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The Free Speech Implications of Gene Patents

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4 Responses

  1. A.J. Sutter says:

    Is there a brief available yet on this case? In the meantime, some ignorant questions/comments, from a non-litigator:

    (a) Is the patentable subject matter argument really a Constitutional question, rather than a statutory one? Granting inventors “the exclusive right to their … discoveries” when those discoveries are laws of nature doesn’t seem to go against the Constitution per se.

    (b) One particular comment in the complaint seems outright mistaken, namely “One of the conditions for receiving a patent is to disclose publicly all information about the patented thing” (@25). That is quite different from the actual standard in 35 USC 112.

    Moreover, I’m not sure I see what’s distinctive about this patent from others, at the Constitutional level. E.g., suppose I have a patent on an electronic gizmo, and a competitor uses that gizmo without a license in connection with developing an improvement, combination or another product for possible commercial use. Before the commercial release of the product, competitor publishes information about its research (possibly even after deciding that it doesn’t want to patent the improvement). Leaving aside the question of damages for the moment, does competitor’s unlicensed use become non-infringing simply because of the First Amendment?

  2. A.J. Sutter says:

    BTW, I’m not disupting whether patents ever do, as a practical matter, impede medical research or other types of socially-valuable research and innovation. But there’s nothing inconsistent with both rejecting the conservative philosophical position of IPWatchdog and questioning the legal basis of ACLU’s arguments, especially the Constitutional ones.

  3. Rick says:

    So have they reached a verdict on this case yet? Or is it still in proceedings? And I have a potentially really dumb question, what do patents that are for genetic research look like? I’d imagine that they wouldn’t have patent drawings, or do they? I really don’t know, if someone could shed light on this that would be great!

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