By Kevin E. Noonan —

Some (bad) ideas are a long time a-dyin'.  One of the most persistent in
biotechnology patent law is the concept of the "tragedy of the
anticommons."  An intriguing
idea when first proposed by Heller and Eisenberg in 1998, it was also
frightfully naïve about the "anticommons" effects of circumstances
much more germane to most academic molecular biologists (like priority and
career advancement).  The core idea
was that permitting genes (particularly and parochially human genes) to be
patented would create a "tragedy of the anticommons," where private
ownership (however limited in duration) would somehow prevent genetic science
to advance.  Of the many
limitations of the idea, it neglected to distinguish the difference between
commercial exploitation of isolated nucleic acids to produce otherwise unavailable therapeutic and other
products (such as erythropoietin, human growth hormone, human insulin, tissue
plasminogen activator, and a host of others now comprising the more than 400
biotechnology drugs under development) and the information from which genetic
science has garnered the greatest advances in our understanding in
history.

As it has turned out, the concept of the "tragedy
of the anticommons" has been shown time and time again to be ephemeral to
the point of non-existence.  (It is
tempting to speculate that the idea persists because the phrase is so
clever.)  Scientific studies have
clearly established that there is no tragedy, and no anticommons.  These peer-reviewed studies include reports from the U.S. (Walsh et al.,
2003, "Science and the Law:  Working Through the Patent Problem," Science 299: 1020; Walsh et
al., 2005, "Science and Law:  View from the Bench: Patents and Material Transfers," Science
309: 2002-03), Germany (Straus, 2002, Genetic Inventions, Intellectual Property Rights and Licensing Practices),
Australia (Nicol et al., 2003, Patents and Medical Biotechnology:  An Empirical Analysis of Issues Facing the Australian Industry, Centre for Law & Genetics, Occasional
Paper 6) and Japan (Nagaoka, 2006, "An Empirical Analysis of Patenting and Licensing Practice of Research Tools from Three Perspectives," presented in OECD Conference in Research Use of
Patented Inventions, Madrid) finding that "patent thickets" (Shapiro,
2001, "Navigating the Patent Thicket:  Cross Licenses, Patent Pools, and Standard Setting," In:
Innovation Policy and the Economy 1: 119-50) or the "anticommons"
(Heller & Eisenberg, 1998, "Can Patents Deter Innovation?  The Anticommons in Biomedical Research," Science
280: 698-701) rarely affects the research of academic
scientists.

The paucity of
the concept is demonstrated once again in a paper by Fiona Murray (at left) and Scott
Stern (below right), from the Massachusetts Institute of Technology and Northwestern
University, respectively, and published in the Journal of Economic Behavior and
Organization ("Do formal intellectual property rights hinder the free flow of
scientific knowledge?  An empirical test of the anti-commons hypothesis," 63: 648-87), published in 2007 from data collected
between 1997-1999.  (A hat tip to
one of our favorite members of the anti-gene patenting crowd for overstating
(and as we will show, misinterpreting) the paper's conclusions with sufficient
(and typical) hysteria that it piqued our interest.)  The authors state their prejudices in the first section of
the abstract, citing "a growing 'anti-commons' perspective [that]
highlights the negative role of IPR [intellectual property rights] over
scientific knowledge."  In the
service of this idea the authors have performed a statistical study to try to
assess whether citation of scientific papers declines after a patent on the
technology is granted.  As one
might expect, the answer is "Yes," but as the authors themselves
recognize the effect is "modest" at best.  While the authors seem to have appreciated that their study
was performed on a sample certain to reflect the effect if it existed, the
weakness of their results with this dataset negates their thesis that there is
an anticommons effect or that any perspective based upon that mythical effect
is or should be growing (outside the world of academic journals).

The study was
based on 169 patent-paper pairs (and a total of 340 articles), wherein there is
first a scientific paper published in a journal (Nature Biotechnology) and later the technology disclosed in the
paper is encompassed in a granted U.S. patent.  The authors put
it this way:  "if the granting of IPR raises the cost of
building on a specific piece of knowledge, then the citation rate to IPR-linked
scientific publications should decline post-patent grant."  The authors then perform a statistical
analysis using the formula:

CITESi,t = f (εi,t ; γi + δt-pubyear
+ βt +
ψWINDOWWINDOWi,t

+ψPOST-GRANTPOST-GRANTi,t )

 "where γi is a fixed effect
for each article, δt-pubyear captures the age
of the article, βt is
a fixed effect for each citation year, WINDOW is a dummy variable equal to one
in the year in which a patent is granted and POST-GRANT is a dummy variable
equal to one only for years after the patent grant year for an individual
article."  The authors posit
that since empirical evidence has established that academic researchers do not
undertake proactive monitoring of IPR (citing Walsh et al., 2003 and Walsh et al.,
2005),
reductions in citation of articles having disclosure also encompassed in a
patent "is driven by surprise arising from the IPR."

