...although the patent is defined to apply to the actual molecule and not
the sequence itself, there's no way to use the gene without ending up making the molecule. Hence, if you use the gene in some way, you infringe.
Looks that way. Or, at least, if you want to use the gene, you have to pay royalties, assuming the patent-holder will allow you to at all. What I missed initially was that the utility clause doesn't mean that that utility is all you have rights to, but instead it grants you patent ownership over the molecule itself.
The document does seem to carry a large chunk of "Hey, our hands are tied. The law says these are the only reasons we can deny patents and the law says
everything is patentable if a human discovers it. If you don't like it, change the law and quit bothering us."
I know a few patent examiners, and I honestly think that is how the office feels. They don't think of themselves as something that has to make a lot of money, but as a government office. They really are just following the laws. In this case, perhaps, the laws suck, but there isn't anything the patent office can do about that. They have granted bad patents in the past, but basically, that's because patent examiners are kids fresh out of college who have little or no expertise in the fields they're examining for. Hence something that is trivially obvious (like one-click shopping) gets a patent because it sounds non-obvious to a non-expert.
Also bogus is their claim that patents stimulate inventors to "invent around" the patent. If you need to make use of a specific gene, you can't "invent around"
it; any other gene which made the same (or a very similar) protein product could easily be judged infringement in court because it's a pitifully obvious and
trivial change to the originally patented object.
I thought what they meant by "invent around" was that you'd use the existing patent description to obtain the gene, and then find new uses for it and patent those, referencing the old patent. You still have to pay royalties, but you save the cost of isolating the gene yourself. I think "around" here means like a shell, not like an evasion.
I also agree that 20 years is too long. That was laid down in a time when things just took longer to do. You'd patent an invention, and it might be 10 years before you got around to marketing it. It just doesn't take that long anymore to develop a new technology to the point where it starts to pay for itself (well, *most* new technologies), and the time should be shortened accordingly.
Not the real rusty
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