Tag Archives: science

Nintendo Threatens Cancer Researchers

aka “Pokémon Producers Pissed”

Pier Paolo Pandolfi of Sloan-Kettering Cancer Center has apparently received a trademark cease & desist from the Pokémon company (Nintendo) after cancer-related research on the Pokemon gene — which Pandolfi’s lab named four years ago, in 2001 — received headlines like “Pokemon Causes Cancer”. Sloan-Kettering has knuckled under, now calling the gene Zbtb7. See Nature, v. 438 no. 7070 (15 Dec. 2005) [html and pdf] (subscription access may be required).

Thumbnail of Nature article on Pokemon, with photo absent due to intellectual property concerns

Nature editors with a sense of humor?
Maybe. And some likely confusion
between trademark & copyright.

I would love to see that cease and desist letter. I’m sure they claimed both trademark infringement and dilution, and the kitchen sink, but come on. Trademark infringement is really a wash: consumer confusion between a Japanese video game and a cancer-causing gene? I’d like to see them try to prove that one in court.

Trademark dilution initially sounds like a stronger claim. Let’s just grant that “Pokémon” is “famous”. Dilution requires first of all the defendant’s “commercial use in commerce”. 115 U.S.C. 1125(c). I’d like to see the plaintiffs try to prove this one, too: that Professor Pandolfi’s pioneering medical research at a nonprofit cancer center is a “commercial use in commerce”.

After they passed that hurdle, the Pokémon plaintiffs would then have to prove actual blurring or tarnishment. Id.; Moseley v. V Secret Catalogue, Inc., 537 U.S. 418 (2003). “Blurring” involves the “whittling away” of distinctiveness caused by use of the mark on even dissimilar products. It seems unlikely but not completely impossible that the use of the word “Pokemon” to name a gene discussed largely by scientists and occasionally in the scientific press could “whittle away” at the distinctiveness of a video game chiefly adored by 10-year-olds. That would have to be actual blurring, though, so bring on the surveys of 10-year-olds. Prepubescents, that is, preferably evaluated both pre- and post-exposure to that pernicious purveyor of Pokemon pandemonium, Professor Pandolfi.

So what about tarnishment? I presume that Nintendo was most concerned about tarnishment, since the C&D notices apparently went out only after bloggers & news reporters styled their stories “Pokemon causes cancer”. “Tarnishment” is a more interesting claim than blurring, at least to me — perhaps just because I have fantasies of seeing a brilliant oral argument explaining the science: Plaintiffs: The defendants’ association of our perfectly upstanding product with a cancer-causing gene is unsavory! Defendants: Your Honor, plaintiffs clearly lack any understanding of science. Genes may have multiple functions. “Good” or “bad” is a matter of context. That which causes cancer in one instance is also necessary for cellular function …. Etc. Eric Rothschild could do it, since by all accounts he did a bang-up job in Kitzmiller. (1)

And once again, it has to be actual tarnishment, not potential: Perhaps Nintendo could show its profits were imperilled by potential customers’ unsavory associations of computer games and cancer, but Nintendo merely being petrified of unsavory connotations of one application of a gene shouldn’t suffice.

So the claims look pretty paltry to me. And Nintendo took its time in raising them, too. Pokemon (the gene) has been in the literature since at least 2002, and Nature reported that it had been used in this way as early as 2001. (2) This doesn’t seem like punctual policing to me.

You’d think Nintendo would have been more upset by, say, studies which actually used the animated TV show “Pokémon” to study inducement of epileptic seizures — a phenomenon that was actually named “Pokemon phenomenon”. See, e.g., Fisher et al 2005; Furusho et al 2002. Or one might have expected that Nintendo would have seen that discretion was the better part of valor in this instance, and decided not to risk recalling media attention to the Pokemon-medical connection. And why didn’t their PR people chime in on this one? Suppose Nintendo actually made good on its threats; can’t you see the headlines? Video game company sues cancer research institute? Not the best PR in the world.

For more info, see Pokémon the game [wikipedia and official site, or, hey, contact them to ask your questions directly]. Read about the pokemon gene at wikipedia or search pubmed for pokemon.