The results are, as the authors acknowledge,
modest:

Table 3 compares the means of patented and unpatented articles within the
sample.  A few notable differences stand out.  First, the average rate of citation is relatively similar
across the two groups, with the patented articles receiving, on average, just
over an additional citation per article-year over the sample.  However, this 10
percent average difference masks more substantial differences that manifest
themselves over time.  In Fig. 3, the average FORWARDCITATIONS are plotted by AGE (years since
publication).  During the year of publication and in the subsequent 3 years,
PATENTED articles have a significant citation advantage, equivalent to nearly a
20 percent "boost" over the citation rates for non-patented articles.  However, in the fourth and fifth years after disclosure in the literature,
patented articles converge to the citation rate associated with non-patented
articles.  As we explore further in the next section, it is during these later
years in which patented articles are in the post-grant phase . . . .  These
data suggest that the number of citations and the article characteristics vary
across the margin of whether or not an article is part of a patent-paper pair.  While the drop-off in the citation advantage associated with patented articles
is consistent with the presence of an anti-commons effect, such an effect could
result from differences in the characteristics of articles represented in the
different age-cohort categories, which we explore in our more detailed
empirical analysis.

In the
empirical analysis section of the paper, the authors show that:

Three key findings stand out:  while patented articles enjoy approximately a 20 percent overall citation
boost, a patent grant is associated with an insignificant (though negative)
impact on citation in the year in which the patent is granted.  However the
post-grant effect is associated with a statistically significant 19 percent
decline in the expected citation rate.  In other words, the initially higher
citation rate for patent-paper pairs is erased in the years after a patent is
granted. . . .  Finally, in fourth column of Table
5, we report a differences-in-differences estimate,
including a separate fixed effect for every article, as well as a complete set
of fixed effects for age and citation year; as such, these estimates are identified
exclusively from the within-article contrasts between pre-grant and post-grant
citation levels (after accounting for the impact of article age and year).  According to this specification, the estimated post-grant decline is over 10
percent (and is significant at the 5 percent level).  Moreover, these baseline
results are robust to alternative specifications and sample definitions.

The decline was
found to be more pronounced with the number of years since the date of the
patent grant, and interestingly "is particularly salient for articles
authored by researchers with public sector affiliations," because the
authors hypothesize that acquisition of IPR rights by inventors from public
institutions are more likely to be a "surprise" to other academic
researchers (although they provide no evidence for this except a correlation
with more frequent reduction in citations of papers in patent-paper pairs
assigned to public institutions).

While the
authors confidently "reject the null hypothesis" that patents have no
impact on the diffusion of scientific knowledge, there are a number of flaws in
the analysis.  The first is that
there is no evidence that the comparison considered the claims of the patents
as opposed to the disclosure.  Since the claims define the patentees' "right to exclude,"
finding that the patents associated with these papers had claims of limited
scope would severely compromise any conclusions drawn about the effects of the
patent grant on forward citation (and presumably create an impediment to using the
disclosed technology).  The most
pronounced flaw is that the journal chosen as the source for the patent-paper
pairs is simply not the journal where cutting-edge scientific discovery in
molecular biology is published.  Several general and specialty publications (including Nature, Science, Cell, the Proceedings of the National Academy of
Science USA, even the Public Library of Science (PLoS) website) serve that role.  There are several journals devoted to disclosing the types
of scientific discovery associated with the "technology" of
biotechnology, and Nature Biotechnology
may be one of the preeminent journals of this kind.  But the types of articles published in this journal are
precisely those that are intended to be associated with patents, diminishing
any "surprise" anyone (particularly academic researchers
disinterested in IPR) might encounter.

Moreover, the
types of articles published in such journals have by nature a shorter "shelf-life"
than basic research articles.  These papers are not generally fundamental discoveries, but rather
articles describing technology having direct and evident biotechnology
applications.  So the effects on "scientific
knowledge" are minimal since the "knowledge" encompassed by
these articles amount, in general, to research tools rather than basic
scientific discoveries.

Finally, there
are counter-examples galore regarding citations to articles that are later
associated with patents.  For
example, the fundamental papers on the polymerase chain reaction (PCR) have
been heavily cited in the biotechnology literature since they wee published in
the mid-1980's, yet PCR is associated with extensive IPR (first by Cetus and
later by Hoffman-LaRoche).  So
using forward citation as a metric can be confounded by instances where
technology is developed and disseminated more broadly as the result of IPR
supporting commercialization.

While the
authors are properly "cautious in the interpretation of [their] findings,"
their intentions are clearly to show an anticommons effect.  This is not to say that they have not
performed their experiment or analysis properly.  It is evident, however, that the authors found what they
expected to find, although even they must admit that the effects are
modest.  The only reasonable
conclusion is that the modesty of the effects provides the most damning
evidence that there isn't much tragedy in those anticommons.  And one day maybe everyone will be
willing to admit it.