Supreme Court Seems Skeptical As Myriad Claims Gene Patents Should Exist, Because It Put A Lot Of Work Into Finding Them

from the sweat-of-the-brow dept

As many people know, on Monday, the Supreme Court finally heard the Myriad Genetics case, to look at whether or not genes are patentable subject matter. For the past few decades, the USPTO has generally argued that you can patent genes, which just seems crazy to most folks who point out that it's nuts to patent something that exists in your body. Supporters argue that they're trying to patent the process of isolating the gene, but that's just semantics. As you may recall, the appeals court, CAFC, had decided that genes are patentable because they're separate from your DNA. After that, the Supreme Court disallowed patents on medical diagnostics, and asked CAFC to reconsider the Myriad case with that as a guide. In response, CAFC stuck by its guns, insisting that genes are patentable.

With the big caveat that oral hearings are often meaningless in terms of how the Supreme Court eventually rules, the transcript and the various reports from those who were there suggest that there is at least some good skepticism about patenting genes. First off, we should point out that Myriad's CEO, Peter Meldrum posted a ridiculous op-ed at USA Today over the weekend, in which he argued that Myriad should be allowed to get patents because it worked hard to get them.
To create tests for hereditary breast cancer and ovarian cancer, our company and its investors spent more than $500 million over 17 years before we were able to recoup this investment.
Except, of course, patents aren't about the sweat of your brow and how much work you put into something. Nor -- despite Meldrum's silly claims -- are they about letting companies "own" their findings:
We think it is right for a company to be able to own its findings, just as pharmaceutical and other companies do all the time.
Except, of course, that's wrong. Because Meldrum does not want any other companies, who came up with the same thing independently, to "own" their "findings." Instead, he wants them to pay up or go out of business. For all of those companies, who may have spent even more money, that, apparently, doesn't matter at all, which highlights the complete hypocrisy of Meldrum's position. His argument only applies to his company, and not any other.

Furthermore, Myriad's critics made clear to point out that other labs were working on the same thing and were happily foregoing patent protection. The clear suggestion: it wasn't the patent that created the incentive, and the end result was that all of those other businesses were harmed. So Myriad's argument that it's helping researchers is doubtful.
We know that there were other labs looking for the BRCA genes and they had announced that they would not patent them if they were the first to find it. We also know that prior to the patent actually being issued, there were other labs doing BRCA testing and Myriad shut all that testing down. So we know in this particular case that problem would not have arisen.

But the point of the whole -- the whole point of the product of nature doctrine is that when you lock up a product of nature, it prevents industry from innovating and -- and making new discoveries. That's the reason we have the product of nature doctrine, is because there may be a million things you can do with the BRCA gene, but nobody but Myriad is allowed to look at it and that is impeding science rather than advancing it.
Justice Scalia followed that up by asking why would anyone invent anything if they can't get a patent. Of course, he might want to ask all of those labs that invested in the same process, but can't do anything about it. It seems they lose out, too.

In the end, there was clear skepticism from the Justices, but also a suggestion that they might try to punt the issue (again!) by ruling narrowly on particular issues, rather than by taking on the big question. We'll see how it all comes out in a few months...


Reader Comments (rss)

(Flattened / Threaded)

  •  
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    Josef Anvil (profile), Apr 16th, 2013 @ 4:21am

    WTF?

    "Justice Scalia followed that up by asking why would anyone invent anything if they can't get a patent?"


    Ummmm see a need and fill it? Maybe humans feel the need to improve their quality of life? Just to see if it can be done?

     

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      Ninja (profile), Apr 16th, 2013 @ 4:45am

      Re: WTF?

      I had the same reaction and asked myself the same questions.

      But there's something I find more troubling. The question the Justice posed is heavily biased in favor of patents in my point of view. Rather than ask "do the patent system actually foster more innovation as it's supposed to in its core intention?"

      To me this or maybe even these Justices are not fit to take this case. Their minds are already made up in favor of the patent system.

       

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      identicon
      Anonymous Coward, Apr 16th, 2013 @ 4:45am

      Re: WTF?

      The fact that many have invented things and gave up patent protection is proof enough that patents are not the sole incentive for invention. Plus, there was a point in history where many useful inventions where created just as a fun pastime. They didn't even stop to think that there might be a practical use for them so even "neccesity" cannot be said to be the mother of invention

       

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      Watchit (profile), Apr 16th, 2013 @ 5:35am

      Re: WTF?

