Societal views on patents

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Legal scholars, economists, activists, policymakers, industries, and trade organizations have held differing views on patents and engaged in contentious debates on the subject. Critical perspectives emerged in the nineteenth century, and recent debates have discussed the merits and faults of software patents and biological patents.

These debates are part of a larger discourse on intellectual property protection which also reflects differing perspectives on copyright.

History[edit]

Criticism of patents reached an early peak in Victorian Britain between 1850 and 1880, in a campaign against patenting that expanded to target copyright too and, in the judgment of historian Adrian Johns, "remains to this day the strongest [campaign] ever undertaken against intellectual property", coming close to abolishing patents.[1] Its most prominent activists - Isambard Kingdom Brunel, William Robert Grove, William Armstrong and Robert A. MacFie - were inventors and entrepreneurs, and it was also supported by radical laissez-faire economists (The Economist published anti-patent views), law scholars, scientists (who were concerned that patents were obstructing research) and manufacturers.[2] Johns summarizes some of their main arguments as follows:[3]

[Patents] projected an artificial idol of the single inventor, radically denigrated the role of the intellectual commons, and blocked a path to this commons for other citizens — citizens who were all, on this account, potential inventors too. [...] Patentees were the equivalent of squatters on public land — or better, of uncouth market traders who planted their barrows in the middle of the highway and barred the way of the people.

Similar debates took place during that time in other European countries such as France, Prussia, Switzerland and the Netherlands (but not in the USA).[4]

Based on the criticism of patents as state-granted monopolies inconsistent with free trade, the Netherlands abolished patents in 1869 (having established them in 1817), and did not reintroduce them until 1912.[5] In Switzerland, criticism of patents delayed the introduction of patent laws until 1907.[4][5]

Patents and Tragedy of Anticommons[edit]

A theoretical problem with patent rights was discussed by law professors Michael Heller and Rebecca Sue Eisenberg. Based on Heller's theory of the tragedy of the anticommons, the authors, while not disputing role of patents in general in motivating invention and disclosure, argue that biomedical research was one of several key areas where intellectual property rights may become so fragmented that, effectively, no one can take advantage of them as to do so would require an agreement between the owners of all of the fragments. On the other hand, authors weren't sure if the problem they predict, is persistent or transitional (in the latter case, holders of intellectual property rights will find ways to address the problem when it arises, for example, via patent pools). [6] David Levine and J.M. Pierce have expressed the opinion that[7][8] that patents retard technical progress and innovation.[9]

Some public campaigns for improving access to medicines and genetically modified food have expressed a concern for "preventing the over-reach" of IP protection including patent protection, and "to retain a public balance in property rights".[10][11] Some economists[7] and scientists[12] and law professors[13] have raised concerns that patents retard technical progress and innovation. Others claim that patents have had no effect on research, based on surveys of scientists.[14][15]

Patent trolls[edit]

Patents have also been criticized for being granted on already-known inventions, with some complaining in the United States that the USPTO fails "to do a serious job of examining patents, thus allowing bad patents to slip through the system."[16] On the other hand, some argue that because of low number of patents going into litigation, increasing quality of patents at patent prosecution stage increases overall legal costs associated with patents, and that current USPTO policy is a reasonable compromise between full trial on examination stage on one hand, and pure registration without examination, on the other hand.[16]

Enforcement of patents – especially patents perceived as being overly broad – by patent trolls, has brought criticism of the patent system,[17][18] though some commentators suggest that patent trolls are not bad for the patent system at all but instead realign market participant incentives, make patents more liquid, and clear the patent market.[19]

Pharmaceutical patents[edit]

Some have raised ethical objections specifically with respect to pharmaceutical patents and the high prices for medication that they enable their proprietors to charge, which poor people in the developed world, and developing world, cannot afford.[20][21] Critics also question the rationale that exclusive patent rights and the resulting high prices are required for pharmaceutical companies to recoup the large investments needed for research and development.[20] One study concluded that marketing expenditures for new drugs often doubled the amount that was allocated for research and development.[22] Other critics claim that patents reward and abet misplaced pharmaceutical R&D priorities, which they describe as being directed to creating incremental improved treatments for diseases prevalent in wealthy countries and away from diseases that cause devastation in the developing world.[23]

In 2003, World Trade Organization (WTO) reached an agreement, which provides a developing country with options for obtaining needed medications under compulsory licensing or importation of cheaper versions of the drugs, even before patent expiration.[24]

