Patently Absurd

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In another even more brazen example, a computer programmer in 1985 won a patent for outlining a process by which certain products could be purchased and delivered electronically over a computer network. He later sold the patent—and it eventually landed in the hands of a company called E-data, which now claims to own the idea of Internet commerce. Any online business that isn’t willing to pay substantial annual royalties is risking a lawsuit; at least 43 have been filed so far.

As Wallace Judd, a manager with Netscape, has said, it is the difference between a patent on a particular improved mousetrap and a monopoly on the idea of trapping mice.

And then, of course, there’s the whole question of patenting the mice themselves—transgenic mice, that is. When we turn our lens from computers and agriculture to medicine, the picture gets even more frightening. Remember the argument in the late ’40s over who “owned” the Dead Sea Scrolls? Academics were up in arms that their noble tradition of open scholarship was being extinguished when a small group of researchers declared that they essentially held a monopoly on this important historical document and its interpretation. When the monopoly is on a lifesaving treatment, rather than an ancient scroll, the same tradition is violated, but the stakes—both financial and moral—are higher.

“The overarching challenge is clear,” writes Shulman. “Society can improve public access to every kind of information, or it can let parochial private interests shape the future.”

The only solution is for the government—either Congress or the courts—to establish guidelines, he argues. “Unless society tackles the issue head-on, the privatization of knowledge assets will choke productivity, magnify inequities, and erode our democratic institutions.” In the very murky waters of intellectual property rights, that is about all that seems clear.

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