The gene patents case - Association for Molecular Pathology et al. v. United States Patent and Trademark Office et al.

In this case, decided on on 29 March 2010, the plaintiffs took action in the United States District Court for a declaration of the invalidity of patents held on the human BRCA1 and BRCA2 genes. Variant alleles of these genes have been connected to heightened susceptibility to breast and ovarian cancer. All of the relevant patents were invalidated.

Background

The patents had been issued by the United States Patent and Trademark Office ("the USPTO") to Myriad Genetics and the University of Utah Research Foundation (collectively "Myriad"), giving Myriad a lucrative monopoly right to conduct or license medical tests relating to the genes. Myriad's patents covered the genes themselves (composition patents) as well as processes making use of them (method, or process, patents).

This case provided the opportunity to test the legal validity of gene patents, which have long been controversial but have been issued freely by the USPTO in recent decades. Leaving aside issues of public policy relating to whether such patents assist or impede innovation, it is often thought that these patents are contrived. While there has long been no doubt that the genome of a genetically-engineered organism is patentable, that is because this organism is something new: in effect, it is an invention. Other patents have related to processes or methods for isolating segments of DNA, supposedly purified genes that (it is alleged) are not found in such a form in nature, and methods or processes that make use of DNA segments.

Issues

The lengthy opinion handed down by Justice Sweet deals with various issues; however, these are mainly procedural or otherwise formal. The central issue in the case has always been the validity of gene patents. To give something of the flavour of the claims in the disputed patents, a representative claim in the composition patents reads as follows:

An isolated DNA coding for a BRCA1 polypeptide, said polypeptide having the amino acid sequence set forth in SEQ ID NO:2.

A representative method claim reads as follows:

A method for detecting a germline alteration in a BRCA1 gene, said alteration selected from a group consisting of the alterations set forth in Tables 12A, 14, 18, or 19 in a human which comprises analyzing a sequence of a BRCA1 gene or BRCA1 RNA from a human sample or analyzing a sequence of BRCA1 cDNA made from mRNA of the said human sample with the proviso that said germline alteration is not a deletion of four nucleotides corresponding to base numbers 4184-4187 of SEQ ID NO:1.

The key statutory provision applied in the case was section 101 of Title 35 of the US Code, which provides as follows:

Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefore, subject to the conditions and requirements of this title.

Accordingly, the court had to determine whether the relevant segments of DNA and the processes used to test for them could be brought under the rubric: "new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof." In the past, it has been authoritatively held that scientific principles, laws of nature, things occurring in nature, and abstract ideas do not fall within the section and cannot be patented.

This reflects the commonsense reality that none of these are the sorts of things that can be invented, though of course the language is more complex as it also refers to somebody who "discovers" a "new and useful process", etc. The US Supreme Court has held that the discovery of natural phenomena is not the kind of discovery that patents were intended to protect and that these phenomena should not be the subject of property claims as they are basic tools for scientific and technological work.

Thus, for a process, etc., to be patentable, it must be novel, useful, and fall within the subject matter of the statute (in particular, it must not be something occurring in nature). In this case, there was no dispute that the subject matter of the patents was "useful".

Outcome

The court held that the composition patents were invalid, essentially because they are products of nature. To overcome this, Myriad would have had to establish that the "isolated" and "purified" DNA segments in question had markedly different characteristics, or were fundamentally distinct, from what was found in nature. Thus, mere extraction and purification of a naturally-occurring chemical element or compound would not be patentable (the process for doing this might be, but not the extracted and purified substance itself). Myriad argued that a purified substance not found in nature in pure form was patentable, but this was rejected.

Thus the question was whether Myriad had patented something with markedly different characteristics from naturally-occurring DNA. On this, it failed: in particular, the isolated DNA patented by Myriad resembled the equivalent naturally-occurring DNA in encoding the same genetic information. Whether this is the correct test will likely be a key issue in any appeal. Note that Myriad argued unsuccessfully that its isolated and purified DNA segments were markedly different from naturally-occurring DNA because of their better amenability for use in, for example, medical tests.

The method patents were rejected essentially on the basis that section 101 did not apply to a mere comparison of a DNA sample from a patient with Myriad's isolated DNA. As written, the patents did not relate to any process of transforming or manufacturing something, but simply covered an abstract mental process of comparing or analyzing. The patents did not cover any transformative acts such as actual steps to extract or sequence DNA, and they could not be read expansively to include these by implication. To do so would mean that any patent could be granted on something as abstract as a mental process to be carried out by some unspecified and perhaps unpatented means. In any event, something more than a mere step of data gathering would need to be included in the patent to make it valid.