      You're right. Scalia seems to think of patents as an end rather than a mean.

       

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      Trails (profile), Apr 16th, 2013 @ 7:52am

      Re: WTF?

      I'm a small-c conservative, let the market decide!!!

      And by "market decide" I mean let's invent contorted notions of idea-ownership and let people sue each other into oblivion and nuke the marketplace by creating tinpot monopolies.

       

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      John Fenderson (profile), Apr 16th, 2013 @ 9:07am

      Re: WTF?

      Scalia uttered what may be the most asinine claim in support of the patent system -- that nobody would invent stuff without patents.

      This is asinine because people and companies demonstrably do, and always have. The patent system isn't intended to encourage people to invent more stuff. That's never been a problem. The patent system is intended to encourage people to share the knowledge they've gained in the course of invention.

       

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      Anonymous Coward, Apr 16th, 2013 @ 3:09pm

      Re: WTF?

      Scalia asked this even though he already knew an answer. He asked it for the benefit of his colleagues. When the attorney didn't give what he felt was an adequate answer, Scalia goes on to say in essence 'The answer I was hoping you'd give was ...".

      I think he was trying to throw him a easy softball.

       

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    David Koepsell, Apr 16th, 2013 @ 4:26am

    isolated, not isolation

    Actually, Mike, it's worse than claiming that the "process of isolation" is somehow what's sought, the claims at issue literally cover the isolated nucleotide sequences. The logic derives from dicta that says that isolating and purifying something from nature makes it something new, and Myriad's attorneys even claimed that because genes are somehow "socially constructed" the act of isolation of some sequence is inventive. Two problems with this: genes are not socially constructed, they are functionally-defined, coding for a protein, and nature devised the method of reading them with "promotor" and "stop" codons that signal when to begin protein synthesis and end. The second problem is that the isolated "molecule" is not some new thing simply due to isolation. As I have pointed out repeatedly, the logic of this says that Priestley would have been able to get a product patent on O2, and Hansen pointed out the same with regard to gold. Both are clearly products of nature, with no intention or design by humans in their forms. If the Court is as fed up with this sort of reasoning as it seems, it will hopefully negate the "isolation" doctrine in general.

     

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      Ninja (profile), Apr 16th, 2013 @ 4:56am

      Re: isolated, not isolation

      I have mixed feelings here. There is more than one means of isolating gold or oxygen. It all boils down to economic efficiency. If memory serves back when I was attending college we discussed a process to produce chlorine and sodium hypochlorite that used a lot of electricity but was a hell lot more efficient. The process made sense in countries with a heavy hydro (or cheap alternative such as geothermal) infrastructure such as the country we were discussing (I'm not sure if it was Norway or something).

      You see I don't think a process or a chemical compound should be patented but sometimes the process itself poses a competitive advantage and has some innovative approach that actually allows commercial exploitation of a determined compound.

      I'm not sure how you could protect that without creating a huge monopoly or harming other industries. Maybe you could give a company that developed an specific process to use it exclusively for, say, 3-5 years. Such patent would only be valid if the company started offering the compound commercially within 2 years of the application (or a reasonable time-frame depending on the complexity of the process and the effort/money needed to put it up).

      I'm just working around the concept, I don't mean to say my solution is good but I think it's worth discussing this angle. What do my fellow td readers think?

       

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        Anonymous Coward, Apr 16th, 2013 @ 5:09am

        Re: Re: isolated, not isolation

        I don't think you're far off, tbh. This could be a patent success story if Myriad were selling an isolation kit at a reasonable rate.

        This all falls down when its more cost effective to lock it up and sue but hey what are you gonna do.

        I'm heavily in favor of a use it (usually sell it) or lose it clause for most forms of IP. Think how much faster HBO would move if they'd lose rights if they didn't get their content to market fast enough.

         

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          Ninja (profile), Apr 16th, 2013 @ 5:39am

          Re: Re: Re: isolated, not isolation

          Think how much faster HBO would move if they'd lose rights if they didn't get their content to market fast enough.

          I do believe such clause would help making works available. However not long ago Sony (was it?) released a lousy album with miscellaneous songs of an artist (I can't recall the artist) just to keep the copyrights in Europe. Fact is they'd do exactly that to work around. Make it available trough some ultra-shitty-violet like service and say "hey, we are making it available via this awesome service everyone wants!"

