Jorge Contreras - Presidential Scholar & Professor of Law | Who Owns Your DNA?

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If these are topics that are interesting to you go check out the Martek podcast hosted by Ben Shapiro wherever you get your podcast today my guess is Jorge Contreras Jorge is an American legal scholar and attorney who is recognized as a leading global authority on intellectual property law technical standardization and the law and policy of human genomics. Contreras currently holds the rank of presidential scholar and professor of law at the University of Utah with an adjunct appointment in the Department of Human Genetics at the University of Utah School of Medicine. He also serves as a senior policy fellow at the American University Washington College of Law and has held many esteemed appointments and fellowships as well as positions in variety of universities across the United States. I brought him on the show because of a very interesting topic that he just wrote about based on a case that he was involved in and something that he has taken a particular interest in which I don't think a lot of people understand and pay attention to rather it was the case of the intellectual property concerning human genomes so can the companies put patents on human DNA and the implications for this could be huge so he breaks down a lot of points that he has researched understood and presents to the public is almost an alert to what's going on behind the doors that the public may not be aware of in terms of human genomes IP patents private companies public companies and what this could mean for the future of us and our health and well-being so let's jump right into it this is Jorge Contreras he is an esteemed American legal scholar and attorney well thanks so much for having me on the show so I'm George Contreras and I'm a law professor but I wasn't always a law professor I started my career as a lawyer and an intellectual property lawyer so I've got a degree in electrical engineering I decided during college when I was getting my degree if I didn't want to be an electrical engineer for a number of reasons but I still like the stuff I like the technology so I went to law school with the goal of becoming a patent lawyer and that's a lawyer who deals with technology different technologies come in the door every day and you get to help inventors to figure out how to protect them against competition and so I did that type of work for a number of years after I graduated from law school I worked at a big firm in Boston and Washington DC I spent a couple of years in London saw all sorts of different industries from electronics to software to semiconductors and biotech and pharmaceuticals and then after a number of years I decided to turn in my you know my my my bar card and become a law professor which I did and that's where I am now but I'm still interested in these topics I still write about and think about intellectual property law and the bigger picture of how it affects society and as you okay so you you know you stopped practicing you're starting to teach walk me through why you thought so this this conversation is going to be about the both the genome defense and we're going to speak about the implication this is like a truth this is a true story so walk me through why you wanted to write about this out of all the different cases that you've taken on why was this the one thing that stood out and obviously dedicated like a huge portion of your life to it yeah it um I've heard about this case because this is an amazing case in so many different ways uh and we'll talk more about the details I'm sure a little bit but it's about a set of patents that were well known in the field you know I had been in and around the biotech world the venture capital world and pharmaceuticals for a long time and most everybody in the field knew about the patenting of human genes and you know it was viewed by the industry as pretty normal as like nothing big happening here and and then in 2009 when the ACLU brought a lawsuit challenging uh some of these patents that was a shock um I and everybody in the industry whether patent lawyers or executives and scientists well really surprised like what's going on here um and this case unfolded over the years and the more I looked into it the more I thought wow there's really something like this isn't just a fluke these guys could win and it uh you know again uh so this started I was a lawyer practicing when the case started I became a law professor sort of during that time and um you know after a few years of watching this happen I realized this there are just so many interesting moving pieces here that normal people are just not even aware um that these pieces of our government work this way that the law is being affected in this way and and somebody should tell the story and so I appointed myself as that person so so walk me through um walk me through what this actually means so when you when you say that our genomes are patented what does that what does that actually mean what are people actually patented what's the what is the thing that they are protecting right so that's that's a really good question and kind of a head scratcher you know for most people so so I think people on your show probably know what patents are in general right they give the owner the exclusive right to exploit whatever the invention is for a period of 20 years in the United States and they're a corresponding patents all around the world um patents are issued on inventions right and so the big question in a lot of these cases is what's an invention and so for you know 150 years we've had case law that says a product of nature something that you just go out into the forest and you find a new kind of a berry or a mushroom you know you're the first one who discovered it maybe the first one who brought it back to quote unquote civilization um that's fine you should be praised and maybe publish a scientific article about it but you can't get a patent because you didn't invent it you just found it um now if you make a medication out of the berry or the mushroom um that treats whatever skin rash is then yes you can patent that right you found a new use for this thing that no one had none of it before it's patentable but where do you draw the line between what's a product of nature that's not patentable and what's a human application of nature that is patentable difficult line to draw you would say that's what yeah this is what this