By Kevin E. Noonan —
The New York Times seems to have an unending supply of pundits willing to support its anti-patent agenda, as has been noted on this blog before (see below). The latest example is an article in this Saturday’s paper, entitled "When Academia Puts Profit Ahead of Wonder," by Janet Rae-Dupree. Once past its precious and naïve title, it evinces the same patent animus and the same degree of ignorance about the issues and the stakes behind them.
The piece is ostensibly about the Bayh-Dole Act, passed under the Carter Administration to permit, for the first time, inventors working in U.S. universities and funded by Federal grant monies to apply for patents on their inventions. The program is generally accepted to be a success, providing an alternative source of licensing revenue for universities and "the fire of interest" spurring innovation. But pundits, academic and otherwise, rarely achieve prominence affirming the status quo, and expectedly the success of the Bayh-Dole regime has engendered critics. The critics’ point is that the pursuit of profit has somehow stifled the pursuit of pure science and sullied the motivations of its academic practitioners.
To quote Ms. Rae-Dupree from another context, "Balderdash!" Unmentioned in the piece is the context under which Bayh-Dole was enacted. Before patent protection was available, U.S. academic science, funded by U.S. taxpayers, represented unpaid-for research and development for corporations, many of them from abroad. At least a portion of the American R&D fueled the economic miracle economies of Europe and Asia during the late 1960’s and 1970’s, unwittingly aiding and abetting competition by these economies for American jobs and technology. This trend turned around in the 1980’s, as Bayh-Dole and the creation of the Court of Appeals for the Federal Circuit strengthened patent protection for U.S. inventors. The consequence: a U.S. biotechnology sector that promoted the ascendance of U.S. pharmaceutical companies enjoyed until recently, as well as innovation in the telecommunications and computer fields. (If there is any doubt about the importance of protecting innovation, recall that twenty years ago everyone had a Walkman and today everyone has an iPod.)
Of more concern than a failure to appreciate these historical facts are the continued misstatements, particularly concerning patent law, that once again grace the pages of the Times. Quoting Daniel S. Greenberg, another anti-patent pundit, the article asserts that, had the current patent regime existed when Watson and Crick discovered the double helical structure of DNA, they would have tried to patent it. Like the hyperbole of others (see "Science Fiction in The New York Times"), the statement is not only wrong it is demonstrably wrong: the double helix, like the relationship between mass and gravity or the fact that water boils at 100°C (at sea level) is an unpatentable phenomenon of nature.
Indeed, Mr. Greenberg proves the converse of one of the arguments inherently advanced by the article: that somehow "corporate secrecy" has besmirched the heretofore pure pursuit of knowledge. Prior to the errant speculation that Watson and Crick would have patented the double helix, the article ascribes to him this apocryphal description of how science was done in 1950’s England:
When James Watson and Francis Crick were homing in on DNA’s double-helix structure in the 1950s, they zealously guarded their work from prying eyes until they could publish their findings, to be certain that they would get the credit for making the discovery.
Similar descriptions have come from Jim Watson himself, in The Double Helix and elsewhere. Thus, it seems that a due concern for advancing one’s own career provided ample motivation for jealously guarding research results very much before the advent of university patenting under Bayh-Dole.
Similarly wrong are the purported consequences of the infiltration of filthy lucre into the ivory towers of academe. The piece bemoans that "[b]lue sky" research — the kind of basic experimentation that leads to a greater understanding of how the world works — has largely been set aside in favor of projects considered to have more immediate market potential." Perhaps a quick perusal of the grant proposals to the National Institutes of Health or the National Science Foundation would have helped, since these are replete, even today, with exactly this kind of "blue sky" research. The reason is simple, and well understood by those who actually do the science: technology is when you know the answer, and the important and exciting work in science comes when you not only don’t know the answer, you aren’t really sure about the question. Grant proposals, while needing to convince the funding agency that the proposal has a chance of providing useful information, are not geared towards technological applications; perhaps Ms. Rae-Dupree is confusing this type of grant with applications for Small Business Innovation Research (SBIR) grants, which resemble the types of non-"blue sky" research she mentions.
Also untrue is that "[p]atenting a new basic science technique, or platform technology, puts it out of the reach of graduate students who might have made tremendous progress using it." Patents are meant to prevent commercial activity, and although there is no "pure research" exemption in patent law, there is a higher law in play: never sue anyone who doesn’t have any money. It is extremely unlikely that a graduate student, working on a dissertation that is used merely to fulfill the requirements of a degree and perhaps publish a paper in a scientific journal, would ever have need to worry about being sued for patent infringement. The proof of this state of affairs is that the poster child for the supposed risk of patent infringement, Madey v. Duke University, has never been used to support an infringement action for non-commercial research activities.
Many of the critics cited in the article represent industry, and they recite how the current state of affairs — where universities can patent their inventions — has stymied commercial application of these inventions. This is undoubtedly the case; it is always easier just to take the fruits of another’s labor than to pay for them. Uncritical reproductions of these types of complaints from industry can serve only one purpose, to persuade policymakers to rethink the Bayh-Dole scheme. While this might be good for those industries who have recently shown disdain for any innovation other than their own, it would not be good for the rest of us.
There are certainly some inefficiencies in the current system that are mentioned in the article, for example that only a few major universities have reaped the greatest benefits of licensing patented technology. Rather than damning the effort, however, this data merely confirms that invention, and profitable commercial exploitation of invention, is unpredictable, serendipitous and a lot harder than most of us (including, perhaps, some tech transfer managers) contemplate. The fact is that permitting university patenting over the past quarter century has fostered wide innovation, new products including new drugs and therapies, and promoted U.S. jobs and the economy. We would be foolish indeed to go back to having U.S. academia let corporations free-ride on the innovations produced as the fruits of their research.
For additional information regarding this and other related topics, please see:
• "New York Times to Innovation: Drop Dead," April 30, 2008
• "The Continuing Assault on Innovation at The New York Times," July 15, 2007
• "The Anti-Patent Beat Goes on at The New York Times," July 1, 2007
• "Science Fiction in The New York Times," February 13, 2007
• "Anti-Patent ("Sullivan?") Malice by The New York Times," January 29, 2007
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