Tina K. Russell

September 9, 2008

Proprietary science is patently absurd

Filed under: Uncategorized — Tags: , , , , , , — Tina Russell @ 10:18 pm

(I also wanted to call this post, “Putting drug companies on the Dole? I don’t Bayh it!”)

Unboxed – When Academia Puts Profit Ahead of Wonder – NYTimes.com
In the past, discovery for its own sake provided academic motivation, but today’s universities function more like corporate research laboratories. Rather than freely sharing techniques and results, researchers increasingly keep new findings under wraps to maintain a competitive edge. What used to be peer-reviewed is now proprietary. “Share and share alike” has devolved into “every laboratory for itself.”

In trying to power the innovation economy, we have turned America’s universities into cutthroat business competitors, zealously guarding the very innovations we so desperately want behind a hopelessly tangled web of patents and royalty licenses.

The Bayh-Dole Act of 1980 is one of my least-favorite pieces of legislation ever for this reason. Once upon a time, the results of federally financed research were public domain, since after all, we paid for them! Of course, two Senators got it into their heads that this was a problem, that America can succeed as a country only if we devolve into everyone-for-themselves, Lord of the Flies melee combat. Now universities are in a rush to patent their findings (as though basic knowledge of the universe could be patented) and license them exclusively to drug companies that can take advantage of a sick and desperate audience and bilk us for all we’re worth. (The “cost of innovation” excuse is nonsense, as anyone who knows about price elasticity of demand is aware.)

Please read the article! It tackles the research rather than the public health side, but it’s a blow-by-blow account of the mess we’re in. Over in the software world, we’ve slowly learned that sharing information and then competing on merit—that is to say, standing on the shoulders of giants, who are themselves standing on the shoulders of other giants—produces better software than locking up our code and having to reinvent the wheel each and every time we make a new application (and even then not being able to release it without a maelstrom of C&Ds from opportunistic patent trolls). In science, sadly, we run a risk of slipping steadily back from this realization, from Jonas Salk’s bemused reaction of “there’s no patent… could you patent the sun?”, and into a world in which we compete not for titles or reputations but for cold, hard cash, and are willing to let the scientific world splinter into a thousand pieces and let innovation grind to a halt for that worship of money.

I like intellectual property, I like copyright, I like the idea that you have control over the things you create. I want people who write books and make movies and report the news and create astonishing inventions and build the latest videogame to be able to make lots of money from what they do. However, when a university is receiving public money, they ought to be willing to give back to the people that gave them the opportunity, and we ought to attach those strings to the money we give.

More important than any of that though is the simple fact that—as we’ve learned in software—a mad rush to patent everything “under the sun, made by man” does not promote innovation but rather grinds it to a halt. Innovation, by and large, is not a college student with a billion-dollar idea; it’s many, many bright people slowly building on an idea until it becomes robust and unstoppable. An angel coming down from the heavens with the concept for your next patent application is rare, and those “aha!” moments can only come from the long hours of drudgery, the thankless work of intellectual labor, the ninety-nine percent perspiration whose inspirational component makes it all worth it. When you cannot build on others’ ideas, when the giants are wearing massive, spiked shoulder-pads of IP to prevent you from standing on their shoulders, you must repeat every act of this intellectual drudgery that anyone before you has ever completed before. Oh, and if you work for an institution with such a strong-IP bent, and you leave or are fired or laid off, guess what? Work-for-hire just means you lost your life’s work. Sucks to be you.

What’s more, the article goes on to discuss how these patents, for the massive intellectual gold rush going into them, for the university legal departments sprouting up like mini-malls and the armies of men in lab coats hiring brokers, are mostly not even profitable! The money that goes into the sheer legal paperwork and hoop-jumping of the patent mess—not to mention enforcing your patent in costly lawsuits—is more money than you can ever hope to get from Fig. B. This doesn’t even begin to describe the massive deadweight loss to society when universities quit cooperating and attempt to establish their own scientific fiefdoms, their own legal terrariums, sheltering their research from the outside world, forcing institutions of science to go it alone and duplicate every lab-room slough that anyone has ever endured if they ever want to make any kind of discovery.

This is something that’s crushing to me not only because I have ADD and the patent on my medication does not run out until 2018 because somebody decided that you could patent the very concept of a generic medicine with an immediate- and extended-release mechanism (not such a mechanism, but the basic idea of one!), and the courts and the patent office have rolled over like doting puppies. It’s not crushing to me just because of the rising costs of healthcare across America are explained not only by very real and impressive technological and medical advances but also because of an elaborate scheme of publicly-funded extortion of sick people unknowingly set up by our government and paid for by taxpayers (twice!). It’s crushing to me because I love science, and science can’t happen if no one is able to stand on the shoulders of giants because the giants have taken out patents on their shoulders and they won’t be public domain for twenty years, at which point they’ll be changed slightly solely for the sake of a new shoulder-patent.

Today’s science patent scheme was supposed to create innovation by allowing scientific institutions to have twenty-year monopolies on their discoveries. It works great for books or movies (unless Disney can buy enough Congressmen to keep America’s cultural heritage under copyright forever), and it’s great for specific inventions that are reasonably clever and nonobvious. For science, however, excessive patenting means that innovation happens in a glacial, twenty-year cycle. I can’t think of a good way to get the public riled up about this, but we must. Don’t pay for your medicine at both ends. Lets restore trust in our doctors and scientists and kick out the plague of greed from our institution of science.

America’s economy of innovation depends on it. Public funding should mean public domain.

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