Monday, March 20, 2006

Patently Absurd: Why It's Time to Rethink Our Notion of the "Patent"

Michael Crichton's guest column in today's New York Times is an amusing-bordering-on-hysterical polemic attacking the present criteria for patentability in this country.

From the patent issued in 1986 covering the biological relationship between elevated homocysteine and B-12 deficiency, Crichton traverses a slippery slope until he arrives at a nightmarish world of patents in which Philip K. Dick thought police prosecute the patent covering an "essay or letter criticizing a previous publication." The result: even in your own head you couldn't disagree with what I'm writing here without first shelling out some coin (although whether that would go to me or to Mr. Crichton is not entirely clear).

Crichton's histrionics are certainly not out of character. After all, Crichton's most recent book, "State of Fear", carried similar warnings about the dire consequences that will ensue unless society corrects its poisonous blend of law, policy, and science. In "State of Fear" the target was environmentalism; today it is patents.

I rankle against Crichton's slippery slope strategy (unless we draw the line here and now we will descend into a sci-fi patent hell) because it strikes me as needlessly alarmist. When it comes to slippery slopes there are two basic kinds: the logical slippery slope “holds that we are logically committed to allow B once we have allowed A” because there is “a genuine causal element linking the top of the slope with the bottom.”[1] The alternative is the empirical slippery slope which “tells us that the effect of accepting A will be that, as a result of psychological and social processes, we sooner or later will accept B.”[2]

In the case of patents, with the issue of what is a proper subject for a patent determined largely in the courts, it’s hard to see how our precedent-orientated system of law could place us on a logical slippery slope that would commit us to patenting B once we had patented A. The very notion of precedent is that at ruling on A governs future situations involving A, not B. It would take affirmative extensions and expansions by the courts of existing precedents in order to transition from A to B to C to the Philip K. Dick patent thought police. The alternative, the empirical slippery slope, is possible but hardly inevitable.

Nevertheless, though I disagree with the seeming inevitability with which Crichton portrays the descent into absurdity of our patent system, I think that his ultimate point is well taken. Our notion of what sorts of things and ideas are and are not patentable is one that is in need of a serious overhaul. As the lines between biological and technological and between discovery and invention grow increasingly opaque it is irresponsible and untenable to continue to hold these debates exclusively in the courtroom. What is "patentable" is a question of law only as long as society refuses to intercede and rewrite the laws.

Irrespective of what the Supreme Court decides with respect to the patentability of a biological link between elevated homocysteine and B-12 deficiency Crichton is right: that bare fact doesn't deserve to be protected by patents and fee requirements, and it likely shouldn’t even be a very close question. There are other, better ways to promote cooperative scientific and medical research than to patent everything under the sun (and, as Crichton might suggest, the sun itself, photosynthesis, and the concept of 'daytime'). That we have gotten to this point means that, in spite of all the difficulties involved in rethinking and reworking something as entrenched as the patent protection system, it is time to rethink when and why it is appropriate to issue a “patent.”

Update (3/20): Find the NY Times article discussing the Supreme Court case on this issue, LabCorp v. Metabolite Laboratories, which is scheduled for oral argument tomorrow. Also, the patent at issue is available here, and Metabolite's brief is available here.

[1] Shrecker, Ted, Elliot, et. al. “Ethical Issues Associated with the Patenting of Higher Life Forms.” Intellectual Property Policy. n. pag. Online. Available:



Blogger elf's DH said...

Hi. I found your blog through Technorati, and thought I'd put in 2c.

That we have gotten to this point means that, in spite of all the difficulties involved in rethinking and reworking something as entrenched as the patent protection system, it is time to rethink when and why it is appropriate to issue a “patent.”

The system really is already being "reworked," but without the "thought." The two examples I'm most familiar with are computer software and biotech. Computer software is explicitly excluded from patentability. Then, some genius realized that if he patented a computer running the software, it became a patentable machine, and the software patent was born. Now, the software industry is trying to patent everything under the sun to create a situation of mutually assured destruction between the big industry players. Occasionally, a patent troll firm sues a large company, expecting a huge payout.