In 2007 the government of Brazil declared Merck's efavirenz anti-retroviral drug a "public interest" medicine, and challenged Merck to negotiate lower prices with the government or have Brazil strip the patent by issuing a compulsory license.[25][26][27]

It is reported that Ghana, Tanzania, the Democratic Republic of Congo and Ethiopia have similar plans to produce generic antiviral drugs. Western pharmaceutical companies initially responded with legal challenges, but some have now promised to introduce alternative pricing structures for developing countries and NGOs.[26][27]

In July 2008 Nobel Prize-winning scientist Sir John Sulston called for an international biomedical treaty to clear up issues over patents.[28]

In response to these criticisms, one review concluded that less than 5 percent of medicines on the World Health Organization's list of essential drugs are under patent.[29] Also, the pharmaceutical industry has contributed US$2 billion for healthcare in developing countries, providing HIV/AIDS drugs at lower cost or even free of charge in certain countries, and has used differential pricing and parallel imports to provide medication to the poor.[29] Other groups are investigating how social inclusion and equitable distribution of research and development findings can be obtained within the existing intellectual property framework, although these efforts have received less exposure.[29]

Quoting a World Health Organisation report, Trevor Jones (director of research and development at the Wellcome Foundation, as of 2006) argued in 2006 that patent monopolies do not create monopoly pricing. He argued that the companies given monopolies "set prices largely on the willingness/ability to pay, also taking into account the country, disease and regulation" instead of receiving competition from legalized generics.[26]

Litigation costs[edit]

According to James Bessen, the costs of patent litigation exceed their investment value in all industries except chemistry and pharmaceuticals. For example, in the software industry, litigation costs are twice the investment value.[30] Bessen and Meurer also note that software and business model litigation accounts for a disproportionate share (almost 40 percent) of patent litigation cost, and the poor performance of the patent system negatively affects these industries. [31]

Pseudoscientific patents[edit]

Some patents granted in Russia have been denounced as pseudoscientific (for example, health-related patents using lunar phase or religious icons).[32][33][34]

Proposed alternatives to the patent system[edit]

Alternatives have been discussed to address the issue of financial incentivization to replace patents. Mostly, they are related to some form of direct or indirect government funding. One example is the idea of providing "prize money" (from a "prize fund" sponsored by the government) as a substitute for the lost profits associated with abstaining from the monopoly given by a patent.[35] Another approach is to remove the issue of financing development from the private sphere altogether, and to cover the costs with direct government funding.[36]

See also[edit]

References[edit]

