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Monday Message Board

August 25th, 2003

Another Monday, another message board. Post on any topic, civilised discussion and no coarse language please.

Regular reader Observa suggests the topic ‘Is the patenting of living organisms the new face of slavery?’

I’d be interested in comments the more general question of whether the patent system has overreached itself and whether patents now do more harm than good (leading questions, I know).

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  1. carl
    August 25th, 2003 at 12:22 | #1

    Well speaking as a software developer my opinion is that the introduction of software patents has been a less than welcome development. They raise the costs and risks of creating and selling software, and benefit only those very large companies that can afford to hire alot of lawyers to help them write software. I presume there are similar negatives to some genome patents.

    Copyright is a perfectly adequate way of protecting investment in software and has the added appeal of simplicity and low cost. If you don’t know much about the problems of software patents, see this letter by computer science legend Donald Knuth, and this speech by free-software pioneer Richard Stallman. If nothing else, the incredible creativity of the software industry from the 60s through to the 90s demonstrates the redundant nature of software patents.

    I would also like to say that technical types like myself greatly appreciate the support of economists like Pr. Q. in trying to tame the ravernous beast that is modern IP law. Economists seem to have a healthy scepticism of these matters, for instance the interesting amicus curiae submitted by 17 economists (including Milton Friedman) in Eldred v Ashcroft. John is his usual polite self in saying that the patent system has “overreached itself”, but in reality IP law has been vigorously promoted by various economic interests due to its appeal as a legal restraint of trade. Drahos and Braithwaite paint an unpleasant picture of this process in their book Information Feudalism.

  2. James Farrell
    August 25th, 2003 at 13:11 | #2

    The patent issue is very simple, John, as you would realise if only you had paid a bit more attention to the charming and disarming Dr Mervyn Jacobson (unattractive, you so unfairly called him!):

    ‘Um, we own technology. It’s like, if I could give a similar example, we own some garden, some botanical park that people were used to just walking through when they wished. And from some point, it becomes privately owned. And the owner decides either not to allow people to enter or, if it’s desirable, allow them to enter, but they may need to contribute towards the cost.’

    For anyone who wants a glimpse of the new patent menace, the whole Four Corners transcript is worth reading, at:

    http://www.abc.net.au/4corners/content/2003/transcripts/s922059.htm

  3. Observa
    August 27th, 2003 at 02:01 | #3

    I get the feeling that patent and it’s close associate copyright are almost being outmoded in some evolutionary economic process. The quantum leaps in technology associated with such names as Stephenson, Marconi, Baird, Edison, Dunlop, Ford, etc, seem very distant to us now. Our technology comes to us now as the result of large corporate organisation of many processes and technologies. For example the major car manufacturers are quite comfortable sourcing many components from the same suppliers. It is more a question of them sourcing technological expertise and capacity to deliver, than any thought of protecting the property rights of their ultimate creation. It is hard to see GMH spending too much time on patent protection for its Commodore. It is much better off spending its resources on the design and implementation of the next model(as well as the prestige, appeal and history of its name). A natural protection against competition from new entrants, occurs not from patent protection, but rather the economic and prestige hurdles. (Mind you, I wouldn’t want to be the car company that produced a cheaper, replica Commodore, unless you were owned by the General).

    A similar situation occurs in the building industry with copyright of house designs. With decades of building with modern techniques and materials, there is a certain similarity of designs on offer by the industry. There are only so many ways you can cobble together a 4BR + Family room and Ensuite house. This situation can be also be likened to the music industry. How much genuinely ‘new’ music is played today, in the sense that it cannot be related to a genre or artist that has gone before. A certain patent/copyright fatigue is the logical result of a long technological evolutionary process.

    With this long, historical evolution of technology, there is also an inevitable consequence that the relatively new fields of genetics and IT, should generate the most heat in patent and copyright protection. A ‘We were here first’ mentality.

    While I am reasonably comfortable with intellectual property rights to reward (for a limited time) the industrial R&D efforts of firms and individuals, I would decline this right to the ‘ownership’ of the building blocks of life. This I would defer to the public domain on ethical grounds, with the full knowledge that this would impede the development of genetics and genetic manipulation. This should appeal to all naturalists, who are increasingly uncomfortable with the unforseen long term consequences of the genetic manipulation of plants, animals and mankind. In this regard I have some concern that to defer ownership of the buiding blocks of life, could be the new face of slavery.

  4. Greg
    September 1st, 2003 at 20:24 | #4

    Sorry to bring forward last week’s message board, but I have some fast talking to do.

    There is little doubt that the patent system yields substantial nett benefits, given its two central effects:
    [A] it stimulates allocation of the available private investment resources to otherwise-infeasible research projects, or those that would otherwise remain in the vector of proposals for publicly-funded projects (whether inventive or discovery-oriented – kindly indulge my misguided meanderings at PrQ’s post, ‘Copy that’, comment 3 on August 29, 2003 04:50 PM); and [B] it stimulates the availability of results immediately, subject to a finite period of monopoly production or licensing by the investor. The period is frequently 20 years, after which the project results are relegated to free availability in the public domain.

    Effect [A] brings project results backwards in time in two ways: firstly, projects are now conducted concurrently that would otherwise have most likely been undertaken either in serial (due to public-funds rationing) or not at all; and secondly, projects amenable to acceleration by increased funding levels are completed sooner. But there can be a counter-effect from [B], in which fee-induced rationing of the use of project results during patent period inhibits development of applications and further projects.

    The patent rules substantially determine which projects are rendered privately viable and which are left to be publicly funded, with the important proviso that private researchers are at liberty to remain outside the patent system and protect their research results by means of secrecy.

    Life forms were not patentable until 1980 in the USA. Had this remained the case, it’s highly unlikely we would have seen anything like the current state of biotech – we wouldn’t have been grappling as intensely with the problems/costs as we are, but neither would so many of the benefits have yet materialized.

    Whereas it’s now become something of a patent minefield in the USA (continue reading at the link above and refer to the 4 Corners story originally referred to by PrQ), things apparently remain more restrained in the UK.

    Here are a couple of reasonable background pieces to this issue: Emma Whitelaw’s review of Sulston & Ferry (2002), ‘The Common Thread’; Biotech Analytics’s discussion,‘Patenting the human genome.

    Conclusion 1: Many people will die due to elevated treatment costs resulting from monopoly pricing during 20-year patent protection lags. However, had life forms not become patentable – say, the UK system had prevailed – many people would nevertheless have died for two reasons. Firstly, there would have been large research investment lags, possibly even longer than 20 years, resulting from rationing of public funding. Secondly, where treatments would have become available as a result of private research projects, monopoly pricing would have prevailed due to some combination of protection by secrecy outside the patent system and the use of patents registered according to the UK criteria.

    Conclusion 2: Either way, the system is letting us down by imposing a level of inhumanity, but the patent system appears to be the best trade-off we have. Immediately-freely-available results from the existing level of investment in biotech research would, no doubt, yield nett social benefits but where are the policy instruments available to achieve this target?

    I’m afraid that, although many of us don’t like it, it appears that Dr Mervyn Jacobson has the last word on this subject: “I see the patent process as a very wholesome process. It’s been around for 400 years. It started in Britain, but most countries in the world have adopted it, modified it. It works very well. You interfere with that process, you interfere with invention, you interfere with innovation, with risk taking. And, in fact, in Australia, if you drastically interfere with an established process, you run the risk of damaging or destroying biotechnology in Australia, which not only harms biotechnology companies but it’s negative for Australian health care.”

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