[lighthawk]

According to 18.37.3 and 4, microorganisms cannot be excluded from patentability. I assume this is to allow patenting of things like probiotics. However, all humans rely their skin, mouth, and gut floras to be healthy. If the bacteria and yeast in that flora can't be excluded from patentability, are they considered not a part of the human animal? I understand that probiotics should be protected, but I wonder if someone could take advantage of this and claim patent on any naturally occurring microorganism by just isolating it and showing that it has some use.

Something else not specified in this section are viruses. Viruses are not strictly microorganisms, and no mention is made of them, but yet they can be manufactured and used for treatments- recently even for cancer:

http://www.mayo.edu/research/departments-divisions/departmen...

http://www.theguardian.com/society/2015/nov/02/fda-approval-...

If viruses could be excluded from patentability since they aren't mentioned, then any research or manufacturing done would not be patentable, and therefore some companies may hesitate to invest too heavily in research.

[aroch]

I think the spirit of this to allow for drastically modified yeast that produce, say, anti-cancer drug X to be patented. To make the biological equivalent of an industrial methods patent. Otherwise you wouldn't be able to protect your IP even though significant effort has gone into creating a chimeric yeast, because its just a collection of natural products (natural product's are currently not patentable).

Still, seems a little odd / slippery slope-y to me. On the one hand, I understand and, to some extent, agree with the need to protect / profit off what you've developed. On the otherhand, USPTO is pretty bad at biological patent screening and I can see a huge landrush to patent bacteria for no good reason.

(Full disclosure, I am in the process of patenting a modified natural product made by a bacteria)

[david-given]

I've never understood why people patent organisms. That's not an ethical thing --- I understand why people want IP protection.

It just seems like the wrong mechanism. Isn't the goal of restricting copying of your engineered organism better suited to the copyright system, rather than the patent system? Patents are for processes, right? But an organism is a thing, not a process. Isn't making an illegal copy of that thing a copyright violation?

[aroch]

Patenting an organism that you've tweaked, tuned and bent to your will is, in the end, no different than patenting a unique alloying mix or manufacturing machine.

They aren't patenting the organism per se, they're patenting the processes they've developed that make use of the organisms as the scaffold/factory. In the case I outlined previously of a yeast making a drug, you would want the patent on the cellular machinery that you've built to make the drug, which is the process.

[avar]

No, they're patenting the organism, or the end result. If you come up with an entirely different process to tweak the same organism by happenstance it's still covered by the patent.

This is pretty much the definition of how patents differ from copyright law, if I word-for-word write come up with the same work as you and I can prove that I didn't copy yours, it's not covered by copyright law.

With patents it doesn't matter that I came up with it on my own, you own the rights to the end result.

[Dylan16807]

That's an argument against patents existing at all. It's not really relevant to a discussion of what counts as patentable, because such a discussion assumes that patents are a valid mechanism.

[btilly]

Patents aim to trade a temporary bad result (monopoly) for a permanent good result (incentives to invent stuff).

Discussing exactly how bad the temporary bad result is informs discussion of when that trade-off is worthwhile. And this is true whether or not your conclusion is that patents are never OK or only sometimes OK.

[avar]

    > That's an argument against patents existing at all.

No it's not.

It's not an argument for or against patents, I'm pointing out that @aroch is wrong about them "patenting the processes".

That's not true for most of these patents, they're patenting isolated organisms, compounds or genes. I.e. the end result, not the process.

What incentives we should give individuals and corporations to advance biotechnology is another matter.

[nickpsecurity]

Exactly. It's why we tried to fight that crap back when they first tried it.

[aroch]

I'm not so sure, how is the end result any different than patenting a better manufacturing technique? That happens all the time in the macro-world.

Again, I'm not sure how I feel on whether it should be patentable or not. But, at least as I understand it, their intent is protection for something they've spent millions/billions developing -- no different than the process patents we have now.

[shostack]

Except it gets really interesting down the line once we create a new intelligent life form.

How would you feel if your body, consciousness, and everything you were was patented?

[hugh4]

I guess I'd prefer it to a situation where anyone at all could make a clone of me on their 3D printer slash uterus.

There are an awful lot of ethical and legal considerations when custom-designed intelligent organisms become possible, I'm not sure if IP is high on the list.

[logfromblammo]

If you want to copyright an organism, you had damned well better remove its ability to copy itself without your permission first.

As much of the utility in modified organisms is that they do copy themselves without your help, it seems as though the patent system would be much better suited, because there the enforcement burden is to prevent a human from using the organism to accomplish a specific purpose.

People sometimes forget that laws are pointless if they are not enforceable.

[aeorgnoieang]

> People sometimes forget that laws are pointless if they are not enforceable.