One patent related to the use of cells into which an altered BRCA1 gene known to cause cancer had been inserted. Growth rates of the cells could be compared in the presence or absence of a potential cancer drug as a test of its efficacy. This was rejected because it amounted to a patent on the scientific method itself: what Myriad proposed to patent was the broad principle that slower cell growth in the presence of a substance was a possible indicator that the substance could be therapeutic for cancer.

In summary, the patents were invalidated mainly because the composition patents were considered to relate to something too much like a product of nature, without the required marked difference, while the method patents covered highly abstract descriptions of mental operations, such as making comparisons.

Comment

While I agree that all of these patents seem like contrivances to cover essentially unpatentable subject matter, the outcome will doubtless be appealed, and it remains to be seen whether higher courts will agree with me.

The impact one way or another on biotechnological innovation is somewhat imponderable. There are numerous complexities involved, including how Justice Sweet's reasoning would apply by analogy to a drug that is essentially a chemical extracted and purified from naturally-occurring plants. Such a drug might not be markedly different from something found in nature in less pure form, but trialing it might nonetheless be enormously expensive (as is inevitably the case with new drugs). Some kind of intellectual property protection might therefore be in the public interest. While Justice Sweet plays down the likelihood of this kind of situation - he distinguishes the unique information-coding characteristics of DNA - it is difficult to rule out.

At the same time, there could well be inefficiencies, hindrances to innovation, and harsh outcomes for members of the public such as cancer patients if the USPTO and the courts continue to allow a regime of massively fragmented intellectual property rights in short segments of DNA.

It may be that legislatures will eventually have to develop a separate scheme of intellectual property for the biotech industry to handle the unique and competing public interests involved. At the moment, however, any such resolution seems far off.

Harris gets it right!

For those who might think I am carping too much about Sam Harris's TED talk, do remember that my original post about his talk was very positive. My posts since have been to explain points, answer objections, and explore metaethical issues for their own sake (as I always said I'd do).

And here's something else. I'm re-re-reading The End of Faith, and enjoying it. If you've never read it, do yourself a favour and spend a day doing so. It contains much wisdom and much powerful writing ... and I can report that on page 179 Harris puts exactly the right argument against vulgar moral relativism! Go and look it up.

I can also report that on pages 170-71 he claims that "questions of right and wrong are really questions about the happiness and suffering of sentient creatures." Now, I could quibble about this. E.g., it is difficult to find a value-free definition of "happiness" and a good metric for happiness (whatever it is) and suffering. Moreover, there may be other values that are relevant to morality.

But all that said, it's a plausible normative claim. There's no attempt here to bridge the "is/ought" gap and establish objectivity. Rather, it just says something that any sane person will agree with as at least a reasonable first approximation to a ruling normative principle. Happiness of some kind and amelioration of suffering are at least extremely important things to consider in making our first-order moral judgments, and Harris is surely correct that much religious morality has gone off the rails in not paying prime attention to these things.

But notice the difference between this formula, in The End of Faith, and a formula like, "Values are facts about the happiness and suffering of sentient creatures." No, that's not right. The values in question just are "the happiness of sentient creatures" and "amelioration of the suffering of sentient creatures". Those are the things that we value and hope to see instantiated. The morally-relevant facts (e.g. "If I do X then B will suffer") are facts that are about happiness or (non)-suffering. So the formula is back to front.

If anything, it should be something like: "Morally-relevant facts are facts about values to do with the mental states of sentient creatures (namely the values of happiness and non-suffering)." (We could add that whether the value of happiness, say, is instantiated in a particular situation involving a particular sentient creature depends upon a state of affairs in its neurological system. Another way to put this is to say that a state of affairs in Spot's brain is the truth-maker for the proposition: "Spot is happy.")

Undoubtedly, the values in question - i.e. happiness and non-suffering (or amelioration of suffering) - are very important ones that largely or wholly underpin any plausible system of morality. On that much, and much else, Harris and I are agreed.

