Unnecessary precautions Disclaimer: this is an opinion piece and also a rough draft, my reaction to the article, my frustrations with the system. Scope: This is mostly discussing utility patents,...
Unnecessary precautions
Disclaimer: this is an opinion piece and also a rough draft, my reaction to the article, my frustrations with the system.
Scope: This is mostly discussing utility patents, but touches on other areas of IP law as well.
Biases:
*Source(external) - "MIT Technology Review" is affiliated with the Broad Institute of Technology and MIT, which employ the lab and scientists granted the patent for CRISPR-Cas9. I haven't read any sources from the UC Berkeley side of the story, yet.
*Internal- I worked in biotechnology and pharma for many years and was involved with CRISPR technology (not the company) during the years that many of these initial patent battles were going on ~2013.
What I'm looking for:
*confirmation of my frustrations (validation),
*counter arguments (in the form of examples, when necessary),
*challenges to my assumptions and rigidity.
*Solutions, if any, I like to hear alternative ways we could do things, if we could at all. Different perspectives.
*Edits or feedback on how I could better organize my thoughts or make my points, I like learning as a writer and a communicator.
Not looking for defeatist attitudes in the form of comments like "this is just how things are, we can't do anything about it now so we should do nothing." But I understand if they happen, we all have a right to feel things and say them.
Body:
"CRISPR is a discovery of a natural phenomenon, not an invention."
It describes the application of something found in nature. Bacteria have used CRISPR as an immune-adjacent system for as long as we can remember, which, was not known until now, but first described in 1987 (https://www.ncbi.nlm.nih.gov/pmc/articles/PMC213968/).
My inclination is to say - this is like discovering electricity - something that is not patentable, nor licensable, but usable. This takes my lawyer mind,first, to "utility."
After that, my mind goes to “non-obviousness,” but what can be more obvious than that which we observe in nature ? The non-obvious becomes obvious the moment it is noticed. This becomes less obvious (pun intended) the further we get from the initial discovery.
The four requirements, as of today, required for a patent to be valid, according to the USPTO are:
Able to be used (the invention must work and cannot just be a theory)
clear description of how to make and use the invention
New, or “novel” (something not done before)
“Not obvious,” as related to a change to something already invented
Let us apply these requirements to CRISPR:
Is CRISPR able to be used? Yes
Is there a clear description of how to make and use the invention? Yes
Is it new or novel? Maybe? According to whom? Bacteria have been doing this their whole lives.
Is it non-obvious? According to the above definition, "of something already invented" - I suppose that's up for debate, because has anything ever been invented like CRISPR before? I would say yes, there have been other genome engineering tools predating CRISPR's discovery, TALENs and Zinc Fingers, just to name a few (https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3694601/).
I’ve never liked patents that involve genetic sequences, and whatever this once was, it has now become a headache. I want researchers to be able to do their research without thinking about who to pay, but I also want researchers to be paid for their efforts. I have no easy solution for this.
I feel like this is all about wanting to be remembered, combined with an unhealthy relationship with Greed - and we’ve decided monopolies are the best way for that conflict to be resolved. Remember, patents, in the USA, are, in brief, "the right to “exclude others from making, using, offering for sale, or selling” an invention or “importing” it into the U.S." It is a granted monopoly(https://www.uspto.gov/patents/basics/essentials#questions). Do we really need that in this day and age ? And are the burdens of proof and repercussions worth it ? (the average cost and time to file a patent has grown over time, and cuts into a significant portion of the patent lifespan itself).
I argue the IP field is trending towards trademarks and design patents- both areas with softer boundaries for entry(https://www.wipo.int/en/ipfactsandfigures/trademarks); Easier to secure, fewer restrictions on term lengths, and with almost equal payouts (because how can we forget, this is all about money, after all). Licensing, as we have seen, was also a pre-cursor to the state we are in, and a sort of band-aid to stop the hemorrhaging.
I don’t know what game of 4D chess MIT and UC Cal are playing, but I wish it would stop.
Breadcrumbs (unfinished thoughts):
*What happened in 2013 and why did the USA take so long to switch over to first to file when the rest of the world had already switched ?
*When and how did the EU switch to first to file vs. first to invent? What influences were at play, what factors? Does the EU like the system it has now? What other systems has the world considered or implemented?
*Who are the victims of these situations and, conversely, who do these systems benefit?
Appreciation
Thank you for taking the time to read, and respond, if you choose.
I think the patent system made sense when the inventions were largely mechanical in nature, and if you made a better whirligig, it made sense to have a company that makes whirligigs be protected...