is what this is what this is what they're acting so this is the issue so they're patenting um like the roginaum they're patent is it correctly patenting DNA to a to an extent is that is that fair and then and then all derivatives of that all derivative works of any sort of medical or advancement or discovery um that's what they feel like they can have control over and then there's like obviously like very tangible like uh monetary gains at one point when they do discover something or the I guess there's a new medicine or a new a new therapy or something like that then that that particular entity is the only entity that can license that and and sell it to to the market correct that's that's exactly right and not only that they can whoever owns that patent can then control all research uh relating to the the genes um and so you know the the the judge who heard this case in New York the district or judge called this a lawyer's trick how these patents came about and then when you think about it it is it's very clever right because human genes were patented as what's called compositions of matter right a composition of matter that's you know a new metallic alloy or a new polymer right you you're the first one you invent like polyester or styrene or something well then you know anything that's going to be made out of polyester at least for that 20-year patent period you you control it nobody can make something out of polyester without your permission um because you invented the material considering a a new human gene or a human gene that was just discovered as a new composition of matter and we'll we can talk about how you could make that leap uh intellectually but if you control it as a composition of matter that means you control everything that's done with the gene whether testing people uh to see if they have certain mutations in the gene that might lead to disease developing a diagnostic kit developing a drug based on the gene even if you you just discovered the gene you're not a drug developing company you have no idea how to make a drug that might target the gene you still have the exclusive rights to everything relating to the gene so those compositions of matter patents are hugely hugely valuable and broad i just want to take a second and thank the sponsor of today's episode HubSpot now the new year might have you 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customer experience with a HubSpot CRM at HubSpot.com so how did they make that leap how did they make that because even even you know your first example the if you patent polyester than any company that makes any item with polyester has to go through that even that is in my opinion that seems like that's so reaching that's so broad like to patent a material to that extent now I'm not a lawyer but it still seems like it could be something that how do you patent something that is not I guess if you created that material yourself but if you discovered something that's natural how do you say that that should ever belong to you yeah no totally well I mean the materials you know we people do invent new materials new carbon graphite fibers and you know these ceramic protections like a space shuttle and what not and yeah they get the full protection anything you make coffee pot out of that space shuttle ceramic you're paying NASA something but right your genes are not like a ceramic material or polyester right there the scientists didn't invent your gene it was in your body so how do you consider that composition of matter so you have to go back and think about like how genes exist in our body so we've got 20,000 genes all you know wrapped up in the nuclei of ourselves they're they're spread out along a big DNA 10 20 we have 23 pairs of chromosomes and those each of those chromosomes has thousands of genes on it right the genes are sort of like spaced along the chromosomes in an unpredictable kind of way back in the 80s we didn't know where the particular genes were or even what the gene back we ate we thought there were a hundred thousand genes and we didn't know where they were or what their DNA sequences were right the ATGC you know that C3.2 billion ASTs Gs and Cs make up our genome and discovering that was like pretty hard it started in the late 80s when like the University of Michigan and other research labs like figured out where the exact gene that related to cystic fibrosis was located and what its exact sequence was and to do that they have to extract it from the chromosome so that gene CFTR sitting along a chromosome with a thousand or two thousand other genes they have to break it out of the chromosome isolated and and purify like make millions of copies of it so that our instruments can read it right the DNA is just far you can't look at it with a microscope right you need to multiply it by millions of times so that we can detect it so they did that that isolated and purified gene broken away from the chromosome like that doesn't exist in the human body right it exists along the chromosome but it's bonded it it's too ends to like the rest of the chromosome materials got all these other molecules attached to it when it's isolated outside of the body it was considered to be a new thing a new composition of matter and the analogy draws well okay so you've got a tree with a branch the tree branch it's a product of nature you can't patent a tree branch but you chop off the branch and then you carve it into a new baseball bat right the new type of baseball bat well yeah the baseball bat you everything came from some natural element right there only whatever hundred and some odd elements in the universe everything is made out of them so just because you know the baseball bats made out of wood you couldn't patent the wood when it was in the tree but when you broke it out and made something new yeah you can patent it and so the patent office agreed that okay that this gene when it's taken out of the body and purified now it's like the baseball bat as opposed to the branch and you can patent and that's so that was that so somebody somebody who first made these discovered do you know who the first individual that tried to patent a human gene do you know who that was that would have been a while back then the very first one I mean again it only started in the late 80s um okay and and the CFTR gene from University of Michigan is the first one of any significance and and Francis Collins whose name you might know he is now the director of the National Institutes of Health and has been