The Great Patent Debate

A court recently decided a case in a manner that, if I had known that the case had existed and had known that it was being heard, I would have thought to be the only obvious way to decide. The issue before the court was whether a company could patent a gene. In the case in question the gene happened to be human, but the heritage of the gene wasn’t at issue. The issue was whether patents could be taken out on genes.

I would have assumed the answer to be no. I would have assumed that to have been the answer unless the applicant for the patent had a provable theological origin. Perhaps the creator of it all, if he or she ever chose to show his or her face in a manifestly tangible manner, show up in court and say, “look, before I took a rest on the seventh day I invented all of this shit, and I want to patent some of it” might have that right, but I had trouble with the logic of a piece of what was trying to be patented trying to patent itself.

Apparently so did the court.

But the hue and cry that always follows anything not continuing to hand the world on a platter to American business appeared to be in the offing: the court decided that genes aren’t patentable.

The shrieking of amazed and hurt protestation from business is always the same. “We can’t compete; this is not a level playing field; we will have to fire everybody; we will cut our R&D budget; we will move to Jamaica” – and more.

And so it has been in the gene decision.

But I did hear a different approach from one of the lawyers representing the losing patent holder. His approach will apparently be central to the appeal. It goes something like this.

"We acknowledge that things of nature obviously can’t be patented. But the thing in question is not a thing of nature. It is a thing my client invented in the lab. Yes it came from a gene, a thing of nature, but it has been brewed and stewed and screwed such that it is different in manners that can’t really be described but nonetheless exist. It may look just like a gene but it’s different in nuanced manners that make it not a gene at all."

I am seriously planning on using that logic to take out a patent on whipped cream.