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CHAPTER 026

We’re talking submarines,” the patent attorney said to Josh Winkler. “Significant submarines.”

“Go on,” Josh said, smiling. They were in a McDonald’s outside town. Everyone else in the place was under seventeen. No chance that word of their meeting would get back to the company.

The attorney said, “You had me search for patents or patent applications related to your so-called maturity gene. I found five, going back to 1990.”

“Uh-huh.”

“Two are submarines. That’s what we call vague patents that are applied for with the intention of letting them lie dormant until somebody else makes a discovery that activates them. The classic being COX- 2-”

“Got it,” Josh said. “Old news.”

TheCOX-2 inhibitor patent fight was famous. In 2000 the University of Rochester was granted a patent for a gene calledCOX-2, which produced an enzyme that caused pain. The university promptly sued the pharmaceutical giant Searle, which marketed a successful arthritis drug, Celebrex, that blocked theCOX-2 enzyme. Rochester said Celebrex had infringed on its gene patent, even though their patent only claimed general uses of the gene to fight pain. The university had not claimed a patent on any specific drug.

And that was what the judge pointed out, four years later, when Rochester lost. The court ruled that Rochester’s patent was “little more than a research plan,” and ruled that its claim against Searle was invalid.

But such rulings did not alter the long-standing behavior of the patent office. They continued to grant gene patents that included lists of vague claims. A patent might claim all uses of a gene to control heart disease or pain, or to fight infection. Even though the courts ruled that these claims were meaningless, the patent office granted them anyway. Indeed, the grants accelerated. Your tax dollars at work.

“Get to the point,” Josh said.

The attorney consulted a notepad. “Your best candidate is a patent application from 1998 for aminocarboxymuconate methaldehyde dehydrogenase, or ACMMD. The patent claims effects on neurotransmitter potentials in the cingulate gyrus.”

“That’s the mode of action,” Josh said, “for our maturity gene.”

“Exactly. So if you owned ACMMD, you would effectively control the maturity gene because you would control its expression. Nice, huh?”

Josh said, “Who owns the ACMMD patent?”

The attorney flipped pages. “Patent filed by a company called Gen-CoCom, based in Newton, Mass. Filed for Chapter 11 in 1995. As part of the settlement, all patent apps went to the principal investor, Carl Weigand, who died in 2000. Patents passed to his widow. She is ill with terminal cancer and intends to give all the patents to Boston Memorial Hospital.”

“Can you do anything about that?”

“Just say the word,” he said.

“Do it,” Josh said, rubbing his hands.