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.

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Comments on “Who Says Innovation Incentive Theory Isn't Enough To Explain Why Patented Genes Are Problematic?”

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milomilomilo says:

Still an outstanding issue

Though yes there may be issues surrounding the motivations of the patent owner, there is something much deeper.

It is the fact that the human gene can be patented at all. To patent a naturally occurring biological structure, is, I think, over stepping the bounds.

Will we soon patent air, water, wind?
every inch of ground, water and air is already owned, must we really start placing rights over the very building blocks of what we are?

misanthropic humanist says:

patents without politics?

The word “obvious” is of little use. What is obvious? Let’s ignore absurdities like the “one click” patent for a moment, and other so called inventions that anyone with the wit to scratch their ass could arrive at. Instead consider some mathematical truths so that we can see how this always leads into a quagmire.

I’ve brought up examples like enumerating the integers, iterative addition as a process of multiplication. These are obvious to a child of 4 years old. So, what about closed forms of trigonometric equations? Not so obvious to a average person maybe, but to any mathematician they are painfully obvious. They are “intrinsic” facets of the number systems we use, they are essential to mathematics itself. It doesn’t matter if you express these truths as equations, or as computational processes that can be delivered by an ordinating machine, they remain basic features of the universe we inhabit. To happen upon them is a discovery, albeit one which takes significant mental effort or an investment of time to search for. The very concept of an invention is in many senses profoundly arrogant. Ultimately “obvious” is governed by how smart you are. No matter how smart you think you are there’s always someone who comes along and slaps you down. Someone wiser, to whom your elegant equations are trivial, will quite rightfully say, “sorry but that’s obvious”. And to them it is.

So what of human genes? They are also “intrinsic”. From an anthropological stance nothing could be more so. Any understanding of them is a discovery, an unmasking of a state of affairs that exists a priori to any human cognition, and this is a tautological truth. As we discuss here time and again we have arrived at this nonsense only by extrapolation of an ideal of protectionist economics, that because an inventor of mechanical devices deserved reward for his efforts and once needed protection to make capital in a world where anyone could copy his idea at a lower cost this principle should be extended to any research endeavour. The pendulum has swung the other way in todays world, now knowledge needs protection from incarceration by corporate entities.

As an aside, if you admit religion into the discussion then, in the USA for example, nobody of the Bush creationist creed could consistently argue for patents. Everything that ever was or will be, certainly in biology, is “God given” in the most literal sense. And my “God given rights to His knowledge are no different from yours. After all, we are all supposedly created equal in the eyes of God. But let’s come back down to Earth for a moment, and realising that we can never apply a test of obviousness to intrinsic truths, let’s try to redefine patentable”. And here is where I have to agree with Mike very strongly. The only useful test of whether patents should even exist is that they promote innovation, and for myself I’ll add, that they promote the progress of collective human knowledge for the greater good.

In the strictest sense patents can only apply to engineering, to constructs of materials and devices that never existed in the universe before they entered the mind of their human “inventor” and subsequently by action became manifest in the real world. The extension of the idea of invention into biology and computer science is nonsense. Here we are only playing with permutation and sequences of what is already given, with code, the entirety of which can be expressed in a few trivial formulas to exhaustively enumerate them leaving only the tedious task of test and experiment.

We need to get away from discussing the very subjective merits of research and ask, before any intellectual property is granted, “Does it promote progress to do so?” To do this we need to de-politicise the whole debate. That means admitting to an “abundance of knowledge”. Trying to find a cutoff point of “obviousness” is pointless.

Intellectual property works by establishing property rights. And property rights are the opposite of an enabling philosophy, they are exclusive. I define my property by what you may *not* do with my property. Protected ownership of knowledge only make sense within the limited context of a capitalist philosophy, the alternative being obscurity (secret knowledge). But as that tends to an extreme progress is defeated. All the essential knowledge on which to build is owned. The mistake of the capitalists therefore is to try and create an artificial scarcity of knowledge. Neither could progress prosper within a communist society because any “intellectual property” would pass immediately into the ownership of the commons and defeat any incintive beyond pure altruism or forced labour. The mistake of the communist therefore is to create a scarcity of incentive. Now, remember, the stated aim of all intellectual property is to encourage progress. It does this by defeating obscurity because by granting a limited right of protection which necessitates publication it guarantees that knowledge will pass into common ownership from where it can be built upon. Hmm. This is a unique juxtaposition of ideas. How can it possibly serve any political ideology? It can’t. What is the “political” nature of intellectual property? Is it communist? Or is it capitalist? It must be neither. I’ve said before, intellectual property is unique as a concept, being potentially both anti-capitalistic and anti-socialistic at the same time. To work (as a progressive force) it must be treated apolitically with an extremely fine balance and standards of rigor to keep it from being hijacked by either ideological wing.

Today our society has shifted to the right, which is damaging to progress. Intellectual property has been hijacked by the quasi-fascist corporatists. It is an attractive prize because it advances the power of the corporate “state” over the individual. But equally, if our society were to shift too far to the left the same damage would be done as was seen under the Soviets. Progress is therefore maximised by the realisation of a third way, an orthoganal axis. If either capitalist or communist idealogues have excessive control over intellectual property then we all suffer. We will always be in danger of allowing the debate to descend into a political discussion and contest between the merits of different production and social models, but avoid this and answer the question Mikes asks “Does it promote progress or not?”, and “How can you promote incentive in an economy of abundant knowledge without resorting to burying it by excessive ownership?”

Dave Sanford says:


The term intellectual property is an unfortunate one. Everyone “knows” that property is something that you can keep – as long as you want.

Now “intellectual lease” is not catchy enough – and it still doesn’t reflect either innovation incentive or the fact that knowledge is owned by the public and IP should denies the public their duly owned property only the period of time needed for innovation incentive.

I think that the battle to get the public to care what is being taken from them – starts with getting the right sound bites. Sorry I don’t have them.

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