I think the patent system made sense when the inventions were largely mechanical in nature, and if you made a better whirligig, it made sense to have a company that makes whirligigs be protected from copies of your clever idea.
I think it started to go off the rails when it became a strategic way for a massive company to control the market and restrict competition. It's almost like an arms race, where having a strong collection of IP gives you a tactical deterrent from someone else with a similar collection from coming after you. And the little guys just get ground to dust around the edges.
The only hope I know of for things like CRISPR is the fact that you can't patent an algorithm (i think?). But that ship probably sailed when they patented those mice, and the erosion of the limits on what can be patented is another place where late stage capitalism is capturing regulatory power and turning everything to shit.
I think so. It's important to have some kind of patent system, because the alternative is that, if you do invent or discover something, you just keep it secret to protect your exclusivity rights...
I think so. It's important to have some kind of patent system, because the alternative is that, if you do invent or discover something, you just keep it secret to protect your exclusivity rights instead. The world is better when people are encouraged to make their findings public.
Some of the details could be adjusted, but I think the world would be a much worse place without patent rights. Universities would be poached left and right. All developments would be secret. No generics would ever exist, instead of merely existing later, because no one would know how to make them to begin with. Companies and organizations would waste time and effort to do corporate espionage instead of doing things.
Anything that can be patented can be reverse engineered. If you don't register your patent, there's nothing to stop someone else from figuring out your process by its product and spinning up...
... because the alternative is that, if you do invent or discover something, you just keep it secret to protect your exclusivity rights instead.
Anything that can be patented can be reverse engineered. If you don't register your patent, there's nothing to stop someone else from figuring out your process by its product and spinning up production of their own. The only way to prevent that is to not sell whatever your patentable thing is, but then you can't generate revenue from it, or at least it becomes significantly more difficult to do so.
Is this really true? I feel like it is at least over-broad. Patents can cover, for example, manufacturing processes and tool designs that are not inherently obvious from the final product. Using...
Anything that can be patented can be reverse engineered
Is this really true? I feel like it is at least over-broad. Patents can cover, for example, manufacturing processes and tool designs that are not inherently obvious from the final product.
Using CRISPR as an example - if it were somehow kept secret, and only the final product (modified DNA sequences) were made public, how would you go about reverse-engineering that? The only obvious information you have is that there is a new method of modifying DNA that is better than current methods. (I'm not sure if CRISPR leaves obvious biochemical traces behind - for the sake of the argument, let's say it doesn't.)
My easy solution is research universities where researchers get paid reasonably good salaries but with bonuses for reproducible breakthroughs. All work becomes public domain for everyone else to...
I want researchers to be able to do their research without thinking about who to pay, but I also want researchers to be paid for their efforts. I have no easy solution for this.
My easy solution is research universities where researchers get paid reasonably good salaries but with bonuses for reproducible breakthroughs. All work becomes public domain for everyone else to build upon. This can be funded by proper taxation of industry.
Unnecessary precautions
Disclaimer: this is an opinion piece and also a rough draft, my reaction to the article, my frustrations with the system.
Scope: This is mostly discussing utility patents, but touches on other areas of IP law as well.
Biases:
*Source(external) - "MIT Technology Review" is affiliated with the Broad Institute of Technology and MIT, which employ the lab and scientists granted the patent for CRISPR-Cas9. I haven't read any sources from the UC Berkeley side of the story, yet.
*Internal- I worked in biotechnology and pharma for many years and was involved with CRISPR technology (not the company) during the years that many of these initial patent battles were going on ~2013.
What I'm looking for:
*confirmation of my frustrations (validation),
*counter arguments (in the form of examples, when necessary),
*challenges to my assumptions and rigidity.
*Solutions, if any, I like to hear alternative ways we could do things, if we could at all. Different perspectives.
*Edits or feedback on how I could better organize my thoughts or make my points, I like learning as a writer and a communicator.
Not looking for defeatist attitudes in the form of comments like "this is just how things are, we can't do anything about it now so we should do nothing." But I understand if they happen, we all have a right to feel things and say them.
"CRISPR is a discovery of a natural phenomenon, not an invention."
It describes the application of something found in nature. Bacteria have used CRISPR as an immune-adjacent system for as long as we can remember, which, was not known until now, but first described in 1987 (https://www.ncbi.nlm.nih.gov/pmc/articles/PMC213968/).
My inclination is to say - this is like discovering electricity - something that is not patentable, nor licensable, but usable. This takes my lawyer mind,first, to "utility."