          I don't see an easy way to narrow it in a way they would be really obliged to make it widely and easily available (or license it cheaply so another company can do it).

           

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    RyanNerd (profile), Apr 16th, 2013 @ 4:31am

    Been working on my own human genes for a long time now

    You know I've been working for a long time on my own genes. Ever since 1966 as a matter of fact. My father if I remember his birth year has been working on his genes since 1933. But perhaps it should be the oldest living person who should have a right to patent human genes since obviously they have been working at it the longest.

     

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    Anonymous Coward, Apr 16th, 2013 @ 4:38am

    I was under the impression that one was not allowed a patent upon nature, which this clearly is. Are they after a patent upon the process of isolating something that naturally occurs?

    Justice Scalia thinks they invented genes? Wasn't that Levis?

     

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      The Real Michael, Apr 16th, 2013 @ 4:53am

      Re:

      If I procreate, have I infringed upon their patent...?

      How long before they patent water, oxygen and sunlight?

       

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      Anonymous Coward, Apr 16th, 2013 @ 8:56am

      Re:

      It is far past that point.

      From the start 80's: "The fact that micro-organisms are alive is without legal significance for purposes of the patent law."

      http://en.wikipedia.org/wiki/Diamond_v._Chakrabarty

      So anything living is not nature.

      Several people have patents on splicing genes, antibodies (part of human immune system) and cDNA (A "copy" of a single DNA string) which in that specific case coded for growth hormone production...

      With that in mind, I think the race is already far over. The patent creep has already completely devoured any meaningful way of limiting patent on "nature".

       

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    identicon
    Anonymous Coward, Apr 16th, 2013 @ 4:38am

    We think it is right for a company to be able to own its findings

    For a company to stake ownership on their own findings they should avoid using any research publications in their field. If they have not forsaken this valuable research resource then they cannot claim the finding as theirs alone.

     

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      Anonymous Coward, Apr 16th, 2013 @ 4:48am

      Re:

      It's part of the modern problem of conflating ownership withh monopoly. Their natural property rights are protected without copyright and patents; so called ip unnaturally extends their controls onto the property of others

       

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    The Old Man in The Sea, Apr 16th, 2013 @ 5:00am

    The End is Nigh

    The End is Nigh,

    The End is Nigh

    The End is Nigh on impossible to say what the SCOTUS will come out and rule until they say it. I think PJ has the rights of it in this case. We'll just have to wait and see.

     

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    Anonymous Coward, Apr 16th, 2013 @ 5:15am

    But then what would people do if Big Genes won the right to not be patented? Horror and anarchy, that's what would happen!

     

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    Anonymous Coward, Apr 16th, 2013 @ 5:34am

    corporate interests > everything else. right?

     

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    Watchit (profile), Apr 16th, 2013 @ 5:40am

    Myriad Patent logic: "I spent X amount of money and Y years developing something, therefore I deserve a patent rather than Bob who did it for free. In fact, Bob shouldn't even be allowed to use that something at all because money."

     

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    DannyB (profile), Apr 16th, 2013 @ 6:02am

    What we need is some IP sanity here

    (I posted the following on Groklaw...)

    If long sequences of letters A, C, T and G can be patented, then shouldn't we be able to patent long sequences of ones and zeros? After all, we should offer patent protection to those Eye Pee creators who create:
    * software
    * JPEG images
    * movies in digital format
    * e-books
    * music recordings

    And similarly, if we can copyright strings of ones and zeros, should we also afford the blessings of everlasting copyright protection for genes? Now obviously, there are complexities. For instance, there should be compulsory licenses for children who have copies of their parent's copyrighted genes. At least until they are eighteen and can be expected to pay for licensing.

    If tirademark law allows someone to own a word, such as "Word" or "Office" (Microsoft) or "Mini" (Apple), then why shouldn't they be able to own numbers as well?

    Since we allow design patents on rounded rectangles, shouldn't we allow design patents on other important design elements such as:
    * color
    * size
    * shape
    * making something thin
    * making something light weight
    * making something uncluttered
    * making something fast
    * making something desirable or useful

    In particular it would seem that color should be patentable since there are an infinite number of RGBA 32-bit colors.

    Why shouldn't we be able to both copyright and patent elements from the periodic table?

    If we can patent genes, why not basic bodily functions such as breathing? Or ages, such as becoming 35 years of age?

    I can see that the Supreme Court really has a lot to consider here. But it is important that we protect Eye Pee to the maximum extent possible to encourage
    innovation.