With any luck, the new book from Harris, which I'm looking forward to reading, will use the same formula as in The End of Faith, which I think we should be quite comfortable about as at least a good approximation. I hope it does not get too bogged down in esoteric metaethical claims about bridging "is" and "ought", etc. If you start out with some plausible, non-arbitrary oughts, there's no need to build any such bridge in some non-standard way. If the book does something a bit like the job (at more length, and with more depth depth and sophistication) that is done in Chapter 6 of The End of Faith, the result will be very useful.

Metaethics makes slow progress

Metaethics is one of those fields where the wheels grind very, very slowly. I do think it's making glacial progess. But just as there has been huge resistance, over the centuries, to the idea that God does not exist, so there has been huge resistance to the idea that there are no objective moral oughts, in the strong sense of "objective" that ordinary folk and many philosphers seem to want. Then again, philosophy only ever makes progress in the face of strong resistance from people who are committed to saving the appearances/and or the traditional picture of the world.

The interesting question at the cutting edge of metaethics is what follows if we accept that morality is not objective. I.e., if we accept that the answers given to moral questions do not genuinely have the absolute bindingness and irresistible practical oomph that is usually assumed in moral debate. Richard Joyce captures the idea with two propositions:

1. Moral discourse presupposes non-institutional desire-transcendent reasons and non-institutional categorical imperatives. BUT

2. All genuine desire-transcendent reasons are institutional and all genuine categorical imperatives are institutional.

That's a technical way to put it, but I think it's pretty much a correct statement of the problem. There are reasons for action based on desires (or fears or wants or other such psychological phenomena), and there are imperatives contained in positive moral systems, systems of law, etc. But when we try to give a further reason to abide by the imperatives in positive moral systems, we'll end up appealing to psychological phenomena, not to something that is both (a) built into the external fabric of the universe and (b) itself imperative-delivering. There is nothing like that (and, I submit, even God could not be like that).

So how should we respond to this horrible suspicion - nay, truth - about morality? E.g. should we stop using moral language entirely (in a similar way to the way that many of us have stopped using theological language relating to "sin")? If so, how should (tricky word) we talk when we want to discuss what people ought to do? We seem to need some concept like that, and it needs to go beyond the idea of practical rationality (acting in the way that will achieve your own desires, etc). No one denies that there are oughts of practical rationality, but these are, in an important sense for this debate, subjective.

The guy to watch in metaethics is the above-mentioned Richard Joyce, who now teaches at the University of Sydney, and is embroiled in these debates. He's young, he's on the ball, and he's a much better philosopher than Sam Harris, at least when it comes to metaethical issues. Unfortunately, his new book is not likely to be a best-seller. (It's not even affordable to individual people; meaning that he and his co-editor couldn't find a publisher that was prepared to order a print run large enough to bring down the unit cost.)

I'm giving a paper on some of this in July, at the next AAP (Australasian Association of Philosophy) conference, but after thinking about it hard for the past several days, I'm now uncertain what I want to say. Though I'm not very impressed by the metaethical end of what Sam Harris is doing lately, and I think it's far behind the cutting edge of metaethics, I sympathise with him to an extent. This stuff is difficult. We've managed to adapt to the idea that there is no God and therefore no "sin". But it may be more difficult to adapt, psychologically, to the idea that there are no objective moral oughts built into the fabric of the universe or the nature of reason.

I'm now not sure what I think should be said about how we ought (that word again!) to use moral language ... given that morality can't deliver all the things that the folk naively assume it can. Some metaethicists argue for an eliminativist approach to moral language - such as we've adopted with "sin" language - but they will still need to use some kind of language to oppose (forcibly) such horrors as torturing babies or conducting extermination campaigns against despised minorities.

Even I balk at concluding that all positive moral claims are just false (like positive claims about "sin"). Strictly speaking, if we buy fully into moral error theory, that radical proposition might be correct, but it would sure be a misleading thing to say outside a philosophy seminar room!

I think, though, that the picture is a bit more complicated than this, and we need to tease it out, and probably to include some focused empirical study of what people think they are doing when they use moral language of various kinds. If any of y'all out there are working on this and interested in collaborating, let me know what you have in mind.

New review of 50 Voices of Disbelief

A new (and highly favourable) review of 50 Voices of Disbelief: Why We Are Atheists has appeared at the psychology-related book review site Metapsychology .

