On 30 May 97, Harold Federow <hfederow[_at_]u.washington.edu> wrote:
>
> On Tue, 27 May 1997, Dan Agin <specpress[_at_]earthlink.net> wrote:
> >
> > On 22 May 97, Robert Cumbow <cumbr[_at_]perkinscoie.com> wrote:
> > >
> > > Dan Agin <specpress[_at_]earthlink.net> wrote:
> > > >
> > > > News is not protected, only the expression of news is
> > > > protected.
> > >
> > > This statement is true only in copyright analysis. The common
> > > law tort of misappropriation is alive, if not entirely well, in
> > > many jurisdictions.
> > >
> > > > So what are we talking about here? Is there such an entity as
> > > > a "misappropriation" of a fact?
> > >
> > > There may very well be. That, at least, as I understand it, is
> > > the point of this thread.
> >
> > And may very well NOT be. If tort law is in conflict with the
> > Constitution, one must hope that tort law will get pummeled. The
> > idea of a proprietary fact is so foreign to reason, it sounds
> > disgusting.
>
> Really??? What about trade secret law. That is all about
> proprietary facts.
Again, this thread is about news, and news is public fact, and public fact is not secret, and not protected by trade secret laws. Concerning trade secret law, if the secret is a fact, then the theory behind the protection granted by trade secret law ought to depend on something other than ownership of the fact. Invasion of privacy, trespassing, whatever. Not ownership. I think this idea of proprietary public fact is not only irrational, but it's dangerous. The most egregious examples are in the patent office, and although it involves patent law and not copyright law, I will offer the following account of a recent instance because it also involves making a public fact (not a device) proprietary:
Here is a digest (from SCIENCE-WEEK, with permission) of the Down syndrome-HCG patent ruckus:
DOWN SYNDROME TEST USE BLOCKED BY SCIENTIST WHO WANTS ROYALTIES In 1986, Mark Bogart and two colleagues at the University of California San Diego (US) discovered a statistical correlation between elevated levels of the hormone human chorionic gonadotropin (HCG) in the blood of pregnant women and Down syndrome in the fetus, the latter a neurological condition which results in varying degrees of mental retardation. HCG was a well-known hormone, and the test to determine its levels in the blood was a standard pregnancy test and had been widely used for many years. Thus Bogart did not discover the hormone, and he did not invent the test for it. What he discovered was a correlation between the results of the test and the presence (or absence) of Down syndrome in the fetus. He filed for a patent on the use of the standard test as a determinant of fetal Down syndrome, and the patent was awarded in 1988. At that time the test had too many false positives in connection with Down syndrome to be clinically useful. Several years later, however, clinical laboratories found that if they used the test in conjunction with two other tests, the results were indeed clinically useful. The trio of tests became a standard procedure. Now Mark Bogart, presently head of Biomedical Patent Management Corporation, has demanded that all laboratories stop using the HCG test for Down syndrome in pregnant women unless they pay him royalties of $9 per test. Since this royalty exceeds the fee that many laboratories receive for the Down syndrome test, and since U.S. patent law favors the patent holder, it appears likely this Down syndrome test will be withdrawn from use in the U.S. At the present time, there is no substitute blood test that can be used in the clinics to detect fetal Down syndrome in pregnant women.
In effect, what the PO did was say that Mark Bogart owns the correlation between HCG levels and the presence or absence of Down syndrome. He invented nothing, there is no device, there is no contribution except an observation of an existing physical actuality. After the test is withdrawn, we will have no blood test, only amniocentesis, and that is too expensive for most women. I suggest, gentlemen, that the law needs to be careful how it handles public facts in the arena of intellectual property.
Dan Agin
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