Tom Pittman's WebLog

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2008 August 18 -- Next

Michael Crichton is losing it.

The farther he ranges from his core competence (science), the lousier his "novel" is.

Next is his most recent novel, published in 2006. It's a loose collection of barely connected mini-plots organized around a paranoid and completely ignorant misunderstanding of the law, with a political agenda for changing it. Crichton is a scientist (actually a medical doctor), not a lawyer, and his ignorance shows. Even the Amazon reviews were largely negative.

Crichton's other novels are far more readable. If you want to understand Next, don't bother reading the 95-chapter story, just skip to the "Author's Note" at the end and read that.

Here follows a summary of the five points in his Note, and why they are bogus:

"1. Stop patenting genes"

Nevermind what the hysterical media -- including Crichton and the patent owners themselves -- say, you cannot patent genes. You can only patent new inventions, and genes were invented by God, thousands of years ago. They constitute "prior art" in the legalese terminology of the patent law. Crichton was kind enough to mention a particular patent, where "Myriad patented two breast cancer genes," which I was able to Google and find (on the Myriad website) the actual patent numbers, 5,693,473 and 5,709,999. Patents are public information, and they can be read in their entirety on the web. Obviously Crichton did not. I looked up 5,709,999. The abstract gives a good summary of what this invention is about:
The present invention relates generally to the field of human genetics. Specifically, the present invention relates to methods and materials used to isolate and detect a human breast and ovarian cancer predisposing gene (BRCA1), some mutant alleles of which cause susceptibility to cancer, in particular breast and ovarian cancer...

The invention also relates to the therapy of human cancers which have a mutation in the BRCA1 gene, including gene therapy, protein replacement therapy and protein mimetics...

There you have it. They have invented a method for isolating and detecting a particular gene that predisposes human breast cancer, not the gene itself, but a method for identifying if it's there. They also invented a protein replacement therapy. This is not the gene itself being patented, but certain diagnostic methods and certain therapies. Nobody owns the gene. Read it yourself. The important part is the claims. Any patent lawyer will tell you that. The claims here do not tell you what this gene is -- which would be a patent on the gene itself -- but only one way to know if it's there, and some of things you can do to prevent cancer if it is. Anybody can invent another (different) way to determine if the same gene is there, or another way to manufacture and administer the protein therapy, and this patent cannot stop them.

Now, I am not a geneticist, so I can't tell you how many different ways there are to discover if a particular gene is present. I suspect there is today only one workable method, and this patent uses it. It might even be overly broad and obvious in its specified methods, and thereby fail the patent law's "unobvious" test. The Patent Office is understaffed (and probably inadequately trained) for determining obviousness -- they certainly fail in the software patents arena -- and thus grant patents that they ought not, but that is strictly on the basis of existing law. And the incompetence of government employees. We don't need a change in the law, we just need better-funded Patent Office examiners.

"2. ...The use of human tissues"

Establishing better guidlines here is probably a good idea, but the law is already pretty good, if I read Crichton's own description correctly. He points out correctly that "if somebody takes my picture, I have rights forever in the use of that photo." That is true. When I was a professional photographer, I had to obtain signed model releases when I took somebody's picture. The research institutions that obtain your tissues for research have carefully crafted their releases -- and you must sign them, or they can't take any tissue -- to give them the right to run whatever research they want on the tissue they took, just as my standard model release gives me full right to use the photo I took any way I choose. If you don't want them doing more than one kind of research, then don't sign their release. Of course they might and can refuse to take any tissue at all. Then where would you be?

Crichton mentions the case of Dr.Catalona, who left his university but was not allowed to take tissue samples with him. That is perfectly right and proper; the university paid for the collection, and they paid for the releases. They even paid his salary, which made him an agent of the university, and not free to do as he pleases with their property. But he is perfectly free to collect his own samples after leaving -- even from the same people, provided he obtains new releases from each of them giving him that right. However they must come to him individually, because the list of those people is still the property of the university. That is fair and reasonable, and workable under present law.

When I go in for a medical procedure, I carefully read the long consent form they give me to sign. If I don't like what's on it, I change it, and demand a copy. They always give me a copy. Most people don't bother to read what they are signing. Most clerks don't even bother to notice that I made changes. One of those clinics later came after me for something I didn't agree to. They wanted more money for a procedure I didn't ask for nor authorize. They threatened to send it up for collection. I encouraged them to consider the consequences. The collection agency took one look at the altered release and said "No way." And that was the end of it. The existing law is not bad.

"3. Pass laws to ensure ... gene testing is public"

Maybe this is a good idea, maybe not. Let's give him this sop.

"4. Avoid bans on research"

Some things are evil, and should be forbidden. Crichton himself recognizes that. He just has a different idea about what is evil than you or I do. Everybody -- including Crichton -- agrees that vivisection of human beings, cutting them up for research purposes while they are still alive, but killing or severely maiming them in the process, is evil and should be banned. That form of research should be banned, and it is.

The problem is that some of us recognize that "human beings" start nine months before most of them take their first breath, and bans against vivisection of human beings for research (or any other) purposes should apply to those unborn humans just as much as the ones that are 60 years old and writing best-seller novels. That, ladies and gentlemen, is the bottom line that Crichton complains about. He only wants bans against other people killing himself, but not against himself (or medical researchers like him) killing helpless infants. That kind of selfishness is itself evil.

"5. Rescind the Bayh-Dole Act"

As in the other points, Crichton is ignorant and wrong. The Bayh-Dole Act is actually a good law. It forces into the public domain research that would otherwise remain hidden from public view, by allowing non-profit institutions (universities) and small businesses (but not large corporations like "big Pharm") to profit from the sweat equity they put into research partly funded by government grants. How does that happen? To profit under this act, the inventor must get a patent (which is necessarily public disclosure) and license it commercially (so the public at large benefits from it). Patents expire in 20 years, so after that the invention is in the public domain. Anybody can use it without restriction. Without this law, the government can claim some "national security" interest, and the inventions remain secret indefinitely. Nobody benefits.

Let's consider an analogy that Crichton himself would probably understand: He went to Harvard and Harvard Medical School, which receives substantial government funding (including, by their own admission, the National Institutes of Health, a Federal agency) mostly in the form of research grants which subsidize the teaching faculty there. Therefore, by his reasoning, he should not be allowed to profit from the results of that government funding, and all his books based on that medical education should be in the public domain. Somehow I don't think he would agree. He makes millions of dollars on the results of that government funding, and we all benefit from getting to read those books. For a price, of course. Because his books make a lot of money for him, Crichton left medicine to write more of them. No profit means no books. Bayh-Dole gives that same benefit to smart people (like Crichton) who do more for the public good than just write interesting novels. They invent new medicines to benefit sick people. So what if the medicines cost extra during those first 20 years. No profit means no medicines. Crichton left medicine to become a writer 40 years ago because there was no Bayh-Dole, but there was a copyright law. He could have done well in either arena, but he saw where the money was. After 20 years the new medicines become very cheap generic drugs. Crichton's copyrights last for 75 years after he dies. I think he's being rather selfish about this, don't you?

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