Patently Absurd

The Microsoft anti-trust trial reminds us that the U.S. attorney general’s office–in principle and, on occasion, in practice–does not look kindly on unchecked monopolies. But just outside Washington, in another federal office, it seems our government has been handing out commercial monopolies on everything from specific medical treatments to concepts as broad as the “idea of Internet commerce.”

The culprit is our patent system. Once restricted to protecting the rights of inventors to the designs of particular, novel innovations, the Patent Office today has stretched the definitions of “innovation” and “novel” to the point where they are pushing more than one ethical envelope, according to Seth Shulman in The Sciences (Jan.-Feb. 1999).

Shulman makes a case that the government’s system of intellectual property rights has become simply absurd–granting creator and owner status over unique life forms (whether genetically engineered or, in some cases, simply newly identified), as well as particular colors, fragrances, even sounds. Shulman also argues–with more profound concern–that the system is allowing a dangerous concentration of control over the technological and medical know-how that “make up the lifeblood of the new economy.”

The patent system was created in the 18th century to reward inventors for their industry and ingenuity by offering them a limited monopoly on their creations. They profit from their inventions, and the rest of the world gets to learn from them and build on their efforts. This, our forebears believed, would encourage technological progress and spread the fruits of knowledge.

But in recent years, the scope of patents has expanded in ways that limit progress and restrict the spread of knowledge, says Shulman.

For example, a company that created a genetically engineered variety of cotton recently sought a patent on its product. The company didn’t seek a patent for the variety of cotton it had created (though patenting a type of seed, once unheard of, is now common), nor for the process by which it was created. The patent it sought was for the idea of genetically engineered cotton.

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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