The reviewer, Roger Chao, concludes:

Overall, this book is well suited for a mainstream audience, interested in questioning the power that religion holds over our lives. Being an item of non-fiction for a general audience, it has surprisingly good references at the end of some chapters (by academic writers that is), which will also serve to guide the reader if further information is wanted. Thus, I recommend this book to anyone (regardless of their views concerning religion) interested in understanding why different people hold certain views concerning religion.

Sam Harris on deriving "ought" from "is"

Allow me to point you to the newest attempt by Sam Harris to derive "ought" from "is".

I don't want to spend another week bogged down with this issue, so I'm not going to say much, especially since my original criticism was not so much that he purports to derive "ought" from "is" as that he fails to show that morality is objective in the sense discussed in contemporary metaethics. It might, however, be plausibly suggested that these are two sides of the same thing - indeed, I think they are.

However, the trick was always to derive "ought", in the sense of having reasons, from "is" statements that say nothing about what any being desires, fears, hopes for, wants, aims at, values, etc. Once you introduce something about those psychological phenomena, deriving "ought" from "is" is very easy. Even without those phenomena, you can say that someone "ought to" act in a way relative to an institutional standard, such as the current standards of law, etiquette, fashion, or a system of positive morality. No one denies that all these sorts of oughts and derivations of "ought" are possible.

So yes, there are various well-known ways to derive "ought" from "is". You can also do the job if you redefine "ought" so that it is no longer about having reasons for action, but about actions that conform to a stipulated definition of "good", e.g. we apply the word "good" to actions that produce pleasure or eudaimonia. But that's just cheating. Worse, your opponent can say, without making any mistakes: "I accept that Action X is 'good' by your definition, and that I therefore 'ought' to do it by your definitions of 'good' and 'ought'. But what's that to me?. You still haven't given me a reason, acceptable to me, for me to do it."

The trick is to avoid cheating with stipulative definitions and to avoid relying on human psychology or human institutions. You are supposed to derive that I really, really ought to do X without relying on any of those short-cuts. That is the sort of derivation that so many people want, as it's a derivation that will transcend subjectivity or semantics or culture. If you do the job, you've made normativity "objective".

Some people think that they can do the job by relying on the (alleged) commands of God, but that turns out to have fundamental problems. Kantians/moral rationalists (such as Nagel and Korsgaard) think they can rely on an exercise of pure reason without appealing to any contingent psychological phenomena, but I don't believe they've ever succeeded. In fact, I don't believe that the job can be done.

My day

I'm currently reading the judgment in the recently-decided gene patents case, but it's very lengthy. Much of it is important to the particular case - establishing the standing of the parties, giving us a potted genetics lesson to make clear what it's all about, discussing the circumstances in which summary judgment can be given on the papers without a full trial - but not critical to the key issue of how gene patents can be brought under ordinary patent law concepts (and hence whether some or all of these patents are invalid). The passages of Justice Sweet's opinion that deal with the obvious issues of public importance are relatively brief. Still, I'm working through the whole thing to get it all in context. I'll try to sort out in my mind what the most important paras boil down to, and I'll have more to say over the next few days.

This morning, I see that Sam Harris has made some kind of further reply to his critics - or at least to David Hume, or at least to a simplified version of Hume ("the David Hume of the popular imagination"). I need to read this, too, and will doubtless have something to say about it soon.

Meanwhile, after three months of excellent health since moving to Newcastle, I caught a sort of throat bug while in Melbourne in March. I did get a bit of gunge in my upper lungs, but the bug never went down deep into my lungs or became significantly debilitating (unlike the heavy-duty bronchitis that I suffered through much of the second half of last year). Maybe that's because I was so healthy when it hit me. Be that as it may, it was never more than a nuisance - but I just couldn't shake it off, even after getting some Rulide onto it. Well, for the first time since I got it, I had a symptom-free day yesterday ... and likewise so far today. It looks like I just may have shaken the damn thing at last. (Stay tuned. I was saying similar things a couple of weeks ago when I had a couple of good days, but then it clung on and clung on.)

Most importantly, I'll be picking up Jenny from the airport tonight. She's been in Perth for the past week, visiting her sister, Kara, and going to Swancon 2010. Judging from our phone calls and emails over the last few days, it sounds as if she's been having a great but tiring time.

Stop press: My sister rang not long ago. Sounds as if my brother-in-law who is down in Melbourne today will be on Jenny's connecting flight from Melbourne this evening.

More generally, all is well this autumnal Tuesday.

