John Havelock: Generosity with patents is now a thing of the past

commentJune 28, 2013 

The US Supreme Court recently ruled that a patent may not be issued for a DNA sequence that appears in nature. Put another way, a "discovery" is not patentable but "any invention" is. "Any" is an awfully inclusive word. As to DNA, never fear, patent lawyers are near. There are ways to tie an "invention" to a "discovery" that can reestablish patent protection for the work of the pharmaceutical industry.

Much of the medical community has hailed the court's ruling for the millions of dollars that will be saved, not to mention the lives that can now get the benefit of a genetic analysis not previously available to many lower income patients. This justifiable cheering should give us pause about the whole field of patent protection, with a nod also to protection of intellectual property.

The Supreme Court case and its consequences serve as a reminder that our economic lives are governed not by a pure free enterprise system but one in which this freedom is overlaid by a comprehensive network of governmentally protected monopolies, fortifying the natural monopolies that inevitably arise under capitalism.

Patent protection is older than the American Constitution. With little discussion, the delegates gave Congress the power "to promote the progress of science" by giving inventors the exclusive right "for a Limited time" to their discoveries. The idea that an inventor of something arguably useful to mankind should be given protection sufficient to justify the investment of his time appeals to everyday common sense as it did to the delegates in Philadelphia.

The problem with patents is that no countervailing interest group exists to argue for the public interest in free use and transmission of inventive ideas. Consequently, the use and duration of patents has expanded, well beyond the contemplation of the constitutional delegates, to assume their dominant role in the contemporary economy. There is no one there to ask, "Won't five years, rather than seventeen, serve perfectly well? Are there not some categories of invention for which a five year monopoly is a sufficient reward? For some categories, isn't the public better served by just giving copycats their day?"

As the DNA example illustrates, there is much to be said for letting ideas enter the public domain early.

Dr. Jonas Salk and his allies in medical research released their patent right to the vaccine for polio, eschewing the personal profit that would have made each of them a billionaire, for the public good.

Dr. Salk's historic act of generosity is now very much the exception. The rule now is to secure patent rights early and quickly, building patent upon patent to lock up areas of useful invention, suing potential interlopers.

At an earlier time of recession in the early 20th century, a time of much economic suffering, government toleration of monopolies was reversed by aggressive public hostility. The Sherman Antitrust Act and later congressional enactments prohibiting unfair competition became the law of the land.

For the following half century or more, starting with the breakup of the Standard Oil Co., moving on decades later to the division of AT&T, the federal government acted firmly and regularly to split up monopolies and punish those engaging in unfair monopolistic practices. You don't hear much about that now, do you? As the late conservative intellectual Daniel Bell pointed out in his book "The Cultural Contradictions of Capitalism," to win in a competitive economy is to out-compete until a full monopoly has been established.

How much of our economy now is controlled by just a few giant corporations, prepared to merge or acquire to eliminate competition that cannot be destroyed by efficiencies of scale? Overreaching patent and copyright laws reduce the free enterprise competition we hail as the backbone of capitalist democracy.

The Supreme Court just gave us one small victory in its recent case, but don't count on the Supreme Court to block the overall trend to private central control of the economy, with that trend's ultimate implications for the rest of our lives.


John Havelock is a former Alaska attorney general. He lives in Anchorage.

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