01 November 2013

First Thing We Do Is, Kill All the Biostats

Sequenom is a diagnostic/testing company that devised a way to test for Down syndrome non-invasively. They've been in a patent fight over their tests for some time. Today's Times has some details. What's both interesting, and perhaps disturbing, about the case is exemplified in some contradictory text in the article.

On the one hand,
The new tests offered by Sequenom and several competitors take advantage of the fact that some DNA from the fetus can be found in a pregnant woman's blood and can be analyzed with new genetic techniques.

Note the "new genetic techniques". But later on
In her ruling, Judge Illston said that the presence of the DNA in the pregnant woman's blood was a novel discovery but could not be patented because it was a natural phenomenon. And claims in the patent over how to detect that DNA were not eligible for a patent because they involved conventional genetic techniques.

So, we have it both ways. At least in this write-up.

But more to the point, as quoted in the article
"It's hard to imagine patents on diagnostics surviving if that approach is taken," Christopher M. Holman, a law professor at the University of Missouri-Kansas City, said of Wednesday's ruling.

And, that I would agree. All those biostats out on the sidewalk, destitute, having to hit the dusty trail to New York to work as a financial quant. One question: how large a part of quants generally are the biostats? This piece from a few years ago says, about 1/3, if the data have the biostats counted with the general stats, 1/4 if they're really disjoint. And half of the remaining 2/3 work in the vampire squid colony in lower Manhattan.

While I'm by no means a fan of software patents, and most bio patents, in the latter a case can be made that such diagnostics/tests can be novel physical inventions, and thus meet the criteria for patenting as set down by The Founding Fathers. Unlike Myriad, in my opinion, what Sequenom has is different from attempting to patent the "natural phenomenon". One of the arguments against a patent is the notion of obviousness to a competent practitioner. Where that exists in statute, I can't find, but is repeated endlessly. Let's suppose that it is really in law. Then, in the case of medical diagnostics (and the jobs of all those poor biostats), the issue is obviousness in how the "conventional genetic techniques" (if truly "conventional") were structured. Ultimately, all new genetic techniques derive from conventional techniques, at some arm's length. Standing on the shoulders of giants, and all that. By this logic, no patent on a VOM could be awarded, since, after all, electrical current/resistance/voltage are all natural phenomena and lots of conventional meters existed. If Apple can get a patent for a rectangle with rounded corners...

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