And btw — please pardon the persistent placement of “p” in this post. I couldn’t help myself.

update 12/20: I see that c|net and boingboing are now on the story.

(1) For some reason the website of Eric Rothschild’s firm is down as I write/update this post. I can’t help but suspect foul play on the part of angered creationists.

(2) I tried to get a history of the name from Flynome, which has the history and source of various amusing fly gene names. (I’ve blogged it before.) But alas Flynome does not include Pokemon. It doesn’t have Sonic Hedgehog, either, another videogame/gene name, this one owned by Sony who has chosen wisely to remain silent on this potential ‘dilution’. Flynome does include ken and barbie whose litigious TM-owner Mattel has, like Sony, somehow managed to refrain from temptation in this instance.


a variety of exciting carnivals to read:

for more … blog carnival index and the über carnival site

open content as solution to exploitation of indigenous IP

It’s great to see more info about the rumored the Traditional Knowledge Digital Library — which will publish India’s traditional knowledge:

Indian scientists say the country has been a victim of what they describe as “bio-piracy” for a long time.

“When we put out this encyclopaedia in the public domain, no one will be able to claim that these medicines or therapies are their inventions. Till now, we have not done the needful to protect our traditional wealth,” says Ajay Dua, a senior bureaucrat in the federal commerce ministry.

[I]n most of the developed nations like United States, “prior existing knowledge” is only recognised if it is published in a journal or is available on a database – not if it has been passed down through generations of oral and folk traditions.

The irony here is that India has suffered even though its traditional knowledge, as in China, has been documented extensively.

But information about traditional medicine has never been culled from their texts, translated and put out in the public domain.

A little confusion between “publication” and “public domain” …

No wonder then that India has been embroiled in some high-profile patent litigation in the past decade – the government spent some $6m alone in fighting legal battles against the patenting of turmeric and neem-based medicines.

In 1995, the US Patent Office granted a patent on the wound-healing properties of turmeric.

Indian scientists protested and fought a two-year-long legal battle to get the patent revoked.

Last year, India won a 10-year-long battle at the European Patent Office against a patent granted on an anti-fungal product, derived from neem, by successfully arguing that the medicinal neem tree is part of traditional Indian knowledge.

In 1998 the US Patent Office granted patent to a local company for new strains of rice similar to basmati, which has been grown for centuries in the Himalayan foothills of north-west India and Pakistan and has become popular internationally. After a prolonged legal battle, the patent was revoked four years ago.

The rice patent was new to me. Apparently, we will have to document not just every single preexisting medicinal use, but every single preexisting bit of human knowledge, to prevent companies from trying to enclose human knowledge.

Then they mention the yoga case (now settled favorably for open source yoga advocates):

And, in the US, an expatriate Indian yoga teacher has claimed copyright on a sequence of 36 yoga asanas, or postures.

mouse songs verified by at-home cat test

BoingBoing recently posted about the songs sung by male mice during courtship, linking to the PLOS Biology article, and the audio files of the actual songs.

We independently verified the actual mouse-nature of the songs by performing a Spontaneous Audio Performance Test (SAPT) with a feline experimental audience.* Sure enough, four sleeping cats roused, lifted their heads, and twitched their ears while the songs were played. One actually rose to a standing position. The subject felines failed to respond to the recorded sparrow song.

Because PLOS Biology is open-access, you can try this one at home.

* No animals were harmed in this experiment. All research animals involved in this experiment receive the highest quality of care, including personalized feeding and support by a trained post-doctoral biologist and her aide; free access to legal counsel and representation; and consultations with a high-quality veterinary facility.

anti-racist Einstein

A new book by Fred Jerome & Rodger Taylor, Einstein on Race and Racism, fleshes out the historical record on Dr. Einstein’s anti-racist work. The most amazing thing is that, apart from a few quotes, the work that Einstein did on race has been largely forgotten by the public, and obliterated from popular historical accounts of his life.

The avalanche of Einstein images – genius, brilliant, absent-minded, kindly, bumbling and more – has all but buried Einstein’s political dimension, and totally covered up his civil-rights activities which have remained virtually unknown to his tens of millions of fans and followers.