Full text of gene patents judgment

Here is the published opinion of Justice Sweet, thanks to JJE in the comments yesterday. It's 156 pages, so I'm not sure when I'll have time to read the whole thing. I'll try to get to it in the next few days. Meanwhile, it's a resource for those who are researching the issue of gene patents or just interested in it.

New York court strikes down gene patents

I don't know whether the original judgment is available - but over at Science Progress, Andrew Plemmons Pratt reports that US District Court Judge Robert Sweet handed down his judgment last week in the long-running dispute about gene patents. This case is based on litigation brought by a coalition of groups that have sought to challenge the controversial patents owned by Myriad Genetics on two genes connected to breast and ovarian cancer.

The ruling went further than invalidating the patents on the relevant gene sequences themselves. It also invalidated Myriad's patented methods on the processes for analysing the genes.

There has long been debate as to whether it is legitimate to patent things found in nature, such as DNA sequences. Prima facie, such things should not be patentable, as they are not inventions or anything similar, any more than other things that scientists discover (the moons of Jupiter, perhaps) are inventions. In principle, it should, perhaps, be possible to patent methods for isolating and identifying genes, processes that make use of genes, genes that have been modified to achieve some purpose, but not naturally-occurring DNA sequences. It is well known that this kind of distinction has become virtually meaningless.

In addition, there is an economic argument that patents on short sequences of DNA are contrary to public policy because they actually hinder innovation. A tragedy of the anti-commons is created in which highly fragmented property rights can mean that no one in particular is able to proceed to apply scientific knowledge in useful ways. Or so it is argued.

And of course, there are also various spooky arguments, such as that genes are somehow the province of God or a spiritualised Nature that we must not violate.

I agree with the argument that naturally-occurring sequences of DNA are not themselves the kind of thing that should be patentable, and that patents purporting to relate to something else (such as processes) are often contrivances. Still, I'd like to know more about why Myriad's process patents were struck down. If I find the actual judgment, I'll comment further.

The case will be appealed, and it may even find its way to the US Supreme Court. This is a fundamental issue in intellectual property law, and with far-reaching implications, so there'll be further opportunities to discuss the issues.

Some speech deserves to be marginalised

The Good Friday editorial in yesterday's Melbourne Age newspaper gallops over a whole host of issues involving the relationship of religious belief and non-belief in contemporary society. I can't deal properly, or at all, with every irritating sentence. For example, what can I say about the observation, cited from Barney Zwartz, that the atmosphere of Melbourne's recent Global Atheist Convention (GAC) resembled that of evangelical meetings that Zwartz has covered? Well, it's a cheap shot, for a start, and in any event this can only mean he's been to very tame evangelical meetings.

If Barney Zwartz thinks the good-humoured, but relatively sedate, atmosphere of the GAC resembled the atmosphere of an evangelical meeting, then he hasn't been out much. Barney, you need to get yourself along to some wilder and wackier evangelical meetings, like some of the ones I've been to in my time.

Again, I don't want to say much about the issues of whether or not to retain Christmas and Easter in modern liberal-democratic societies characterised by pluralism and by lawmaking based on secular reason. As a non-believer (to use the term popularised by Barack Obama) I'm relaxed about these festivals. They were originally pagan, and they are largely pagan again. I feel no affront that they continue, even if some of the sanctimonious pontificating (as it were) by religious leaders at these times of year makes me want to grab for the nearest sick-bag.*

But one claim in the editorial does merit more than a quick, off-hand comment. This is an issue relating to free speech and to the marginalisation of religious speech.

According to the editorial, "the rhetoric of some militant atheists, which is dogmatic rather than sceptical in tone, should worry anyone who values tolerance and cultural diversity." Oh, go on: please, name names.

It then adds:

It is not only censorship - now rarely encountered in the West - that can threaten freedom of speech, but also any campaigning movement that denies intellectual legitimacy to its opponents.

Well, I'm not so sure that censorship is rarely encountered in the West. This seems like an odd thing to say at the very time when our federal government is planning large scale censorship of the internet that will be wide open for scope creep in future years. But leave that to one side.