for the last decade plus um he was a scientist at University of Michigan and his team with a bunch of other collaborators found that first gene and there were a lot more to follow okay so then okay so that so now we it's a very very interesting how this is sort of how this is sort of manifested over over over time and how this is now okay you have a gene there has been a successful patent placed on this gene now there's precedent set so um at what point why has why did it take so long for this to be contested was nobody interested or was it contested before and it never actually got any uh got any traction yeah that that's a fascinating sociological question right why was this so so the the the genes that I cover in this book they're the BRCA one and two genes right these are genes that are closely associated with breast cancer and ovarian cancer and if if a woman has a particular mutation in one of these genes like her risk of getting these cancers in her lifetime is increased like by eight to ten times right so you go from whatever 10 15 percent chance of getting one of these diseases to like 80 90 percent um it's it's huge it's almost a certainty so super important information to know these are the genes that were patented by the University of Utah which happens to be where I work now I did not when I started this project um University of Utah and a company that spun out of the university called myriad genetics um um they made the discovery they they sequenced these genes in 1994 and 1995 they're patents it it takes a few years to go through the patent office patents issued in 97 started the ancient 97 98 and so forth and at that point once the patents issued they started to shut down all the labs around the country that were performing tests for these BRCA gene mutations mostly universities right university clinics at Pennsylvania at Yale at Georgetown NYU um you name it some some fertility clinics were doing testing everybody else in the country gets shut down so by 2000 they're the only game in town and there's a lot of you know there's criticism in the academic community among you know cancer advocacy groups but it's not but you probably never heard it right there's not widespread it's not widespread no and and that's is that what it takes to move like it's not a small little university lab it has to be like a massive social problem or injustice that people want to actually get behind yeah yeah absolutely and so there there was a challenge to patents on on genes related to this very uh serious but rare disease called can advanced disease a few years earlier and this was a patent held by Miami Children's Hospital and they were they were also pretty harsh in how they licensed like they didn't want any other labs to be doing testing for this gene that you know this is prenatal testing right if a mother gets screened their parents get screened to see if they're going to pass along this pretty serious disease to their kids um Miami Children's Hospital shut down other labs are doing this testing for free that was not an option once they got the patent right you're going to have to pay for it and and so there was a very strong patient group in this area and in fact the patient group they were the ones who collected all the DNA from their children with this disease to give to the scientist who then went off and patented the gene when he discovered it um and he was very apologetic but said well you know my university they insist on this and that was that and that case it was it was brought by volunteers by by a law professor who was really forward thinking out out in Chicago but you know they they lost the litigation litigation is expensive in this country right and in just a law school clinic um and some volunteers are not going to do well against a giant hospital system um that has a patent that you know worth millions and millions of dollars so they lost um and again nobody heard about you you probably didn't hear about that case right I mean we teach it in bioethics classes and but but it's not it didn't make national headlines um and so it wasn't until 2005 then that the ACLU um got involved and it was like purely by chance like ACLU has been around for 100 years uh never brought a patent case and and never even had a scientist on their staff until they started to get a lot of money in donations after the 9-11 attacks um and you know the ACLU was really like a prominent in dealing with civil rights civil liberty issues after 9-11 um they got a lot of donations and they doubled the size of their staff at their New York headquarters and one of the people they hired was a science advisor because there are all of these issues starting to come up you know DNA fingerprinting um you know warehousing of people's DNA criminal investigations um you know tracing people privacy around your your health information they needed a science advisor and so Tanya Simichelli this young woman is hired out of a graduate program in Berkeley and um comes to work for them and she knows about these cases and the gene patenting stuff and none of the other ACLU lawyers know but one of the things this book goes through is how she gradually convinces them that yet this is actually happening like they don't even believe her at first um you know it just seems so unlikely like they had your reactor like that how could that be possible uh it doesn't seem right it doesn't doesn't seem i i know i know there's probably a lot of uh it's probably a lot of um uh more more technical legal legal arguments but it just doesn't seem like an ethically sound uh process it it it struck a lot of people as it's just being wrong and this is what Chris Hanson the very senior litigator of the ACLU thought to when he heard the story and finally believed uh that Simichelli like knew what she was talking about um what she did and and they then they had to spend like four years like making this case moving it through the ACLU they had to convince the you know the leadership of the ACLU that this case was was worth bringing that that this wasn't a case that was going to destroy the biotechnology industry right they they were concerned i mean they cared about health and you know didn't want to do something that that was going to be extremely damaging um in the end but but they did they did come around to the conclusion that this was just a practice that had gotten out of hand it was it was created by by experts who who were looking at this in a very narrow way without any perspective on on what