  1. ^ Johns, Adrian: Piracy. The Intellectual Property Wars from Gutenberg to Gates. The University of Chicago Press, 2009, ISBN 978-0-226-40118-8, p.247
  2. ^ Johns, Adrian: Piracy, p. 249, 267, 270
  3. ^ Johns, Adrian: Piracy, p. 273, citing W.R. Grove: Suggestions for Improvements in the Administration of the Patent Law, The Jurist n.s. 6 (January 28, 1860) 19-25 (online copy at Google Books), and B. Sherman, L. Bently: The Making of Modern Intellectual Property Law (CUP 1999), 50-56
  4. ^ a b Johns, Adrian: Piracy, p. 248
  5. ^ a b Chang, Ha-Joon. "Kicking Away the Ladder: How the Economic and Intellectual Histories of Capitalism Have Been Re-Written to Justify Neo-Liberal Capitalism". Post-Autistic Economics Review. 4 September 2002: Issue 15, Article 3. Retrieved on 8 October 2008.
  6. ^ Heller, Michael; Eisenberg, Sue (May 1, 1998). "Can Patents Deter Innovation? The Anticommons in Biomedical Research". Science 280 (5364): 698–701. doi:10.1126/science.280.5364.698. PMID 9563938. 
  7. ^ a b Levine, David; Michele Boldrin (2008-09-07). Against intellectual monopoly. Cambridge University Press. ISBN 978-0-521-87928-6. 
  8. ^ J. M. Pearce, Make nanotechnology research open-source, Nature 491, pp. 519–521(2012). DOI: 10.1038/491519a
  9. ^ Joshua M. Pearce, Open-source nanotechnology: Solutions to a modern intellectual property tragedy,Nano Today, Volume 8, Issue 4, August 2013, Pages 339–341. DOI http://dx.doi.org/10.1016/j.nantod.2013.04.001 open access
  10. ^ Susan K Sell (2003), Private Power, Public Law: The Globalization of Intellectual Property Rights, Cambridge, 2003 Cambridge University Press: Cambridge Studies in International Relations: 88; quoted from page 179, see also page 5.
  11. ^ Dutfield, Graham (2003). Intellectual Property Rights and the Life Science Industries: A Twentieth Century History. ISBN 9780754621119. 
  12. ^ J. M. Pearce, Make nanotechnology research open-source, Nature 491, pp. 519–521(2012). DOI: 10.1038/491519a
  13. ^ http://journals.lww.com/academicmedicine/fulltext/2002/12001/why_the_gene_patenting_controversy_persists.9.aspx
  14. ^ http://www.thehastingscenter.org/Publications/BriefingBook/Detail.aspx?id=2174
  15. ^ Science Progress Blog
  16. ^ a b Lemley, Mark A., Rational Ignorance at the Patent Office (February 2001). Northwestern University Law Review, Vol. 95, No. 4, 2001. doi:10.2139/ssrn.261400
  17. ^ Barker, David G. (2005). "Troll or no Troll? Policing Patent Usage with an Open Post-grant Review". Duke Law & Technology Review 9 (11). Retrieved 9 June 2013. 
  18. ^ Blumberg, Alex; Sydell, Laura (May 31, 2013). "When Patents Attack... Part Two!". This American Life (Podcast). Chicago Public Media. Retrieved June 9, 2013. 
  19. ^ James F. McDonough III (2006) The Myth of the Patent Troll accessed 2010-01-17
  20. ^ a b Banta D.H. (2001) Worldwide Interest in Global Access to Drugs Journal of the American Medical Association 285 (22): 2844–46
  21. ^ Ferreira L. (2002) Access to Affordable HIV/AIDS Drugs: The Human Rights Obligations of Multinational Pharmaceutical Corporations Fordham Law Review 71(3):1133–79
  22. ^ Barton J.H. and Emanuel, E.J. (2005) The Patents-Based Pharmaceutical Development Process: Rationale, Problems and Potential Reforms Journal of the American Medical Association 294(16): 2075–82
  23. ^ Schaaber, Jörg (2010/11). "Misguided research". inwent.org. Retrieved 29 November 2010. 
  24. ^ Decision removes final patent obstacle to cheap drug imports
  25. ^ "Drugs give HIV patients longer lives in victory for anti-patent activists". Health & Medicine Week. August 2004. 
  26. ^ a b c Anderson, Tatum (June 2006). "Africa rises to HIV drug challenge". BBC News. 
  27. ^ a b "Brazil’s HIV-drug break down". gay.com. May 2007. 
  28. ^ McGrath, Matt (July 2008). "Sulston argues for openmedicine". BBC News. 
  29. ^ a b c Ghafele R (2008) Perceptions of Intellectual Property: A Review London: Intellectual Property Institute
  30. ^ Bessen, James, 2008. "The value of U.S. patents by owner and patent characteristics," Research Policy, Elsevier, vol. 37(5), pages 932-945, June.
  31. ^ Bessen, James, and Michael J. Meurer. Patent Failure: How Judges, Bureaucrats, and Lawyers Put Innovators at Risk. Princeton, NJ: Princeton University Press, 2008.
  32. ^ Илья Смирнов (Ilya Smirnov) (2007-03-30). "Бюллетень комиссии по борьбе с лженаукой. Ученые защищаются и атакуют". Radio Free Europe/Radio Liberty. Archived from the original on 2011-08-27. Retrieved 2008-11-05. 
  33. ^ Ю.Н.Ефремов, Р.Ф.Полищук. "Государство и лженаука". Наука и жизнь (Nauka i Zhizn). Archived from the original on 2011-08-27. Retrieved 2008-11-05. 
  34. ^ Э. Кругляков (2007-01-18). "Лженаука — путь в средневековье". Наука в Сибири N 3 (2588). Archived from the original on 2011-08-27. Retrieved 2008-11-05. 
  35. ^ Stiglitz, Joseph. Project Syndicate, 2007. project-syndicate.org
  36. ^ Baker, Dean. "The Reform of Intellectual Property". post-autistic economics review, issue no. 32, 5 July 2005, article 1, Paecon.net