, 2010 1:06 am

    I grew up on Happy Days, so yes, of course I know the reference. That episode is well-known as the moment the show went totally off the rails…. QED.

    I will save my outrage until I know how Duke uses their patents.(see comments 27 and 31). I know how Myriad uses their patents.

    enjoy the water, Fonzie

  40. David Koepsell April 30, 2010 1:16 am

    just to tally the opinions here:

    Those who think your claim of hypocrisy is off target: Doug, HK, Aaron, Adam, me, and IANAE

    on the fence: Chris

    wholly concurring with your assessment: EG, Noise

  41. Noise above Law April 30, 2010 7:40 am

    David’s talley makes it official – the loud majority means that they are “right”.

    But let’s take a closer look, shall we? Of your list David, I know that you, Adam and IANAE play loose with the understanding of the law to fit your own private agendas (sorry Adam – I don’t think you know the law, but you state opinions on the law that place you in the same class as the other two).

    Doug’s comment was more in agreement with Gene than with you.

    Aaron’s comment, while disagreeing on its face, is more in substance with Gene’s side than with yours.

    You missed Steve’s agreement with Gene.

    I never said one way or the other what I think of the opinion of hypocrisy (other than yours). I did point out that scrutiny of those who use a bully pulpit is a good thing. You don’t have an issue with that, do you?

    So you see, like most things associated with law, here too, your understanding is colored by your agenda and how you want things to be.

    So a bit more accurate of a talley:
    Disagree with Gene: DK, HK, Adam, IANAE (and I would consider HK’s the only opinion with some reason)
    Neutral: Me, Chris, Aaron
    Agree with Gene: Gene, EG, Steve, Doug.

    Funny how one’s viewpoint colors reality, isn’t it?

  42. EG April 30, 2010 8:44 am


    As you astutely point out, it does matter how you count “noses” and making sure all “noses” are accounted for.

  43. IANAE April 30, 2010 9:21 am

    NAL: “Funny how one’s viewpoint colors reality, isn’t it?”

    Funny indeed.

    I don’t mind you repositioning your own name in the tally (we all know how neutral you are about everything), but how you slotted Aaron’s “This is not hypocrisy on the part of Duke” into the “neutral” camp is beyond me. While we’re at it, you can’t really put Doug any closer to Gene than “neutral” based on his post.

    I do apologize for not giving any sort of reason for my opinion in post 31. I sincerely believed that I had given one or two decent ones.

  44. Gene Quinn April 30, 2010 9:41 am


    You say: “I know how Myriad uses their patents.”

    I cannot recall you ever pointing out that insurance typically covers 90% of the Myriad test, and Myriad also has a program to assist those who are uninsured. So the trouble you have with the Myriad patents seems to be that those with insurance or the resources to pay are unable to get a second opinion.

    I suspect you will go back to the blocking of research and innovation, but even the Duke study you like so much talks about it being very difficult but not impossible to innovate around the patents. So the reality is there is just a lot of whining from scientists who don’t want to have to actually innovate, and a lot of whining from those who are philosophically opposed to patents in general.

    To those who are philosophically opposed to patents why don’t you just move to a place where there is no patent protection? There are plenty of third-world countries where you could practice any patented invention you like because they don’t have patent systems and/or because those who innovate don’t obtain patents in those places. Those countries should be the Eden that you seem to be so searching for.


  45. Aaron Johnson April 30, 2010 9:44 am

    Because the conversation quickly moved from “what is hypocrisy in a university?” to “Is Duke espousing anti-patent beliefs?”

    I don’t think Duke is being hypocritical because I think that faculty can hold contrary positions without compromising their integrity, but that’s not the point anymore. I’m new to commenting here, so I think I’m missing some of the personal history and beliefs, however, if there’s an anti-gene patent camp, I don’t really want to be in it. I have my tribal tattoos to think of, y’know.

  46. IANAE April 30, 2010 10:11 am

    Aaron: “however, if there’s an anti-gene patent camp, I don’t really want to be in it.”

    I’m not trying to put you in it. The tally was of people “who think [Gene’s] claim of hypocrisy is off target”, and it looks like you were correctly pigeonholed.

    Nobody is taking sides for or against Gene generally, as far as I can tell.

    Gene: “To those who are philosophically opposed to patents why don’t you just move to a place where there is no patent protection?”

    Because it’s hot in most of those countries, and a strawman that big would be a fire hazard.

    There’s a huge middle ground between “love it” and “leave it”. That middle ground includes “work to improve it by advocating for change to policies you think could be improved”. Isn’t that what this whole blog is about?

  47. David Koepsell April 30, 2010 10:34 am

    sigh… the tally was merely of, as quoted directly from my comment, “Those who think your claim of hypocrisy is off target” #comment 40


    those who didn’t, (not on some opinion about gene patents in general)

    …so since that is exactly what Aaron said, he seemed to fit nicely there, and still does… Doug, I felt, expressed that the situation was not hypocrisy, but rather just a “stuff up”… but I could be mistaken. Most commentators seemed to understand the nature of universities, and the impossible ideological threshold that Gene wants to hold Duke to. Moreover, my reasons for saying Duke isn’t monolithically guilty of hypocrisy are both clearly stated, and so far unassailed. Of course, for Gene to win an argument, all he must do is say all others are losing it. That seems to be the measure. I just think it’s rather more complicated than Gene’s article lets on, and changing the topic to gene patents in general, as Gene is trying to do, isn’t helping his claim about Duke’s alleged hypocrisy. It’s a university, with different departments, varied interests, and academic freedom, so to expect some sort of unified point of view, much less immediate or concerted action on the basis of a study is naive, or nuts. Take your pick.

  48. David Koepsell April 30, 2010 2:54 pm

    anyway, stay cool, Fonzie
    I can’t help but enjoy watching your antics.

  49. Doug Calhoun May 3, 2010 12:04 am


    Duke is not the first organisation to suffer from institutional bipolar disorder over gene patents. I recall an interesting lunch hour session at an AIPLA October meeting in Washington in the mid-1990s. The Hugo gene mapping project was in full stride. From the outside it looked like the patent department at NIH was feeding the readout from the gene sequencing computers into its patent drafting word processors. A number of applications had been filed. It was before PAIRS had made patent prosecution a spectator sport, but NIH had decided to make its prosecution files available to the public in real time.

    The lunchtime session featured a biotech specialist attorney who had read one of these files. He summarised the first official action outlining the usual 102, 103 and 112 objections. What was different about this action though, was the 101 objection. Instead of the expected citations it included a copy of a letter that the head of the NIH had sent to the head of the USPTO stating that the NIH did not believe that genes should be patented.
    The attorney did not have any quick suggestions for responding to that one!

  50. IANAE May 4, 2010 11:32 am

    “The attorney did not have any quick suggestions for responding to that one!”

    I’m surprised an attorney was unable to come up with “I don’t think you should be giving away free stuff, but as long as you’re determined to give it I’ll take a dozen!”

    Not getting gene patents is only fair if everybody else is also not getting gene patents. Otherwise, all it means is that everybody else is getting gene patents except you, and what kind of way is that to run a business or research lab?