the broader implications were of this you know construction of of a gene that was isolated as being a new composition of matter like polyester when when the ACLU took on this case um um walk me through the walk me through even the the the trial um and the argument was it it was it a complex care was this like a slam dunk home run um it seemed like when it was brought before anybody it was an easy it was an easy response or an obvious response if this isn't something that we should continue doing uh what I guess it went to the Supreme Court so what it wasn't that you know black and white cut and dry it was something that actually was appealed multiple times this this was a total long shot yeah yeah this um which is why I and like everybody else in the community like couldn't believe that this case was being brought so they they filed the case in 2009 right it it took them four years to figure out if they could even bring this case and and again remember the patents had issued in the late 90s so we've got like more than a decade of of history with these patents being around nobody's challenge and there's been plenty of litigation around these patents right this company saying oh my patent is the patent that controls this and the other and saying no no it's my patent that really controls it plenty of companies were fighting about these patents but no one had ever argued that we just shouldn't have these patents at all because nobody or no company benefits from that right just like no patent lawyer ever took the position except one no patent ever took the position that we shouldn't have these patents because no every company wanted their patents to be the ones that came out on top um but like losing all of the patents that that would hurt everybody so and and the entire patent bar basically was on the side of some company who had gotten these patents right because that's what you do as a patent lawyer is you you get patents you you don't argue why there shouldn't be patents and and even the patent office it has like nine thousand examiners who decide whether or not to issue these patents there they view their job as issuing patents and they do screen out like the really ridiculous stuff and they get plenty of spurious applications but but this was legitimate right this is these are real inventions real discoveries universities that are prestigious are submitting the applications so it was all happening complete surprise and a complete long shot of a case yeah and and I just want to touch on one more point while this while a acl you took on this case was argued well prepped for four years uh to even make a case then argued it what was the the controversy with the Obama administration about this same topic was that intended when the acl you was arguing this case this is one of the most fascinating pieces of this whole story so we think about litigation you know you've got two parties we've got the ACLU and all the plaintiffs that it assembled on its side and you've got the company who has the patents on the other side but there's another party too it's the government um so the patent office issued these patents and they were pretty proud of these patents right um and so when a party brings a lawsuit that involves the government through some government agency the government can intervene right they can say you know we want to appear in court we want to make arguments generally in support of this um of this set of patents and the patent office wanted to do that which which it often does right this is pretty normal um but to do that the patent office doesn't act on its own right in the executive branch of government all the agencies have to run their litigation matters through the department of justice and sitting at the top of that chain of course is the attorney general but the solicitor general who is the number three lawyer in the United States the solicitor general is the lawyer for the United States and government right when the United States has a case with the Supreme Court the solicitor general argues it and all of the thousands of cases involving government agencies around the country like the solicitor general obviously doesn't argue them all but somebody either from the solicitor general's office or they dull that out to somebody else in the department of justice right the solicitor general's office controls all of that so the patent office in this approaches the solicitor general says look this crazy ACLU people are challenging these patents we the patent office have been issuing the patents on jeans for 20 years well established precedent the entire industry agrees the biotech industry is built on this we've got to step in and defend these patents and the solicitor general and again I'm sorry about that I'm I'm oversimplifying a new long process here the solicitor general says well you know let's think about that and they try to get a consensus among other agencies whether this is the right position and believe it or not the answer turns out to be well maybe not so much because other agencies are opposed to the gene patents and the agency that is most opposed to them and most vocally opposed is the National Institutes of Health being run by Francis Collins right who himself has his name on gene patents the difference is when the University of Michigan discovered the cystic fibrosis gene and and patent did it they let anybody who wanted to operate under that patent right for fairly nominal fee there are hundreds of labs who can test for CFTR and and no one ever considered that patent to be a problem the BRCA gene so as I said that one company myriad they shut down the entire rest of the industry and they charged a very high price for their tests that many people couldn't afford Medicaid didn't cover it this led to a lot of the social problems in this case so NIH and a bunch of other agencies the Office of Science and Technology at the White House you know the National Economic Council led by Larry Summers a lot of really a prominent people in the administration got behind the NIH's position and opposed these patents and ultimately the solicitor general took their view over the patent office right I mean and this is crazy at least from the view of the patent office because the Department of Justice is supposed to be their lawyer supposed to be representing them as a government agency and instead it appears in court at the Supreme Court the solicitor general of the United States himself argues that these patents should be invalidated which