Some ideas do merit marginalisation, and some opponents do lack intellectual legitimacy. That isn't to say that these ideas and opponents should be censored. There are many reasons why it is best to allow people to speak their minds. But the political freedom to speak your mind does not entail a right to be taken seriously or given deference, or even to be accorded intellectual legitimacy. Indeed, there are plenty of ideas that people should be free to advocate, but which are so clearly foolish or even repugnant that they will, quite rightly, be ignored or treated with derision. Often, ideas that are treated with respect in one generation come to fall in this category in later generations.

For example, a contemporary defence of slavery would fall on deaf ears. Or it might, depending on its context and the way it was expressed, provoke nervous laughter, scorn, repugnance, or even fear. It would not receive a respectful hearing, and anyone who put this idea forward would instantly lose all intellectual credibility (at least in Australia!).

Of course, we should not censor someone who wants to defend slavery. They should have that freedom. They can plug away with their arguments and try to persuade us to take them seriously. But the playing field is strongly tilted against them, and quite properly so. The onus is on them to explain why it shouldn't be. Likewise for someone who advocates torture or suicide bombing or female genital mutilation or forced abortions.

Furthermore, to take less troubling matters, it is unlikely that anyone advocating public policy by telling us that her proposals are in accordance with the will of Aphrodite or Zeus or Odin would receive a respectful hearing in 21st-century Australia. She should be allowed to put her case, can try to persuade us that it is not so outrageous, that it deserves a respectful hearing, and so on. However, the playing field is tilted against her speech, and again quite properly. The onus is on her to explain why not. Prima facie, the will of Zeus is a very poor reason for public policy, and anyone claiming otherwise will, quite properly, be marginalised in serious policy debates.

While slavery is an extreme case, there are some other cases that are almost as extreme. One would be any proposal to reinstitute the criminalisation of homosexual conduct. I hope that we have now reached a point in our society where any proposal along these lines would be looked at with no more sympathy than a proposal that we reinstitute slavery. Why inflict serious harm - in the form of criminal penalties and stigma - on somebody merely because of his or her consenting sexual practices? The idea is barbaric and outrageous, and it no longer deserves a respectful hearing. It had its chance, and we can put the very idea behind us.

Over time, some speech does become marginalised, and there is nothing wrong with this as long as political freedom remains and the proponents of this speech are not condemned as criminals or otherwise subjected to punishments by the state. In Victoria, where The Age is published, there is a controversial and poorly-drafted code in place forbidding some speech that supposedly "vilifies" people on the grounds of religion. This should be repealed; if it is replaced with anything, and I'm not sure that it should be, it must be a very narrowly-drafted provision that bans only the most extreme kinds of hate speech that dehumanise classes of people (homosexuals for example) or foment violence. We should reduce actual censorship to a minimum.

But some ideas, though not censored, should be given only a marginal place in our society. In every generation, we continue to debate which those are. I am hopeful that future generations will include not only the examples I've given, such as the ideas of reinstituting slavery or punishing homosexuals, but also such examples as the ludicrous idea that the Earth is only 6000 years old (contrary to all conclusions from rational investigation). Likewise for the idea that there is something even "sinful" about (as opposed to grounds for banning) consenting homosexual conduct between sufficiently mature people, or that "sin" attaches to the use of contraceptives or to masturbation. Like the advocacy of slavery, these foolish ideas no longer deserve a level playing field in our society. Let them be freely derided, ridiculed, and driven to the margins. The sooner, the better.

As for religious leaders, they certainly do not deserve the kind of deference they currently receive, or the megaphones they are provided by the news media for their pronouncements. They do not deserve to be looked upon as moral or community leaders, or to be given a privileged voice in public debate. Some - such as those Protestant fundamentalists who claim the Earth is only 6000 years old or the celibate, white-haired dinosaurs of the Vatican who think that the use of contraception is a sin - deserve to be accorded little more intellectual credibility than would be given, in a modern city such as Melbourne, to a slavery advocate.

Not all ideas deserve to be taken seriously and considered respectfully, and not all people deserve to be accorded intellectual legitimacy. We can argue about who and what falls into which category, but there is no doubt that some speech deserves to be marginalised ... and that certainly applies to a lot of religious speech. There's no need to be backward about saying so.

===

* Leaving aside the current mass, so to speak, of extraordinary statements by the Catholic hierarchy as they defend their thin shreds of credibility over institutionalised sexual abuse of children.