Then, there are gene patents. There are two types of gene that one might apply for a patent on. One is the kind you find in nature, and you found out its natural function, and the other one is a kind you engineer (for example, bug-resistant crops). I would consider the former a discovery and the latter an invention. The patent office has accepted patents for both.

On the fringe, there's the guy who is applying to patent movie plots. IMO, he didn't learn the lesson of software patents -- he's arguing that the plot is a novel invention. Instead, he should be arguing that the specific movie plot running on a projection apparatus is his invention.

Mon Mar 20, 04:42:00 PM EST  
Blogger Impatient Patient said...


Have you read the book "The Truth About the Drug Companies" ? In it is a chapter on how patents have essentially raised and kept the costs of pharmaceuticals to the heights they are today. Considering that drug patents have cost the governments, HMO's, insurers and citizens oodles of money over the last how many years, the discussion in the book seems to be reasonable. It posits that because each time a company wants to protect patent, it finds new ways to patent the drug, or new populations on which to test the drug. I find it fascinating that this goes on, as it does seem like it is a system that works in all its inherent evilness.

The thing that bugs me is that very few people have come out and challenged the idea that drug companies have contributed mightily to the costs of health car in any coherent and systematic way. If I was an insurer, I would want to know why this was happening. If I was a doctor I would want to know the same thing. Unfortunately, this probably won't happen as insurers and doctors are often bought off by drug companies. Maybe that is too strong of language, but I can tell you from life experience that a salesman is often more reputable to a doctor than a questioning patient. And, I have seen insurance companies push a certain drug on people without really knowing its mechanism of action, nor its actual reason/medical syndrome it should ideally be used in. A months supply ranged in the hundreds of dollars. Its efficacy was doubtful, and even after a failed trial, two years later it was once again recommended.

Crazy hoopla stuff. I am not anti drugs, I am just anti drugs without a damned good reason.


Wed Mar 29, 11:18:00 PM EST  
Blogger Tim Kanwar said...

I certainly agree that patents, and the drug companies that pursue and prosecute them, have contributed extensively to the high cost of drugs in this country. And, furthermore, there's little question that some companies - whether comprehensively or through individual actors - have been guilty of ethical violations (promoting drugs for off-market uses is, as you suggest, certainly one of these).

However, I don't want to be taken to be anti-patent, or anti-pharma. I think that both of these institutions are necessary, to a degree, to ensure continuing drug development and availability in this country. I just think that each, in its own way, could stand to be revamped.

Do I think that drug companies, or biotech companies for that matter, should profit from their productive research and innovations? Yes, I do. Do I think they should profit quite as much, and in as many instances, as they currently do? No, not really.

I need to address this topic at length, and I will try to do that soon, because I think there are productive ways in which the current system can be criticized, and improved, before we throw up our hands in despair and give it up as an evil enterprise.

Fri Mar 31, 12:30:00 PM EST  
Blogger Impatient Patient said...

Ahh- how do you do that when the cards are stacked against change?

Patent lawyers and pharma lawyers as well as the companies themselves are not going to give up an inch without a fight. The way the US is going these days, these issues are probably not very relevant to the average joe, as they don't really understand why things cost what they do. Did that sound snobbish, because I know I didn't mean it as such, but I know that when I discuss this with friends and family their eyes glaze over and they ask me if I have kept up with American Idol. I do not have much faith in the people I know to give a hoot. There are so many other issues that are in people's face- job security, the war, gas prices and issues like abortion evolution and gay marriage- that who has time. If churches wanted to do some good they could talk about these issues, but there I digress, and sound cranky.

Really- churches have been agents for positive change. They could do it again.

I canot wait to read the article on this and will look up some of this stuff on my own to get some background knowledge...

Have a good one!

Sat Apr 01, 05:20:00 AM EST  

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