     

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    identicon
    Anonymous Coward, Apr 16th, 2013 @ 6:10am

    Patent life and extort every single living being for cash. Great business model!

     

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    identicon
    Anonymous Coward, Apr 16th, 2013 @ 6:11am

    It's all coming true ...

    https://en.wikipedia.org/wiki/Next_%28novel%29

    Michael Crichton: Next (2006)

    Backstory: "Frank Burnet contracted an aggressive form of leukemia and underwent intensive treatment and four years of semiannual checkups. He later learned that the checkups were a pretext for researching the genetic basis of Frank's unusually successful response to treatment, and that the physician's university had sold the rights in Frank's cells to BioGen"

    Recommended reading : )

     

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    Hephaestus (profile), Apr 16th, 2013 @ 7:01am

    If these Justices punt this decision down the road, then we know they are making a political decisions and not legal ones. They will be saying the financial loss to businesses, is of a far greater import, than the advancement of science, and the saving of human lives.

     

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      John Fenderson (profile), Apr 16th, 2013 @ 9:11am

      Re:

      then we know they are making a political decisions and not legal ones.


      That horse has been out of the barn for a long time now. The Supreme Court makes most of its decisions based on politics.

       

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    identicon
    Anonymous Coward, Apr 16th, 2013 @ 7:35am

    non-starter argument

    "Justice Scalia followed that up by asking why would anyone invent anything if they can't get a patent."

    They didn't invent the gene, they found it - so this is a complete non-starter.

     

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    Anonymous Coward, Apr 16th, 2013 @ 7:39am

    Small Particles

    What if we had allowed everyone who discovered a new element in the periodic table to patent it - would that have been the same? Would we have had patents on oxygen, carbon, gold, silver?

    Is that really any different in this case, since those are naturally occurring, and the process of discovering them is just to build the proper tools and testing equipment to locate and identify them? Perhaps the tools were patentable - but not the naturally-occurring elements themselves, right?

     

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    lucidrenegade (profile), Apr 16th, 2013 @ 7:49am

    All I want to know is - did Clarence Thomas sleep through the hearing again?

     

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    Anonymous Coward, Apr 16th, 2013 @ 8:16am

    Except, of course, patents aren't about the sweat of your brow and how much work you put into something. Nor -- despite Meldrum's silly claims -- are they about letting companies "own" their findings

    You have a silly way of looking at this. And not surprisingly, you want to pretend like there's nothing Lockean about giving an inventor a patent just like you pretend like there's nothing Lockean about giving an author a copyright. Just like in the copyright world, sweat of the brow is a necessary, but not sufficient, condition for obtaining a patent. If the patentee has expended no effort, there'd be nothing to patent; without the sweat of the brow, there is no patent. Just because there are other criteria, such as novelty, usefulness, and nonobviousness, it doesn't follow that a patent is not a reward for the labor that goes into creating the invention. You have this silly notion--one that I presume is spouted in bad faith--that the existence of other criteria somehow erases the one that there has to be inventive effort before there is a reward. It doesn't work that way. The reward is what incentivizes the effort. This is so basic and simple that it's amazing that you pretend it's not so.

    You make the same mistake with your silly reading of Feist when you claim that since there is an originality condition then it means that copyrights are not at all about rewarding labor. Without that labor, there'd be nothing to copyright. The case law is full of references to patents and copyrights being a reward for labor. That very reward is what incentivizes the investment of time, energy, money, and skill--sweat of the brow--in the first place. It's amazing to me that you pretend like reward-for-labor has nothing to do with patents and copyrights. It has EVERYTHING to do with the two. You just hate patents and copyrights, so you sweep that part under the rug. You look really silly doing so. Why not just admit the truth about how the incentives work? Is your narrative really that fragile that you have to ignore this stuff? Are you really incapable of being honest about this very basic and fundamental part of patent and copyright? I really don't get it.

     

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      identicon
      Anonymous Coward, Apr 16th, 2013 @ 9:05am

      Re:

      What are you talking about? That rant was just a waste of space really. Your blind rage ad hominem is completely shadowing from any reasonable discussion you might have wanted on the topic at hand...

       

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        identicon
        Anonymous Coward, Apr 16th, 2013 @ 9:20am

        Re: Re:

        I'm talking about Mike's silly argument that copyrights and patents are not at all about rewarding the labor of authors and inventors. He's a denialist. And a bad one at that.