is completely shocking but but happened it was really important there so that obviously that obviously had a massive impact on I'm assuming something not massive but some sort of impact on the outcome of the case because this is this is a normal this is not normal that this would have happened it is totally not I mean usually even in patent cases the solicitor general supports the patent office yeah so this was totally unusual and and the solicitor general won the case right I mean there are three sets of arguments before the Supreme Court the ACLU myriad and the solicitor general and they picked the solicitor general's you know argument as the winner basically so what was the what so obviously we know we know the outcome so the outcome was and what was it what was the the more specific outcome so was it just that no companies can ever patent genes any ever again or what was the actual outcome or was it was I just want to understand that because I want to understand what some of the impacts that outcome has had in the since since I guess what when was that case decided 2013 so since 2013 what was some of the impacts that has had that has had on the industry and then on on the medical the medical industry in general so what was that outcome yeah yeah so so the solicitor general because the patent office was very upset that this was going down this way they they did try to come up with a compromise solution right so the ACLU argued that all of these patents should be invalid um myriad argued they should all be upheld the solicitor general's argument was well some of each so the patents that covered the sequence of DNA the ATGC whatever um as it appears in our bodies right that exact sequence um those are not valid because that's a product of nature you you can't patent that but the way DNA works we're going to have to have a slight science teacher here the way DNA works so you know the ATGC there are about 80,000 of those those letters in the BRCA1 gene of those 80,000 only about 6,000 do what's called coding the protein right so the BRCA genes they they create these proteins that are tumor suppressors right when there's a flaw in the gene uh then the protein doesn't get coded properly and and that's why tumors grow uh I mean they're obviously like a lots of other reasons the tumors grow but but you're much more likely to get cancer if you do not have these tumor suppressors like working for you every day in your body um and so only 6,000 of those bases code those tumor suppressing proteins so if in the lab you sort of took only those 6,000 uh coding bases right and strung them together into a smaller thing not the 80,000 bases long gene but a 6,000 bases long what we call you know exons um you know or what the court called a C DNA a complementary DNA that's made up just of that small coding region of the DNA well then that might be patentable because that doesn't exist in the body right in the body those 6,000 coding bases they're spread out along the 80,000 long length of the gene um and you know we've got molecules called RNA that figure out which are the coding ones and they reproduce you know the the coding elements to create the protein but those 6,000 aren't just like stacked up neatly uh together in the body um like they would be in the lab so if you in the lab create one of these C DNA constructs artificially um and because it doesn't exist in the body that would be patentable um and and some of myriads patent claims covered that now myriad didn't create C DNA constructs those are not used in the diagnostics business um because for a number of reasons myriad was not helped at all really um by this decision uh or by the compromise but it might have helped um you know companies and other areas that like manufacture proteins and things artificially antibodies and a lot of the biotech community had been concerned about that so they were happy about the compromise so if they if there is a compromise now if somebody else wants to study these is it is there any is there any part of that compromise that allows a new scientist or a new institution to come in and build out works on on something that it has already been patented there is just you just have to pay a fee to be able to access this like was there any sort of because you know the original gene patenting there's a nominal fee to get access to this to create derivative works and to create additional uh studies on it so that's that's sort of like in in good faith for you know the betterment of humankind is the best way to put it but is there any provision that allows people to at some sort of subsidy go in on a patented gene and to study it or is that not allowed well well so the ACLU basically won this case so after 2013 yeah those patents on the gene on the full genes those are no longer valid um they're they're effectively gone uh i mean they may still be lingering out there on the books but they can't be enforced right this okay okay did knock them all down so anybody can go conduct research on a human gene and there's no patent uh that can stop them and then okay so then walk me through um because i know that in the book you referenced some of the uh the impacts that this has had on more recent um diseases pandemics you mentioned SARS H1N1 i'm assuming there has been some uh some positive impact in terms of like COVID and the creation of a COVID vaccine um so what what were the things that uh we are able to do now that allowed us to uh deal with SARS H1N1 and and what we're trying to figure out with COVID now are these are these directly related to the outcome of this case said differently if we didn't have this case would COVID-19 be a much different situation yeah no this is this is a great question uh because this case i think did have an impact here and this has has an impact that we're feeling right now so pre 2013 um SARS H1N1 you know those viral RNA sequences right they like viruses have have a genomic sequence too and the way of virus infects us is it's it gets into our body and it inserts its DNA into us in in certain ways it makes a sick um there were patents that were filed like immediately when you know those outbreaks happened as soon as the viral agent is discovered um its sequence since and patents were obtained very early on in those processes that then made other researchers who were trying to look at the virus and how to combat it how to go get permission in order to uh in order to to study it and certainly to make any kind of vaccine or therapeutic with