We Waited Too Long To Figure Out If Genes Are Patentable
from the now-it-will-only-cause-problems... dept
The interview was quite interesting, and while most of it reviewed some of the big discussion points (what's the "problem," where is the reform plan heading, does it make sense to carve out exceptions -- such as for software patents) my final question to him was about the lawsuit we wrote about yesterday concerning the patentability of genes.
Lemley did a great job outlining the issues brought forth in the case, but concluded by highlighting what I believe is the big problem with letting the courts sort things out. He noted that while there had been legal battles over patented genes before, they had always been between two biotech firms, neither of which wanted to challenge the very idea of gene patents. So, instead, the very concept of patenting genes has been left untested in the courts for twenty-five years. What's the result? Well, an entire industry built up around it. If we suddenly say that genes are unpatentable, that will wreak havoc in that industry. Now, that may be a good thing, but it highlights the problem of leaving the question to the courts. Since no one challenged this for so long, the disruption could have quite an impact.
Earlier in the interview, Lemley quoted one of my favorite quotes about the patent system, by economist Fritz Machlup, who noted that, if we had to do it all over again, there appears to be no reason to actually create a patent system, but since we already have one, it doesn't make sense to get rid of it. But that's a big part of the problem. Now that we already have "patented genes" and an entire industry built up over 25 years around it, some will undoubtedly argue that it doesn't make sense to get rid of gene patents because of all the problems that would cause. And thus, we're left with a situation that has been highlighted in Petra Moser's research: the patent system, by default, distorts the market by creating certain industries built up around those patents, and makes it very difficult for more complete market forces to take effect.