Patently Absurd: Why It's Time to Rethink Our Notion of the "Patent"
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.” 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.”
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.
 Shrecker, Ted, Elliot, et. al. “Ethical Issues Associated with the Patenting of Higher Life Forms.” Intellectual Property Policy. n. pag. Online. Available: http://strategis.ic.gc.ca/epic/internet/inippd-dppi.nsf/vwgeneratedintere/ip00095e.html.