COVID-19 right the SARS COVID-19 virus that viral sequence was put up in public databases as soon as it was discovered within a week and i don't know if you you probably spoken with people or read a number of the new books that are out about how the the vaccines were developed you know the people at the different companies whether it was um uh moderna or biotech um you know they were able to get immediate access to those viral RNA sequences from these public databases and again the virus mutates a lot of there hundreds of thousands of mutations of the the SARS-CoV-2 uh sequence and those are all public no one has gotten patents on those and and so labs don't have to worry about paying something they don't have to worry about signing a agreement you know in order to what to do research they're able to just go in immediately and start to do that and and i do think this contributed to the speed i mean there are lots of factors and it's an incredibly impressive job uh that that these researchers did in getting these vaccines out but i think this was a contributor and i do think it sped up the process um and then just just update update us on where the biotech industry stands because uh the last part of this book focuses on the fact that they're campaigning to reverse this decision now i'm not a lawyer i don't know how easy it is to reverse a supreme court decision i'm sure not that easy but this is something that they're actively campaigning for uh and where do they stand right now yeah i you're totally right well i mean since 2013 like the biotech industry was very unhappy with this decision from the day it came out and so there's been a pretty steady effort to overturn it now a supreme court decision is pretty binding um and the courts the courts all the courts in the country have to obey it but the way our you know tripartite system of government works is that Congress can pass laws to reverse the effects of supreme court decisions as long as they're not doing something unconstitutional right um and so this this doesn't really implicate constitutional rights in that way and so in the patent area that the Congress has authority to amend the patent act and they're like in 2019 a bill was introduced uh that would explicitly that explicitly said the supreme court's jurisprudence on product of nature are abrogated meaning by they're gone and we're back to you can patent anything whether it's a product of nature or not as long as you're the first one to discover it and and that would put us right back to where we were right before this case was brought and so that uh 2019 that that legislation didn't advance and the pandemic started and things were sidelined uh for for a couple of years but just this summer um at the urging of the same senators who proposed that legislation back in 2019 um the patent office issued a public call for comments asking the industry please tell us how you've been affected by these cases and and of course you know the stories that you're hearing are well you know we can't get patents and this is really damaging um our business and they got 140 responses to that call for comments they're still sorting through um what everybody said uh they're publicly available on the PTO's website if anybody is curious i've got somebody uh one of my research assistants is sorting through them right now uh trying to figure out uh what everybody said um but clearly you know this exercise is going on as background for legislation that would potentially uh limit the scope of the Supreme Court opinions again in in the next term very interesting and i and i just want to i want to get your opinion on this because this this whole this whole story and what's and how this is evolved to me i'm from a tech background it seems like very similar to the open source versus like private ip for software companies and the arguments always made like well if you open source something then you're going to have more contributors but there's always less money less energy and less effort put behind something if it's free right so do you think that do you think that just opening and removing patents will be a benefit to society to humanity or do you believe that there has to be financial incentive and it has to be private not privatized but patented so that these huge large organizations that do have significant revenue can invest in the best in the brightest researchers and they can focus on these genes and and all day will only focus on them because they're patented yeah yeah so so i i'm not against patents right and i do think we need patents in the system um and especially in the biopharma area where r and d is extremely expensive um i i think i think they're necessary may not be the greatest uh you know mechanism but they're pretty good mechanism and they they generally work okay um but that doesn't mean that you should be able to patent everything under the sun right so i mean the way i view it is that basic research tools and basic information about how the world works and how the human body works that should be available to everyone um to access and research without having to pay a toll and without having someone be able to cordon it off exclusively um but past that stage there there's plenty of room to get patents right so with COVID-19 i have no objection to the companies that obtain patents on all of the various delivery mechanisms and they're you know the mRNA uh vaccine technology that's that's fine you know they should go ahead and get those patents and they're all these different competing uh technologies that work fine um you know and there are some issues are in access in the developing world and internationally that's a different podcast i'm happy to come back for that one but in general i think the issuing those patents is fine it's just at the basic research tool level everybody should have access to it and that will that will lead to the most innovation right ring fencing a human gene and all of its uses like you would with polyester or new like super strong steel product that that limits the number of companies who can use it what happened with the BRCA gene so Mary as a diagnostics company they weren't making drugs um yet they their patent covered the use you know making drugs targeted to BRCA one and two also they knew they weren't going to make a drug um they licensed those rights to Eli Lilly one company who paid them several million dollars for this and that actually they they they licensed this this was a futures deal right they they licensed