A case note on the Simon Singh appeal

Case: British Chiropractic Association v. Simon Singh

Court: Court of Appeal for England and Wales (2010)

Facts: The British Chiropractic Association (BCA) contended that it had been defamed by Simon Singh, a scientist and science writer, who'd criticised it in an op.ed. piece in The Guardian, including this passage:

"The British Chiropractic Association claims that their members can help treat children with colic, sleeping and feeding problems, frequent ear infections, asthma and prolonged crying, even though there is not a jot of evidence. This organisation is the respectable face of the chiropractic profession and yet it happily promotes bogus treatments."

The trial judge had been asked to determine, as preliminary issues, (1) what defamatory meaning the words bore and (2) whether they constituted assertions of fact or comment. He held that the words would mean to a reasonable reader:

i) that the BCA claimed that chiropractic was effective in helping to treat children with colic, sleeping and feeding problems, frequent ear infections, asthma and prolonged crying, although it knew that there was absolutely no evidence to support its claims, and

ii) that by making those claims the BCA knowingly promoted bogus treatments.

Further, he held that these were assertions of fact, not expressions of opinion. This meant that Singh would need to prove that they were factually true or lose the case. [Proof that the BCA knowingly promoted bogus (or "quack") treatments would have been almost impossible.]

In appealing, Singh argued that the trial judge elided the issues of meaning and comment when he used an unwarranted "verifiable fact" test to eliminate comment as a defence; overlooked the context of the words and paraphrased them damagingly; and marginalised or underrated the value placed by the law on public debate regarding issues of public concern.

Held: Appeal allowed.

The court said:

The issue posed by the judge is in reality two distinct issues: first, was there any evidence to support the material claims? and secondly, if there was not, did the BCA's personnel know this? If, as Dr Singh has contended throughout, the first issue is one of opinion and not of fact, the second issue ceases to matter.

The trial judge erred both in conflating the issues and in treating the first of them as one of verifiable fact. It is one thing for a court to investigate the truth of clear assertions. It is another for it to "evaluate published material as giving no evidential support to a claim and, on the basis of this evaluation, to denounce as irresponsible those who make the claim." The material words were expressions of opinion. In the scientific context of this debate, no evidence (or "not a jot of evidence") meant no worthwhile or reliable evidence. This is an evaluative comment which a court cannot treat as one of verifiable fact. Singh was offering an opinion, backed by his reasons for it.

Once this is established, the word "happily" loses its sting, and it is in any event doubtful that happily meant more than, say, "blithely", as opposed to "knowingly". Accordingly:

The natural meaning of the passage, in other words, was not that the BCA was promoting what it knew to be bogus treatments but that it was promoting what Dr Singh contended were bogus treatments without regard to the want of reliable evidence of their efficacy [which is a matter of opinion]...

Singh was entitled to a fair comment defence (the court observed that it would be better henceforth, in contemporary circumstances, to refer to this as "honest opinion"), and it was necessary to substitute the court's preferred meaning for the trial judge's. Accordingly, Singh can now use this defence in the trial. [The effect of this will make the case of the BCA far more difficult.]

Comment: The judgment purports not to create new law, despite the recommendation that the defence of "fair comment" henceforward be called "honest opinion" within its jurisdiction. It claims to apply existing law to the facts of the case before the court. Nonetheless, it gives judicial backing to the high importance of free speech on matters of public interest, and of scientific controversies being settled by the methods of science rather than by litigation. The dicta on these matters will be persuasive in future cases.

In future defamation cases in England and Wales, opinions on matters relating to the cogency of scientific evidence will be treated ... as opinions. [Edit: There needs to be some limit to this, though, as Scepticlawer worries about over here. Beyond a certain point, well-established science must simply be accepted by the courts as fact.]

Should the case proceed to trial on the basis of the appeal court's ruling, it's difficult to see how the BCA could win. Its better tactic might be to appeal, but the judgment is unanimous, comes from a very strong bench of the Court of Appeal, and is (I submit) clearly correct. Its logic appears unassailable.

If so, a further appeal by the BCA would have little prospect of success. Will the BCA now try to settle, or will it risk a further appeal hearing? Perhaps it will offer to settle all accrued causes of action between the parties on the basis that they each bear their own costs to date. But Singh is now in a good tactical position, and perhaps he can do better than that (should he push for his own costs, or at least part of them? Obviously, his lawyers will be thinking about what settlement might be realistic and acceptable...).

In all, the outcome to this point is a highly favourable one for science and for free speech. We await the next step.