Or worse than pointless; actively harmful.

[cookiecaper]

Since copyright terms often exceed 150 years, I think we're better off with patents, which last for 20 years.

[chc]

In seeking to patent an organism, they are treating the novel organism as an invention. Copyright doesn't protect purely functional elements, only creative ones, which is why we have the idea of patenting inventions — so patent seems like the right system in this case.

[NoMoreNicksLeft]

Patents are for inventions. For mechanisms. It's only in the last few decades that it has been otherwise.

[PythonicAlpha]

This alone is a strike against humanity: Now local patent laws that are widely criticized are even protected by international contracts (and thus have to be implemented by all signers -- and can not be changed, even the US can not change it's laws or regulations, when the top courts want to change patent ability regulations, they can't.).

Is this about "free trade" or about profit-maximizing and guaranteeing for some big corporations?

[cryoshon]

The latter, of course. Novartis and other pharma giants are heavily behind the TPP because it would send their profits through the roof relative to currently.

[PythonicAlpha]

That is, IMHO, just the opposite of a "free market". "Chained market" fits it better.

[kuschku]

Also, the drug market and ISP market in the US are explicitly exempt from the free market and ISDS policy – meaning, in the US, you can still have monopolies, but in the rest of the world, protectionism becomes impossible.

Very dangerous, and sounds more like "Empire – Colonies" than "Equal partners in trade"

[PythonicAlpha]

That is exactly the impression I got from the TTIP negotiations. The EU "partners" where supposed to sacrifice any of their positions, but the US (and US-corporation-) side always insisted in theirs.

Unbelievable, that the EU does really accept all this! Only explanation: Those politicians are already bought.

[kuschku]

To quote Obama:

> The TPP means that America will write the rules of the road in the 21st century.

http://in.reuters.com/article/2015/11/05/trade-tpp-idINKCN0S...

It very much sounds like they’re treating the rest of the world as colonies.

[rhino369]

>Is this about "free trade" or about profit-maximizing and guaranteeing for some big corporations?

If the West is moving towards an information economy and is going to let the developing world take over manufacturing, the West wants to protect the information economy. The idea is we want to sell information for goods/services.

[PythonicAlpha]

Of course, some types of protection for own inventions is necessary ... but what here shall be protected, are the building blocks of life!

This is not about protecting own inventions, but about land-grabbing things that we did not invent, but nature!

The same thing, corporations try again and again. For example, once they copied cures of traditional Indian medicine, patented them in the USA and tried to forbid the free usage.

When this goes on this way, we all will soon have to pay a life-tax for having some type of DNA or bacteria in our bodies. Already, many cures are not invented, because to many patents on life building blocks make the creation to financially risky.

[hellbanner]

Can you support your claim that indian medicine cures were patented in the US?

[hellbanner]

Can't EDIT, so here is this:

http://www.theguardian.com/world/2009/feb/22/india-protect-t...

"In the first step by a developing country to stop multinational companies patenting traditional remedies from local plants and animals, the Indian government has effectively licensed 200,000 local treatments as "public property" free for anyone to use but no one to sell as a "brand"."

[PythonicAlpha]

Just use Google and you can yourself easily find enough references. Maybe I should add, that also European corporations did such things in Europe.

[akavel]

Re: "I wonder if someone could take advantage of this"

I believe that microorganisms patentability would indeed introduce a whole lot of problems for any human being. Starting with what's apparently already happening with plant patents -- see e.g. the story at:

https://news.ycombinator.com/item?id=7798919

[jforman]

Probably more important than probiotics are patents for biologically engineered bacteria, like those made by Ginkgo Bioworks. A lot of work goes into engineering bugs to execute specific chemical synthesis pathways, and it's trivial to reverse engineer.

[mcv]

But what about prior art? I understand newly created microorganisms being patentable, but how can you patent something that was already there?

[valarauca1]

Entire sections of the Human Genome are patented, so unlikely.

[damurdock]

Human Genome patents are no longer recognized in the United States of America. https://www.genomeweb.com/clinical-genomics/us-supreme-court...

[hellbanner]

What does that mean? If I have a child with part of that patented code, the "patent owner" could legally extract the DNA?

[damurdock]

Human Genome patents are no longer recognized in the US[0], but my understanding is that they were used to protect genetic tests and treatments. For example, Myriad Genomics held patents against the BRCA genes (which can indicate breast cancer risk) which they used to prevent competitors from creating BRCA-based panels.

[0]: https://www.genomeweb.com/clinical-genomics/us-supreme-court...

[lyschoening]

Wild-type micro-organisms are not currently patentable, while genetically engineered ones already are. And 18.37.2 requires a new use, method or process involving any "known products", so it would be the use not the organism that is patentable.