By Daniel Boehnen
—
Last week, The
Supremes once again stepped into an area of science/law where their limited knowledge
of both fields will create more harm than good. The Supremes' say that
the problem with isolated and purified DNA is that it is not chemically
distinct from naturally occurring DNA, like cDNA, but persons of skill in the
art recognize their reasoning is wrong. At a minimum, the bonding
structure at the ends of the isolated and purified DNA have been inherently and
unavoidably changed. Thus, the distinction between cDNA and purified and
isolated DNA is a difference of degree not of kind as reasoned by The Supremes.
The Supremes'
deeper mistake is they have, once again, been persuaded by those who conflate
the concepts of prior art patentability with the concept of statutory
patentability in order to get short term benefit in trade for long term
progress. It is perhaps true that isolating and purifying DNA is no
longer patentable today. But that situation is because the science of
molecular biology has progressed to the point where such advancements are now
relatively obvious to persons skilled in the art. That situation
certainly was not true in 1983 when an Amgen scientist isolated and purified
the DNA for erythropoietin and forever changed the world for patients with
kidney failure. And "but for" that earth changing event by Fu
Kwen Lin, who can say whether any of the subsequent discoveries by other Amgen
scientists would have occurred.
Therein lays the
future mischief that will result from The Supremes' latest decision. In
modern parlance, a core aspect of the patent system is to encourage the capital
formation which is needed to tackle the ever-increasingly-difficult challenges
that our society faces. Without the incentive to form the capital pools
necessary to tackle increasingly sophisticated and complex problems, technical
advances will slow to lower pace. Perhaps that's a good thing. Perhaps we have achieved such rapid technical advance over the past 30+ years
that we need to slow down for a while, i.e., to give the world a chance to
digest all that has been accomplished.
But
that slower pace will provide little comfort to patients having a decision
whose treatment lies hidden in the leaves of a plant growing in the Amazon
forest or inside an insect trapped in an amber rock buried in an African
mine. We have, today, many companies and scientists whose existence
is devoted to unlocking such compounds so that they can be used as
medicines. A core mischief of The Supremes' latest decision is that it
virtually assures that enormous work of isolating, identifying, and making
these compounds available for society will no longer be rewarded with patent
protection. That result won't deter scientists from trying to continue
their work; many scientist will still work hard, devoting their energy
to unlocking these secrets of nature. But The Supremes' decision will
most definitely deter the money-people, those who provide the money that
supports the efforts of those scientists. The money-people will look elsewhere,
and many of them will find other opportunities. With less monetary support,
there will be fewer scientists looking. And with fewer scientists
looking, there will be fewer discoveries. It's particularly unfortunate
that this decision comes at a time when the government, too, is cutting support
for science.
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