Things we do wrong, but also stupidly, Part 2

Ugh. I guess it's a good thing that the Supreme Court is hearing a case about the validity of patents for the BRCA1 and BRCA2 genes, thought to have a significant role to play in whether a woman is susceptible to developing breast cancer, since it means that the awarded patents might be overturned, but the mere fact that we had to get to this point means that the system is inherently and perhaps irretrievably fucked, like the idea of shareholder capitalism described in the previous post.

If you haven't already, please listen to perhaps the most-important-ever episode of the always-important This American Life, When Patents Attack. It's an hour that will thoroughly fuck your shit up, when you consider the idea that, technically, nearly every idea that underlies our current mobile-and-connected economy is probably being illegally produced, since nearly every idea contained therein is patented, most of them several times over, by competing, inconsistent, and incoherent patents.

Then, think about how much worse it is to patent a gene. Not one that some nifty scientist threw together in a lab, but one that exists in you, or your mom, or your sister, or a coworker of yours (unless you work in high tech, in which case it exists in one those species known as "women" that you have probably read about online. You know, the green ones in Star Trek?)

For reference, let's go back to the place patents are defined, Title 35 of the United States Code. Section 101 reads:

Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.

Emphasis mine. Think about that: "new and useful". How, for the love of all that means anything in the English language, can a gene, which already exists in people, be defined as new? This cannot possibly be accurate, in any possible interpretation of the English language as it currently or ever existed.

Now, if Myriad wants to invent a particular way of testing for this gene, which is new and novel, then by all means, patent away! But patenting the very idea of a gene, which they did not invent, nor did they discover the idea of? BS.

Usually, I'd put something here like 'I'm as pro-patent as the next guy, but...', but I'm not actually sure I'd mean it if I put it here. Do we really think that patents actually work? They certainly inspire innovation, which is good - it's good that a pharmaceutical company gets to make hundreds of millions of dollars if they invent a really kick-ass drug. But is giving that company the right to charge whatever the heck they want for 20 years actually the best way to realize these gains?

We all benefit when really important new drugs are created. Shouldn't we, as a country, just pony up and pay for it? There are lots of ideas for a prize system for drug discovery/invention, many basically proposing something like the X-Prize, given for revolutionary ideas like cheap spaceflight, self-guiding automobiles, and overcoming other important technical challenges.

This is, of course, completely independent of the question of the wisdom of patenting a gene. That's just batshit crazy. Hopefully the Supreme Court will agree that the actual wording of the US Code prevents the patenting of things that you didn't have a hand in inventing. Hopefully.