Who Says Innovation Incentive Theory Isn't Enough To Explain Why Patented Genes Are Problematic?
from the try-that-again? dept
If you thought that some of the patent battles in the software world have been fierce, the biotech world can get even more bizarre, with things like patented genes. The NY Times is running an article looking at a few of the issues, including the story of a group of patients genetically predisposed to Canavan disease gathered up DNA samples, money and researchers to see if the gene in question could be discovered. It was. However, the researcher who discovered it proceeded to patent it, asking for royalties from any future tests for the gene. For obvious reasons, this pissed off the patients who had raised the money and contributed their own DNA, only to have it patented by a researcher they helped interest in the cause. However, what’s more interesting is that the NY Times is actually discussing this in the context of one professor’s attempt to shift the debate about biotech patents.
It appears that this professor, Dr. Stephen Hilgartner of my own alma mater at Cornell, is well-meaning in trying to change the way people think about patents. He wants them to think in terms of how patents impact more than just the discoverer, but a community of people and organizations, but there are some serious problems with his approach. He suggests that looking at patents as simply a way to encourage innovation is too limited, and doesn’t do much to explain problems with the system (apparently he hasn’t looked at some of the discussions we’ve had around here lately). Instead, he prefers a property-rights approach, that recognizes that property ownership comes with it certain responsibilities and limitations along with the rights. That’s a nice way to hint that patent holders may have more widespread responsibilities, but it’s a dangerous path to take. The patent system is designed to serve only one purpose: to encourage innovation. That’s why it was set up, and that’s the entire constitutional support for the system. Stepping beyond that takes you out of a defensible position — for good reason. If you start ignoring the innovation incentives and focus just on the property rights, it opens you up to patenting just about anything, for the sake of giving property rights — whether or not it drives innovation. The problem with many of the patents being discussed aren’t that the patent holders aren’t taking responsibility for the downsides to their ownership — but that the detriments to innovation often greatly outweigh the benefits. If the downsides are outweighing the positive aspects on innovation, than it’s a sign not that the way of thinking about patents are wrong, but that the system itself is broken, and the net value is negative. In other words, innovation incentive theory isn’t just adequate to help deal with some of these problematic patents, but it’s the only reasonable way to think about patents, because they serve no purpose if not to encourage innovation.