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February 15, 2007
Patent balance
In an op-ed earlier this month in the Washington Post, Joseph Fuller and Brock Reeve discuss the future of stem cell research (Will We Lose in the Stem Cell Race?). In the piece they contrast the current state of research to the past success in biotech. As part of that discussion of the reasons for that success, they highlight the contradictory role of patents:
Government actions and court decisions allowed the patenting of living organisms and made it possible for private researchers to commercialize discoveries funded by federal grants. Further, Stanford University, which controlled key patents, ensured their widespread and rapid adoption.
On the one hand, proprietary control over ideas as protected by patents was needed to provide commercial incentives. On the other hand, fundamental underlying ideas needed to be shared even if they were already patented. In other words, it was the right balance between proprietary and shared information. Had Stanford not made their patents widely available, the US biotech industry may have floundered. This is a point Fuller and Reeve unintentionally amplify later when they remark, "while Stanford granted 73 nonexclusive licenses in less than a year, WARF has awarded just 13 licenses in eight years under economic terms that many believe have slowed the sector's growth." [The Wisconsin Alumni Research Foundation (WARF) holds the fundamental patents underlying embryonic stem cell research.]
Biotech is not the only example of the need to share information as well as protect it. Radio technology was going nowhere until the government stepped in a created a patent pool (controlled by the newly created Radio Corporation of America - RCA). A patent pool between the Edison and Biograph companies ("the Trust") allowed the motion picture industry to gain a foothold (and ironically helped found Hollywood as independents move from New York to Los Angeles to escape the control of this Trust).
There is an inherent tension between control of information and sharing ideas -- a tension that makes the system work. Neither the "everything should be free" nor the "I own it completely; it's mine" side are completely right or completely wrong. It is a balance.
We need an intellectual property system that understands that balance. Right now, many feel that the system is out of balance. For example, Michael Crichton, in an op-ed in the New York Times - Patenting Life - takes a harder stance on gene patents:
Gene patents are now used to halt research, prevent medical testing and keep vital information from you and your doctor. Gene patents slow the pace of medical advance on deadly diseases. And they raise costs exorbitantly: a test for breast cancer that could be done for $1,000 now costs $3,000.
He would like to see gene patents done away with.
I'm not sure I agree. But I am sure that we need to look at what can and should be protected by patents. We also need to look at mechanisms for patent sharing.
So, it appears that there is a long list of items that should be on our patent reform agenda. I hope Congress is listening.
Posted by Ken Jarboe at February 15, 2007 8:43 AM
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