A Licence to Use Your Genes?
Posted: Wed, 26 October 2005 | permalink | No comments
Science magazine (by way of Boing Boing) reports that "20 percent of human genes have been patented in the United States". As the Boing Boing article's title says, "20% of your genes are belong to them". So, it seems to me, that there are two reasonable courses of action:
- Attempt to get the USPTO to accept a claim of prior art, since you've been doing this gene thing for quite a bit longer than whoever filed the patent. This is probably doomed to failure, since the USPTO appears to be collectively sticking it's fingers in it's ears and singing "Mary had a little (cloned) lamb" any time anyone mentions such inconveniences as "prior art", "obviousness", or any of those other pesky impediments to granting a patent.
- Apply for a licence from the rightful (hah!) holder of the patent, to duplicate, use, and distribute (well, for some of us) the patented "technology". To be helpful, when you send your letter requesting a patent licence, you should also include a list of the names, addresses, and home telephone numbers of people in your local area who you honestly believe to also be infringing on the patent.
I wonder what the effect of a patent holder not responding to your request for a patent licence would be? In a fair world, I would expect the patent holder's ability to later enforce the patent (at least against you) would be diminished -- but in a fair world, this particular blog post wouldn't be written.
So, what happens if the patent holder denies you a licence to use their patent? Well, I would imagine you must cease and desist from any use, reproduction, or distribution of the patented technology. I can see the headlines now: "$PHARMECEUTICAL_COMPANY demanded that I kill myself". Maybe a few people who would prefer the eternal sleep could do it, just to make the point.
But even without that, the effect of a few thousand licence requests (received with local phone books attached) should be appropriately entertaining to watch.
This whole "patenting the human genome" thing almost makes me want the whole "Intelligent Design" thing to come out in favour of the Christian Fundies. If courts were to rule that there is a reasonable belief that God (or some other convenient Deity) did in fact design us noisy bipeds, then that would, surely, count as a fairly obvious prior art claim. For that matter, what if these drug companies are infringing on a celestial patent on the human genome? An omnipotent being capable of changing the heavens and the earth isn't someone whose patents I'd want to infringe.
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