those rights to Lilly before they even discovered the gene um and it was that Lilly money that actually helped them win the race right because they had more sequencers and equipment than other academic labs who didn't have that kind of corporate backing um so the money did help but Lilly had then the exclusive rights before the gene was ever even discovered to exploit it for any kind of therapeutic they wanted to they never did um they just didn't find it useful and they had other priorities um so nobody else could look at it either right no other drug like maybe Pfizer maybe Novartis maybe somebody else would have come up with a tumor targeting agent um that could have used BRCA one or two we'll never know I mean well now it's off patent right uh but and and it turns out that the BRCA genes just didn't turn out to be good targets for drugs they're very like loose genes that move around all the time and are very difficult to work with but like we didn't know that at the time um so locking up the basic research tools I think is is the problem um I think beyond the basic research tools there's plenty of space for patenting and for every company you know to get its rights but we'll have the most innovation and the most discoveries that benefit our health if the field is open and sort of that basic research level um I want to I want to pivot and just ask a couple rapid fire questions to pull out from your experience I like to do with every show but before I do that um of course I think like I think we know like your stance on where you would light the industry to go but your background is in law you've been in in this field for a while where do you think even though there's like the best possible scenario where do you think this will end up in the next five years because now it's being put in front of congress again do you think we're going to revert to where we were before based on your past experience of maybe similar cases or similar uh similar campaigning from large industries that may have you look at like tobacco or or energy or other other other you know like huge industries that lots of money to uh to solicit government or do you feel like that this decision will carry uh going forward? Yeah so there's a lot of criticism of the patent system right now and these bills would would cover a lot of different issues I think some patent reform legislation will probably come into effect in the next five years um but I think I mean my my hope and my prediction is that this case and this particular issue won't get changed and that is because um when the ACLU picked up this case that got public interest started right and so organizations like breast cancer action who hadn't really been looking at genetics issues before this or or patent issues now is on the alert as is the ACLU you know they've continued to monitor these issues and so they submitted comments to congress and the patent office in response to that PTO call for comments and they've been very active in sort of marshalling um patient groups and medical groups um you know in in this way and so I I think that that that you need a public advocate uh because you're right I mean before this it this was just the land of experts like industry lobbyists patent lawyers um you know and company representatives they were the only ones who were even paying attention so of course this is what's going to shape the rules it there aren't that many public advocates and public watchdogs out there to cover all of these complex scientific issues but but this one is now being watched and I think by very uh vocal and articulate and smart organizations that you know again I I see what they do and I I think I think they will be effective so there may be some patent reform but I'm hopeful I got my figures crossed that this one uh this this case won't fall very good no very very interesting thank you for uh thank you for giving us a rundown on that the second the second I saw what the book was about I'm like we have we have the chat like this is something that I like I'm probably like most people like I didn't realize this was a thing until you start to sort of dive into it and you're like like you know excuse my French like holy shit this is like a a pretty significant issue yeah and who was sort of in that I agree yeah um so okay so uh I also want to get some information from you so if people want to go get this book if they want to connect with you um where should they go is it social do you have a website what's the best spot yeah so the book they can buy anywhere uh generally it's it's a book book uh it's also you know there's a e-book format there's an audio book uh and these days yeah I listen to I half of the books I read or on audio um so you know audible and amazon your local bookseller I do have a website which I'm not I'm not selling the book right but it has links to all of the book the bookstore sites it's called genome defense dot org right this one word the book is the genome defense and so genome defense dot org and I mentioned the website because it's got a lot of other material on it so again depending on how interested you are if your listeners are lost students or just really curious about what a lawsuit like this looks like I've got all of the documents are like they're probably thousands of documents I've got all of the important documents from the case are up on the website um so if anybody wants to see like what did that patent actually look like I've never seen a patent before um you can go see what a patent looked like on a gene all the patents that were challenged what or and the demand letters like a myriad sent cease and desist letters to all these universities and clinics all of the demand letters I could get my hands on are up there on the website and the the transcripts you know from the oral arguments like if you want to hear a lot of really good uh argument at the Supreme Court sounds like you know read this transcript um so there's a lot of fun and stuff for the real log geeks out there um and it's all there it's all free and it's organized uh on the website amazing no that's awesome thank you I appreciate I'll link that below um in the show notes too okay um I like to do a couple rapid fire uh career questions just life questions because you've had a great career um obviously uh having a life practicing law writing a book um teaching law that's no small feat so I like to pull up some insights people that um are earlier on in their career or later on and just want to learn