On 7/8/98, Shelly Warwick <swarwick[_at_]sprynet.com> wrote:
>
> I guess my point wasn't clear. I don't believe that factors which
> appear naturally in humans should be the subject of patent.
I guess I wasn't clear, either. Products of nature are not patentable. Only the products of human inventorship are patentable. And the Mo cell line, derived from John Moore's spleen cells, was the product of human inventorship -- Dr. Golde's inventorship. It didn't exist until created by Dr. Golde.
> However, if the patent office feels such patents are appropriate,
Not the PTO, the Supreme Court. See Diamond v. Chakrabarty.
> I feel the person whose body had the characteristic is as much
> entitled to the reward as the discoverer.
I understand that you do, but repeat that you have not indicated why. John Moore was not an inventor under the patent statute. He engaged in no act of inventorship. He contributed materials to those who did engage in inventive acts, but this does not make him an inventor, any more than I would be an inventor if I donated glassware, money, bunsen burners, or any other materials to someone engaged in invention.
> For instance if a mining expert walks across my property and
> recognizes signs of a rich gold vein his recognition of the naturally
> ocurring mineral does not make it his because it is on my property.
> So why should someone who recognizes the value of someone else's
> cells be able to profit.
First, this example is inapposite because Dr. Golde did not (and could not) recieve a patent for "recognizing" something -- on your analogy, he recoginzed, mined, extracted, and purified the material.
Second, the example begs the question, as it assumes the scope of rights in the property. You might equally well ask whether a mining expert who walks accross unclaimed open lands and recognizes signs of a rich gold vein is entitled to something (answer: yes, if he files a claim and works it).
> I'm also confused... if the court upheld lack of informed consent
> how is the Dr. allowed to profit from an illegal act?
I am having a great deal of difficulty parsing this question, but as nearly as I can understand it, the answer is that the physician is liable in tort for failure to obtain informed consent. To the extent that John Moore could show injury for that breach of duty, he can recover compensation. It is extremely difficult, however, to imagine what damages he could prove for the breach -- failure to share in the profits (if any) from the cell line are certainly not among such damages, as they are not proximate to the breach.
And indeed, so far as I am aware, after the decision of the California Supreme Court, Moore dropped the case.
It is also worth remembering that the case was appealed from a demurrer -- failure to state facts sufficient to allege a cause of action. So the "facts" of the case as found in the opinion are the facts as alleged in the complaint -- they may, for all we know, be entirely mistaken or fictitious. No findings of fact were ever made.
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