Monday, June 11, 2007

Ventner Institute Patent number 20070122826

The ETC (Action Group on Erosion, Technology and Concentration) is "dedicated to the conservation and sustainable advancement of cultural and ecological diversity and human rights. To this end, ETC Group supports socially responsible developments of technologies useful to the poor and marginalized and it addresses international governance issues and corporate power."

Last week they issued a press release alerting us of their concern at the Ventner Institute's latest venture.

"Published on May 31, 2007, the Venter Institute's US Patent application (number 20070122826) claims exclusive ownership of a set of essential genes and a synthetic "free-living organism that can grow and replicate" that is made using those genes. The Venter Institute has also filed an international patent application at the World Intellectual Property Organization (WIPO number WO2007047148, published April 27, 2007) which names more than 100 countries where it may seek monopoly patents...

Synthetic biologists may also be dismayed to learn that Synthia is being patented for what it is not. The patent application explains that the inventors arrived at their minimal genome by determining which genes are essential and which are not. Remarkably, their patent application claims any synthetically-constructed organism that lacks at least 55 of 101 genes that they've determined are non-essential. "All synthetic biologists developing functionalized microbes are going to have to pay close attention to the claim on a 'non-essential' set of genes. If someone creates another bug that lacks some of the same genes that Synthia lacks, will the Venter Institute sue them for infringing its patent?" asks Kathy Jo Wetter of ETC Group."

I can't see that standing the test of any serious legal challenge. Think about it.

List a set of 101 genes.
Declare them 'non-essential'.
Build a synthetic organism which doesn't contain the 101 non-essential genes.
Claim ownership of any synthetic organism that does not contain 55 or more of the 101 non essential genes.

It's a bit like saying yellow, blue and red painted walls are not essential in a building. I've built a house in which the walls have not been painted. I own that house. I therefore now own any building which does not have two or more yellow, red or blue walls. It's barmy just as claiming ownership of any lifeform which does not have one or more of a left leg, left arm and left ear - none of which are essential but hardly redundant either - would be barmy. But translate it into legalese and an intellectual property claim in a technically complex area and somehow it attains disproportionate and dangerous credibility.

This kind of 'claim it by omission' tactic always reminds me of the classic English contract law case, Felthouse v Brindley in 1862. Felthouse wrote to his nephew, Brindley, offering to buy a horse for £30 and 15 shillings and declaring that if he didn't get a response the deal was sealed. The nephew sold the horse to someone else and then got sued by his uncle. The judge, Justice Willes, threw the case out:

"It is clear that the uncle had no right to impose upon the nephew a sale of his horse... unless he chose to... repudiate the offer."

The nephew had no obligation to repudiate the unsolicited deal in writing.

The US Patent Office and WIPO should follow suit with this patent and throw it out too.

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