from somebody who's done it before so the biggest challenge that you've had to overcome in your entire career could be personal or professional um what was that and how did you overcome it so you know it's it's it's it's hard to say I mean I so I I was always like in elementary school middle school high school I was like pretty creative kid I was always really like the most into creative writing assignments and projects and like I directed a play that I wrote uh there's really creative stuff um and but but you know that I I was good at math and good at science and I went into gaming engineer and and one of the reasons I left engineering was I couldn't be creative in the way that I I wanted to be there and then you might think well going to law school is a pretty stupid you know choice um and I I liked law school a lot you know if students are thinking about law school it did actually it's like an intellectually like amazing uh place to be um but then when I came out and I started to be a lawyer and I I did negotiations and transactions like drafting these agreements around intellectual property I liked it and it was detailed and careful but I I found myself I mean I this just isn't very creative you know in this way and I I you know got kind of unhappy about that and really wondered what can I do you know my stuck here um you know doing a job that that will I can do very well and efficiently and effectively but I'm not gonna exercise like that much creativity and and that is what after a very long road led me to become a law professor where you can greatest job in the world you can do literally anything you want to no one is checking you no one's you don't kind of a boss really um and I decided I'm gonna write this book like to try to explain you know in kind of a journalistic literary creative way how something really complicated works in the real world and and uh it took me a long time to get here but but that like challenge the challenges figuring out how to do what I really enjoyed um in a series of different jobs that weren't exactly the right fit but but helped me a lot along the way I love that um if you have to choose one person who was very impactful in your life and there probably has been many but you have to pick one who was that person and what did they teach you so so I'll go I mean obviously you know my wife will I cannot avoid mentioning mentioning her because she's helped me very much along the way and does a molecular biology background and helped me a lot in writing this book and we both know many of the people in the book um but but for you know sort of a more professional then you're gonna go back to high school um because you know I was this kid I went to high school a big public high school in outside of Dallas, Texas um and and you know I had I was interested in in writing but I was also this kind of math science kid um but my English teacher in left grade uh Janet Arterberry I she's no longer with us I believe but this is a long time ago I was in high school she she actually you know thought that I was a good writer and believed in in me as as a kid who like you know could could express himself in in writing and and put me on the high school's expository competition composition team which is called ready writing um at that time and and we competed and like unbelievably you know we competed and I I went up through the ranks I ultimately won the Texas State Championship um in this you know competition of ready writing and and um I I was I was just so grateful to her right because I previous on the previous year like the teacher didn't nominate me for this team and I was kind of bummed about that and this teacher she took a chance you know and uh you know saw something in in what I could do and and I I just I really grabbed it and I ran with it um and and that was again that was a long long time ago was my senior year in high school but um I is really one of my proudest moments you know what I want that competition amazing that's good um a favorite favorite source to learn or grow could be a book podcast that you'd recommend people go check out oh um boy I I I take inputs from so many sources you know I get so many fair yeah now there's not to be like a business anything anything like if that you that you've read recently or that didn't ask that you just thought was a good some good uh something that people like if didn't have to be business at all or law be anything yeah yeah well so um you know this may be totally inappropriate but but there's there's a uh I'm gonna start to listen to your podcast um but the plan on money podcast um yeah is is one that um it's got these short by 15 minute things they they actually had a segment don gene patenting um a year a year and a half ago before this book came out and I was I was bummed that they didn't know about my book um and I'm hoping they're going to do a follow-up but um you know but but they periodically they do segments that cover law and and they cover they have a few really good segments that cover patents crazy things one of my favorites is a segment that there's called can you patent a stake um like STAK and the answer believe or not is yes and so for people who don't know who aren't experts um it's got just a lot of really good economic uh tidbits and information that that shows us how the real world works and um you know it it's uh it's a good one very interesting um if you could tell your 20 year old self one thing what would it be? I would I would say uh to my 20 year old self um you know uh go get into academia sooner don't wait I don't spend that many years as as I go with what you really love um as soon as you can uh you know we we all have debts and I had to pay off debts also from college and law school and you've got to work and make some money uh before the book once you're done with that don't don't let the golden handcuffs bind you um longer than they absolutely have to you know follow your passion um as soon as you're financially able to do it and maybe very good advice very good advice um last question what is success mean to you? you know to me it uh I think success is having people recognize what you've done in and making a contribution you know making a real contribution of some kind to society I mean I'm not a scientist I'm not a doctor um but you know my contribution I hope is explaining complicated things to people in in a way that they can understand so that they they learn something more about our crazy you know system of government and laws