50 Years Of Scientific Discovery & Sharing In Antarctica May End Thanks To Patent Greed

from the patents-against-peace dept

For the past 50 years, 47 countries have been a part of the 1959 Antarctic Treaty, which was used to establish Antarctica as a peaceful science outpost where scientists from many nations could work together and share their discoveries. And it may now all be coming to an end. Why? Because (as Will Klein alerts us) all this discovery and sharing is going on mostly without patenting! This has greatly upset a bunch of companies who want to hoard any such discoveries and want to be able to patent "Antarctic organisms or molecules." Beyond the rather serious question of why either organisms or molecules can be patented, this is a microcosm of what's wrong with patents. Patents are supposed to be used to encourage research (promoting the progress, remember). And this treaty has done a great job promoting progress without patents. As the article notes, products already "derived from Antarctica include dietary supplements, anti-freeze proteins, anti-cancer drugs, enzymes and cosmetic creams." In other words, all of that happened mostly without patents. The only reason to break up this treaty, stop the sharing, and start allowing patents is to slow down the discovery, hoard the results and limit the progress to single companies who get a monopoly on that work.
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Filed Under: antartica, discovery, patents, science, sharing

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  1. identicon
    Anonymous Coward, 7 Feb 2009 @ 3:10pm

    Re: Open-Minded & Other Things

    There is a corollary. If society is finding that intellectual property is not as useful as it should be, then society has a responsibility to change the system. That is what is happening right now. In re Bilski and the CAFC cases that have cited Bilski are correcting the system.

    Yes, In re Bilski does seem to be a correction, perhaps to the point that "software" (an ill-defined term) and "business method" (likewise ill-defined) are effectively eliminated from consideration under our patent laws. In a way I find this very troubling, but for reasons other than those typically propounded.

    I am intrigued by the interplay between patent and trade secret law. There are (dare I say it) nuances that in the long run could come back to bite the very persons who are strong supporters of the decision. Not very long ago Professor Miller at Harvard published a very thought provoking paper exploring these nuances, one of which was whether or not federal law excluding certain categories of subject matter from patent law was the equivalent of saying that as a matter of national policy no legal protection should be accorded to such subject matter, and specifically state protection under the law of trade secrets.

    As the law stands right now, software excluded under the patent law is completely eligible for protection as trade secrets. This is the majority view garned from Supreme Court precedent, but there is a minority view that if such matter is not protectable under federal law then is should likewise not be protectable under state law. Now, the majority view currently carries the day, and because of it it is mere child's play to employ contract law in a manner imposing constraints on use far in excess of what patent law permits.

    Personally, I do hope that in the not too distant future the current minority view becomes the majority view. Until that happens there is a gaping hole that is easily exploited.

    I do admire you for your above-noted goal. It is not that I believe Mr. Masnick is vehemently antagonistic to intellectual property. I have no doubt that were it conclusively shown that, for example, patents have a significant and positive economic effect, that he would reconsider his views and adjust them accordingly. Where he and I happen to differ is that I believe the sources upon which he relies are flawed in numerous, fundamental respects, the consequence of which is that they neither prove nor disprove anything. At best they simply leave things up in the air. Of course, there are contrary sources that suffer from similar flaws, each of them also leaving things up in the air. GIGO applies with equal force on both sides of the issue.

    I do hope you are able to achieve at least some small part of your goal. I am not, however, sanguine it will happen (as much as I hope I am proven wrong). I encourage you to keep up your good work and continue trying to serve as an honest broker.

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