After that, my mind goes to “non-obviousness,” but what can be more obvious than that which we observe in nature ? The non-obvious becomes obvious the moment it is noticed. This becomes less obvious (pun intended) the further we get from the initial discovery.
The four requirements, as of today, required for a patent to be valid, according to the USPTO are:
Let us apply these requirements to CRISPR:
I’ve never liked patents that involve genetic sequences, and whatever this once was, it has now become a headache. I want researchers to be able to do their research without thinking about who to pay, but I also want researchers to be paid for their efforts. I have no easy solution for this.
I feel like this is all about wanting to be remembered, combined with an unhealthy relationship with Greed - and we’ve decided monopolies are the best way for that conflict to be resolved. Remember, patents, in the USA, are, in brief, "the right to “exclude others from making, using, offering for sale, or selling” an invention or “importing” it into the U.S." It is a granted monopoly(https://www.uspto.gov/patents/basics/essentials#questions). Do we really need that in this day and age ? And are the burdens of proof and repercussions worth it ? (the average cost and time to file a patent has grown over time, and cuts into a significant portion of the patent lifespan itself).
I argue the IP field is trending towards trademarks and design patents- both areas with softer boundaries for entry(https://www.wipo.int/en/ipfactsandfigures/trademarks); Easier to secure, fewer restrictions on term lengths, and with almost equal payouts (because how can we forget, this is all about money, after all). Licensing, as we have seen, was also a pre-cursor to the state we are in, and a sort of band-aid to stop the hemorrhaging.
If the USA wants to encourage innovation, perhaps it is stifling it by its over-control and barriers to access and approval. If we look at the data, China is taking the lead in many aspects of IP, including sheer number of applications (https://www.wipo.int/edocs/pubdocs/en/wipo-pub-941-2023-en-world-intellectual-property-indicators-2023.pdf) and (https://www.wipo.int/en/ipfactsandfigures/trademarks). While I am not suggesting we go completely lax like China has been in the past and present, I think we should consider what we are trying to protect and what we are trying to promote.
I don’t know what game of 4D chess MIT and UC Cal are playing, but I wish it would stop.
Breadcrumbs (unfinished thoughts):
*What happened in 2013 and why did the USA take so long to switch over to first to file when the rest of the world had already switched ?
*When and how did the EU switch to first to file vs. first to invent? What influences were at play, what factors? Does the EU like the system it has now? What other systems has the world considered or implemented?
*Who are the victims of these situations and, conversely, who do these systems benefit?
Appreciation
Thank you for taking the time to read, and respond, if you choose.Thank you for engaging.
I think the patent system made sense when the inventions were largely mechanical in nature, and if you made a better whirligig, it made sense to have a company that makes whirligigs be protected from copies of your clever idea.
I think it started to go off the rails when it became a strategic way for a massive company to control the market and restrict competition. It's almost like an arms race, where having a strong collection of IP gives you a tactical deterrent from someone else with a similar collection from coming after you. And the little guys just get ground to dust around the edges.
The only hope I know of for things like CRISPR is the fact that you can't patent an algorithm (i think?). But that ship probably sailed when they patented those mice, and the erosion of the limits on what can be patented is another place where late stage capitalism is capturing regulatory power and turning everything to shit.
I think so. It's important to have some kind of patent system, because the alternative is that, if you do invent or discover something, you just keep it secret to protect your exclusivity rights instead. The world is better when people are encouraged to make their findings public.
Some of the details could be adjusted, but I think the world would be a much worse place without patent rights. Universities would be poached left and right. All developments would be secret. No generics would ever exist, instead of merely existing later, because no one would know how to make them to begin with. Companies and organizations would waste time and effort to do corporate espionage instead of doing things.
Anything that can be patented can be reverse engineered. If you don't register your patent, there's nothing to stop someone else from figuring out your process by its product and spinning up production of their own. The only way to prevent that is to not sell whatever your patentable thing is, but then you can't generate revenue from it, or at least it becomes significantly more difficult to do so.
Is this really true? I feel like it is at least over-broad. Patents can cover, for example, manufacturing processes and tool designs that are not inherently obvious from the final product.
Using CRISPR as an example - if it were somehow kept secret, and only the final product (modified DNA sequences) were made public, how would you go about reverse-engineering that? The only obvious information you have is that there is a new method of modifying DNA that is better than current methods. (I'm not sure if CRISPR leaves obvious biochemical traces behind - for the sake of the argument, let's say it doesn't.)
My easy solution is research universities where researchers get paid reasonably good salaries but with bonuses for reproducible breakthroughs. All work becomes public domain for everyone else to build upon. This can be funded by proper taxation of industry.
Collaboration, not competition.