… Einstein and Paul Robeson, two of the 20th Century’s most famous and popular figures, were not only friends but co-chaired the American Crusade to End Lynching and shared a dozen other anti-racist activities ….

Yet, despite Einstein’s clear intention to make his politics public – especially his anti-lynching and other antiracist activities – the history-molders have seemed embarrassed to do so. Or nervous. “I had to think about my Board,” a museum curator (who doesn’t want his name used even today) said, explaining why he had omitted some of the scientist’s political statements from the major exhibition celebrating Einstein’s one hundredth birthday in 1979.

Racism in America depends for its survival in large part on the smothering of anti-racist voices, especially when those voices come from popular and widely respected individuals – like Albert Einstein. This book, then. aspires to be part of a grand un-smothering.

It’s on my library reading list now. [Link from Marian’s Blog 10/31 via Dru Blood]

tech mandates and reproductive care

I never cease to be astonished by how smarmy politicans can be: today, leaders in the Smarm Community, the anti-choice people (‘pro-lifers’). The latest RU-486 story in the NYT, sensationalistically titled “2 More Women Die After Abortion Pills”, covers two recent RU-486 deaths (two, for a total of five; four of which were probably infection-related). Naturally the pro-lifers jumped on it, using the opportunity to pontificate piously and misleadingly. Here’s “Concerned Women of America” policy director Wendy Wright:

“Sadly, people who support RU-486 apparently believe the risk of death is preferable to having a child.”

Wright’s politicized sorrow obscures the facts, some of which are included in the NYT article. It turns out that these two deaths are from infection after RU-486 abortion, and, statistically, the deathrate from infections after childbirth and abortion remains consistent across procedures and methods. [The NYT article fails to mention anything in response to this misleading quote; I would have thought that the risk of death from ‘having a child’ would have been appropriate here. The risk of long-term health problems, considerably greater for childbirth than for any method of abortion, might also have improved the article. But ranting about the NYT is a task for another day. For many other days.]

Politicized Research

The statistics are unsurprising, but in the politicized world of abortion statistics you would have difficulty verifying the data, or trying to flesh out Ms. Wright’s statement. For instance, if you googled something like ‘childbirth abortion mortality rates’, you could see that Google has been successfully bombed by a flood of political sites on the topic (largely anti-abortion). You have to get to the second page of results before you actually start seeing any material from the medical community.

A search of PubMed proved much more helpful. The scientific literature largely treats abortion, pregnancy, and birth control as part of a continuum of family planning and reproductive outcomes — what I’ll call the reproductive medicine approach. This makes sense. Research that seems tailor-made to proving somebody’s point about abortion (from whatever perspective) is just inherently less trustworthy.

The reproductive medicine approach makes clear that when the government gets involved in restricting women’s reproductive choices there are clear medical consequences: Whatever the risks of specific procedures, techniques, and reproductive outcomes, what’s really risky is lack of access to family planning and contraception. Unplanned pregnancies are, ultimately, the cause of most pregnancy & childbirth-related mortality, by leading to high-risk pregnancy, or in many countries, illegal or quasi-legal abortion. In the US, for instance, restrictions on abortion delay many women’s access to the very safe first trimester abortion, perversely leading to more late-term abortions. But the message from those who would politicize and involve the government in individual medical decisionmaking, is never about healthcare or policy, probably because the healthcare policies they would propose would be unacceptable to most people. Instead, they focus on particular technologies, techniques, and procedures — effectively establishing technological mandates and prohibitions.

Technological Mandates Are Bad Government

It’s almost never a good idea for the government to establish technological mandates. Technological developments are notoriously difficult to second-guess or steer; tech mandates all too often exemplify the law of unintended consequences [Library of Economics, WikiPedia]. Whenever Congress or state legislators try to take aim at specific technologies, they end up effecting a lot of other changes, scattershot. And any technologically specific law is bound to be out of date very quickly.

