[wordup] This Essay Breaks the Law

[Adam Shand]

From: http://www.nytimes.com/2006/03/19/opinion/19crichton.html

March 19, 2006
Op-Ed Contributor
This Essay Breaks the Law

By MICHAEL CRICHTON
• The Earth revolves around the Sun.

• The speed of light is a constant.

• Apples fall to earth because of gravity.

• Elevated blood sugar is linked to diabetes.

• Elevated uric acid is linked to gout.

• Elevated homocysteine is linked to heart disease.

• Elevated homocysteine is linked to B-12 deficiency, so doctors  
should test homocysteine levels to see whether the patient needs  
vitamins.

ACTUALLY, I can't make that last statement. A corporation has  
patented that fact, and demands a royalty for its use. Anyone who  
makes the fact public and encourages doctors to test for the  
condition and treat it can be sued for royalty fees. Any doctor who  
reads a patient's test results and even thinks of vitamin deficiency  
infringes the patent. A federal circuit court held that mere thinking  
violates the patent.

All this may sound absurd, but it is the heart of a case that will be  
argued before the Supreme Court on Tuesday. In 1986 researchers filed  
a patent application for a method of testing the levels of  
homocysteine, an amino acid, in the blood. They went one step further  
and asked for a patent on the basic biological relationship between  
homocysteine and vitamin deficiency. A patent was granted that  
covered both the test and the scientific fact. Eventually, a company  
called Metabolite took over the license for the patent.

Although Metabolite does not have a monopoly on test methods — other  
companies make homocysteine tests, too — they assert licensing rights  
on the correlation of elevated homocysteine with vitamin deficiency.  
A company called LabCorp used a different test but published an  
article mentioning the patented fact. Metabolite sued on a number of  
grounds, and has won in court so far.

But what the Supreme Court will focus on is the nature of the claimed  
correlation. On the one hand, courts have repeatedly held that basic  
bodily processes and "products of nature" are not patentable. That's  
why no one owns gravity, or the speed of light. But at the same time,  
courts have granted so-called correlation patents for many years.  
Powerful forces are arrayed on both sides of the issue.

In addition, there is the rather bizarre question of whether simply  
thinking about a patented fact infringes the patent. The idea smacks  
of thought control, to say nothing of unenforceability. It seems like  
something out of a novel by Philip K. Dick — or Kafka. But it  
highlights the uncomfortable truth that the Patent Office and the  
courts have in recent decades ruled themselves into a corner from  
which they must somehow extricate themselves.

For example, the human genome exists in every one of us, and is  
therefore our shared heritage and an undoubted fact of nature.  
Nevertheless 20 percent of the genome is now privately owned. The  
gene for diabetes is owned, and its owner has something to say about  
any research you do, and what it will cost you. The entire genome of  
the hepatitis C virus is owned by a biotech company. Royalty costs  
now influence the direction of research in basic diseases, and often  
even the testing for diseases. Such barriers to medical testing and  
research are not in the public interest. Do you want to be told by  
your doctor, "Oh, nobody studies your disease any more because the  
owner of the gene/enzyme/correlation has made it too expensive to do  
research?"

The question of whether basic truths of nature can be owned ought not  
to be confused with concerns about how we pay for biotech  
development, whether we will have drugs in the future, and so on. If  
you invent a new test, you may patent it and sell it for as much as  
you can, if that's your goal. Companies can certainly own a test they  
have invented. But they should not own the disease itself, or the  
gene that causes the disease, or essential underlying facts about the  
disease. The distinction is not difficult, even though patent lawyers  
attempt to blur it. And even if correlation patents have been  
granted, the overwhelming majority of medical correlations, including  
those listed above, are not owned. And shouldn't be.

Unfortunately for the public, the Metabolite case is only one example  
of a much broader patent problem in this country. We grant patents at  
a level of abstraction that is unwise, and it's gotten us into  
trouble in the past. Some years back, doctors were allowed to patent  
surgical procedures and sue other doctors who used their methods  
without paying a fee. A blizzard of lawsuits followed. This unhealthy  
circumstance was halted in 1996 by the American Medical Association  
and Congress, which decided that doctors couldn't sue other doctors  
for using patented surgical procedures. But the beat goes on.

Companies have patented their method of hiring, and real estate  
agents have patented the way they sell houses. Lawyers now advise  
athletes to patent their sports moves, and screenwriters to patent  
their movie plots. (My screenplay for "Jurassic Park" was cited as a  
good candidate.)

Where does all this lead? It means that if a real estate agent lists  
a house for sale, he can be sued because an existing patent for  
selling houses includes item No. 7, "List the house." It means that  
Kobe Bryant may serve as an inspiration but not a model, because  
nobody can imitate him without fines. It means nobody can write a  
dinosaur story because my patent includes 257 items covering all  
aspects of behavior, like item No. 13, "Dinosaurs attack humans and  
other dinosaurs."

Such a situation is idiotic, of course. Yet elements of it already  
exist. And unless we begin to turn this around, there will be worse  
to come.

I wanted to end this essay by telling a story about how current  
rulings hurt us, but the patent for "ending an essay with an  
anecdote" is owned. So I thought to end with a quotation from a  
famous person, but that strategy is patented, too. I then decided to  
end abruptly, but "abrupt ending for dramatic effect" is also  
patented. Finally, I decided to pay the "end with summary" patent  
fee, since it was the least expensive.

The Supreme Court should rule against Metabolite, and the Patent  
Office should begin to reverse its strategy of patenting strategies.  
Basic truths of nature can't be owned.

Oh, and by the way: I own the patent for "essay or letter criticizing  
a previous publication." So anyone who criticizes what I have said  
here had better pay a royalty first, or I'll see you in court.

Michael Crichton is the author, most recently, of "State of Fear."