         

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          Anonymous Coward, Apr 16th, 2013 @ 11:37am

          Re: Re: Re:

          If you take it at face value, sure, it could sound like a straight up denial of one of the primary reasons for instating copyright in the first place.
          However, if you can abstract it a bit and take the "...how much work you put into something..." it sounds more like he is disagreeing with the proportionality between work and IP.

          That argument makes sense in other situations like "finding the solution to P vs NP" doesn't give access to a patent even though it may have taken 17 years and cost you $500 millions... In the case at hand, Myriad is citet for wanting the patent on account of their effort which is them - and not Mike - completely disregarding the other criteria.

          Just saying, is all!

           

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      identicon
      Anonymous Coward, Apr 16th, 2013 @ 9:47am

      Re:

      So show the part that says patents and copyright guarantee rewards for sweat of the brow.

      Go ahead. You're not too chicken to squeal "Bawk!" again, are you?

       

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        Anonymous Coward, Apr 16th, 2013 @ 9:55am

        Re: Re:

        LMAO! Huh? If there's no sweat of the brow, then there is nothing to copyright or patent. How can something be created without any labor? As I said, the case law is full of references to copyrights and patents being rewards for labor. Do you actually doubt this? And it's not that a return is GUARANTEED, as I'm sure you know. It's an exclusive right that permits its holder a limited monopoly. Whether they in fact earn a buck with those rights is up to them.

        And cute with the chicken talk. I love it. So angry, yet so wrong since I'm here, ready to discuss on the merits. Where is Chicken Mike? Hmmm... Gone as always. Too chicken shit to discuss anything that he posts. Little Angry Mike, hates the world and everything about it. So bitter. So wrong. So silly. I love this place.

         

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      identicon
      Anonymous Coward, Apr 16th, 2013 @ 10:31am

      Re:

      You really do need help.

       

      reply to this | link to this | view in chronology ]

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      Reality Check (profile), Apr 16th, 2013 @ 10:46am

      Re:

      You forgot google. Google is at the heart of this conspiracy.

       

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    art guerrilla (profile), Apr 16th, 2013 @ 8:31am

    but if we don't patent genes...

    ...who will make new genes ? ? ?
    what incentive will there be to procreate or mutate ? ? ?

    will no one think of the amoebas ? ? ?

    *snicker*

    oh, and -dog almighty- do i hates me some scalia, the fat-faced, human-shaped pile of shit...

    art guerrilla
    aka ann archy
    eof

     

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    identicon
    Jürgen A. Erhard, Apr 16th, 2013 @ 8:38am

    Scalia?

    Since my opinion on Antonin Scalia is non-printable I can't really comment. Other than the preceding sentence.

     

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    Reality Check (profile), Apr 16th, 2013 @ 10:27am

    Justice Scalia followed that up by asking why would anyone invent anything if they can't get a patent.

    Obviously, the wheel, and paper were both invented later than the patent system.

     

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      identicon
      Anonymous Coward, Apr 16th, 2013 @ 11:48am

      Re:

      Isaac Newton is such a fat-cat for his gravity license costs. I think that it is unfair to be able to set a cost based on intellectual property for something he can ultimately never own!

      Myriad? Ultimately, it's a fair switch:

      Myriad is such a fat-cat for their breast cancer gene license costs. I think that it is unfair to be able to set a cost based on intellectual property for something they can ultimately never own!

      In other words the basic case doesn't pass the test of reason. Doesn't mean that the SCOTUS will sniff it out though given the massive legal creep of patenteable on behalf of "nature".

       

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    identicon
    Anonymous Coward, Apr 16th, 2013 @ 12:25pm

    "why would anyone invent anything if they can't get a patent"

    To further humanity and progress? Is this no longer a valid reason?

     

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    identicon
    Anonymous Coward, Apr 16th, 2013 @ 12:54pm

    Look what I made vs look what I found,...

    The bottom line is this,...

    Your child comes up to you and says, "look what I made!," and hands you a leaf,... You tell them that was great, but they didn't make the leaf, that they found it instead...

    Now, if they glued together popsicle sticks into something to hold your cell phone, and said, "look what I made!," you'd say, "that's wonderful that you made that!," ... and put it in some out of the way place of honor,...

    Is what Myriad did a leaf or a popsicle stick cell phone holder??? Yep,... it's a leaf,...

     

    reply to this | link to this | view in chronology ]


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