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Comment by SmallBets | Hacker News Reader

First software, next seeds.

There's a distinct category of "plant patents" which are more limited in scope to the typical "utility" patents. The CAFC has ruled that the availability of plant patents does not exclude plants from utility patent protection, which has made plant patents obsolescent. I'm not too familiar with that area of law, but as I understand it some of the bad behavior from Monsanto et al. wouldn't have been possible under the plant patent system.

In an ideal world I'd like a distinct patenting regime for software - shorter patent lifespans, compulsory licensing on reasonable and non-discriminatory terms, a broader experimental use right encompassing most non-commercial users - but if the CAFC is just going to fold it into the maximalism of utility patents, why bother?

I was thinking about gene patents recently and was wondering, if a genetic therapy was patented and an enthusiastic virus managed to carry it into your germ cells and then you had kids, what would happen to the claim of ownership on the patented genetics?

You might enjoy the novel Next, by Michael Crichton (Harvard M.D., author of E.R., Jurassic Park, etc.) Aside from the fact that most of his novels were pretty well written, the scary part is how much ahead of his time his ideas consistently were.

(His later novels, including Next, did drop slightly in quality as time went on, but Next is still a really interesting look at almost precisely the legal issue that you describe.)

The incredibly complete bibliography that you find in his novels of hundreds of citations just tends to prove out that frequently truth really is stranger than fiction. (For example, what if someone genetically engineered advertisements into the backs of sea turtles on barrier reefs?)

So far the rulings have been that you can have the genes from accidental contamination but you cannot go out of your way to take advantage of them. Which I think is stupid, but it's a consistent and workable rule.

Under that ruling, if you found out that you were passing on a gene therapy, you would be disallowed from having children with a partner where the gene is likely to be therapeutic in the children.

No. Out of your way.

How do you prove you haven't gone out of your way if you start seeing that person after finding out that your germ cells were carrying the patented material?

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