We usually think of tech mandates & prohibitions in geeky areas, like copyright: the DMCA (thou shalt not tamper with copy protection measures, etc.); DAT (digital audio tape recorder manufacturers shall include copy protection schemes); broadcast flags (thou shalt include broadcast flag recognition technology in video recorders). But the same impulses are clearly at play in the politics around abortion and birth control. And as in copyright, politicians’ attempts to mark out this or that technology, technique or method as sinful and wrong is bad policy. The politicization of this or that reproductive medicine technique (most recently emergency contraception and intact dilation and extraction, or so-called ‘partial-birth abortion’) only hampers attempts to improve reproductive medicine and outcomes for women, infants, and their families.

Abortion is only the most obvious example. Legislators do nobody any favors when they start toying with technological mandates in any field.* Look at the recent Congressional hearings on stem-cell research. Saletan in Slate tried to put a good spin on it: These guys are working really hard & exploring the issues; isn’t that nice? Yeah, that’s nice from a personal growth standpoint, but the problem is these guys are making laws about very specific techniques, and they have no clue what they’re talking about, much less doing. They don’t understand biology, they don’t understand genetics, they don’t understand development.

But Congress members do understand policy-making, and one might argue that they understand ethics. Well, err, anyway, they understand policy-making. So if Congress members feel they must Take Action, then I have a suggestion for them: Do what you know — make policy. Set out broad principles of respect for life (which includes the lives and health of women as well as the lives of their potential children) and autonomy. Fund research into family planning methods that enhance autonomy and health. Make principled statements that are general about no wanton cruelty (or whatever) in harvesting stem cells. Skip the specific tech mandates.

Then Congress could let the NSF & NIH apply those guidelines when funding specific grants. That’s what regulators & grantors are good at: reviewing specific proposals to see if they fall within general guidelines. And Congress could let the courts interpret those terms in the course of litigation. That’s what courts are good at: reviewing the facts of particular cases, heartwrenching, difficult cases, and figuring out how to apply broad principles. And Congress could stop grandstanding and micromanaging cases (like Schiavo) and technologies (anything to do with biology, family planning, and copyright protection is by definition a Bad Idea for Congress to muck with — others no doubt will occur).

follow-up: 2005/7/25: The AP version of the story also pointed out that the women who got the infection and took the drugs may not have followed FDA-approved instructions.

The agency also said the four deaths occurred among women who were treated at clinics that didn’t follow FDA-approved instructions for the two- pill regimen. Although the FDA stressed that it could not prove that the “off- label” use was to blame, its new public health advisory warns doctors of the possible link to such use.

The fifth death followed a ruptured tubal pregnancy, a dangerous condition and type of pregnancy that the drug does not terminate.

Geez. Could the NYT article have been any less informative?

* For that matter, technological mandates & prohibitions really might be considered a subspecies of micromanaging generally. The Terri Schiavo fiasco demonstrates why legislators should stay out of individual cases, and far, far out of medical decisionmaking.

charles darwin’s posse

A friend passed me this stamp along with the following message for ‘pro-science subversives’:

Charles Darwin has a posse.

These stickers are being introduced to increase awareness and appreciation of Charles Darwin. His theory of natural selection provided a simple, non-supernatural explanation for how life on earth had evolved and continues to evolve. Although scientists worldwide view evolution and natural selection as completely uncontroversial, popular support in the United States is waning, especially with respect to the origin of humans. Without more public displays of affection for the theories of natural selection and evolution, it is likely that more and more schools will allow or even promote the teaching of evolution “alternatives” that invoke dabbling by supernatural entities. To provide some of the needed visible support for science and reason, please consider stickering something with his image. Sure, these efforts are probably completely futile, but wouldn’t you sleep better tonight knowing that you’ve done your part to delay our slip into Dark Ages II? Instructions and tips can be found below. Thanks!


… And in keeping with my passion for noting cultural begats, I note that designer Colin Purrington says of the image that

The overall design shamelessly emulates the “Andre The Giant Has A Posse” art project that I got to witness when I was a youth in Providence.

“André the Giant Has a Posse” was conceived by Frank Shepard Fairey and “at least one other unidentified person”. The WWE [World Wrestling Entertainment] threatened a lawsuit (presumably right of publicity?) and the image mutated into a more iconic image with the words “OBEY” or “DISOBEY”. More info at obeygiant.com and Wikipedia.