Professor Biagioli was kind enough to dedicate some of his time to the Foundation in the form of a conversation with Jonathan Hankins. Topics covered were varied, but the major theme running through the discussion is responsibility in the patenting process. Many extremely interesting points came up, from how to lessen constraints on scientific research brought about by Intellectual Property and patent enforcement, to possible shifting goals and objectives in University and private research, and how to define and measure the responsibility implied in the taking or granting of a patent.

(…continues from the previous entry)

Patent Terms as Constraints

J.H. Do you think that it would lessen the constraints if the length of patent terms were shortened?

M.B. Certainly, even if you agree that some level of IP is necessary, and I am an agnostic on that. I don’t have demonstrative arguments against it but I don’t have terribly good arguments in favour either. So if you set aside that big question about the general legitimacy of IP and just say OK we have an IP system, would reducing the terms of protection help? I’d say, yes, for sure. I think that a lot of the critics of IP but also a lot of innovators and culture producers would be quite happy if the terms were reduced, especially in the case of copyright where now they can be for over a century, and that seems harsh.

J.H. Well if we look at the things that might have been copyrighted for a century 100 years ago the view-points were different. We might think that it doesn’t make sense to copyright something for a century now, because in 5 years time many things will more that probably be obsolete.

M.B. Definitely, but there’s a lot of resistance to that argument. There has been the Eldred case at the US Supreme Court where Eldred and various legal scholars that supported his case argue that this steady increase in the terms of copyright protection is effectively turning copyright into perpetual property while the Constitution says very clearly that exclusive rights for authors and inventors have to be limited in time. But the Supreme Court didn’t agree with them, so Hollywood, the music industry, and media conglomerates are happy.

To go back to the question of responsibility, in a sense the length of the term of protection is really the core of the cost that IP imposes on the public, and therefore that is where the discussion of responsibility should focus. And switching from copyright to patents, in some industries there is awareness that patent protection could be shorter, because of the pace of technological development, or at least that the length of the term should be industry-specific. So for instance a kind of industry that is very interested in long patent terms and actually would be very happy to have them extended is the pharmaceutical industry. Their argument is that because they need to invest billions to come up with one successful drug they need to go through thousands of potential leads that don’t go anywhere, so the development costs are represented as enormous. Some people question the accounting that generates those figures, but the logic is that you invest so much, and come up, if you are lucky, with one molecule with good therapeutic value. Then they need to recover all their research costs through that single patent, and so they argue that they need all the 20 years that the law gives them and perhaps more.

J.H. Well in many cases they do in effect get more

M.B. Yes there are some creative tricks to extend them. But on the other hand the software industry feels differently and at least some of it claims that patent protection for 20 years is not needed. Very few pieces of software maintain value for 20 years. Also, just one piece of software may entail hundreds of functions, each of which could be potentially patented. So they say they would have to patent a lot of functions which would cost a lot of money and time for a period of protection that would probably last longer than they need. So paradoxically the software industry is not a great friend of patent law, showing that there’s no simple equation between innovation and intellectual property.

The Open Source Model

J.H. Well open source has really grown out of that position hasn’t it?

M.B. Yes, open source, I believe is a real success story, also because it is not just open source and free software. That model now has been taken up by creative commons and initiatives like that, so basically it is a model that can be applied to anything that can be copyrighted. It is no longer just software, it can be music, texts, art, whatever. And so that is a very successful model which in many ways reframes the discussion of responsibility because most people would that say that you are not really imposing any constraints or costs on other producers or on society at large … Well the only constraint that you impose on the users is that you are telling them that if they want to use, say, your text they are free to do so, in most case even commercial uses are allowed, but it has to remain open under the same conditions that they have taken it from you, In a sense the person who puts a work out under creative commons, free software or open source license puts constraints on the users, but they are constraints about keeping the work open, so most people would say that actually that is really not a constraint at all. Nobody’s property rights are violated, and nobody forces you to use anything you don’t want to use.

I think that the success of the open source model is something that has taken people by surprise. I don’t think that even 10 years ago people would have imagined that it would have spread so fast and wide. One of the great limitations of the model, though, is that it really does not work for patented inventions. It works OK with tangible property – think about the privately supported land banks and nature reserves you see in the US – but only as a preservation tool. Instead when you use it in copyright-based creative practices the free software model preserves the public domain and allows for the development of more culture at the same time. Pretty neat.

The constraints that patents and tangible property pose to knowledge and cultural production are tougher to work around. Take for example the large empirical study that was done by Wesley Cohen, Ashish Arora and others based on interviews with hundreds of scientists, asking them if they had encountered constraints in their work as the results of patents. In the past there used to be a doctrine called ‘research exemption’, something like the equivalent of fair use for patents. Certain unlicensed uses of patented inventions were considered legal if they were done for noncommercial research. So if you were an academic scientist you could copy a patented invention just for your own research purposes. This came to an end, however, because while universities continue to be not for profit, they do a lot of their research in collaboration with or for the private sector, so if a scientist copies an invention for their research it is possible that that research might be commercially motivated or may end up producing commercially valuable results. That has eroded the justification for the research exemption.

So Wes Cohen and his collaborators studied the impact of this, and the picture is quite interesting. A number of scientists did report constraints posed by patents and that in a few cases they had to drop their research projects altogether because they could not get the appropriate licenses to use patented inventions, but this happened less frequently than people expected. The reason, however, was not that patents were not that constraining, but that a lot of scientists reported that they just didn’t care! They just go ahead and infringe and say, well if you want to sue me go ahead! The other surprising result of their study was that a lot of scientist who dropped their research projects did so not because of patent constraints but because they could not convince a colleague to share a reagent or cell line. The problem was their inability to get certain very specific things, not intellectual property licenses. If the scientist said no, the scientist who was doing the asking would have great difficulty in reproducing that thing, otherwise she would not have asked. So if I ask you to license your patent to me for free, and you say no, I have the option of infringing and then see if you sue me. If instead I say I need your unique cell line and you say no, I’m stuck.

So while IP is often presented as a constraint to academic research because it produces what Eisenberg and Heller call “anticommons,” good old tangible property may be as much of a problem. Unfortunately neither problem can easily solved through the creative commons or open source model based on copyright because of the much higher costs involved. It is cheap to register copyright but expensive to obtain and maintain patents, which makes it very, very difficult to develop a patent commons. (You may have heard of patent pools, but they are a very different thing). And even assuming that scientists would be willing to share their most prized reagents and cell lines, setting up a physical publicly accessible depository for such things would be neither cheap nor simple.

I’m not saying it’s impossible, though. Foundations could play a key role in this. Think about the OpenCourseWare Project at MIT where they make their syllabi of all their courses open, including the readings. The initial phase was funded not by MIT itself but the Hewlett and Mellon foundations, and the programs still continues with donations from private corporations and foundations. I don’t know whether, along the same lines, the private sector and the philanthropic world could jump in to key technologies and create this open patent commons. Anyway I am just thinking aloud, I don’t know whether it would be feasible or sustainable. It would probably depend on how big a patent commons it would have to be to make a difference in that specific field, or whether it could be set up quickly before the private sector comes in and starts taking out key patents, leaving only the spoils for a possible patent commons.

I have digressed a bit but now at least we have a better sense of the many different ways in which one can talk about responsibility in IP. We may be able to conceptualize what responsibility means in IP through Boyle’s environmental metaphors, but I think that the metrics for assessing that responsibility would have to be mostly developed by thinking about IP as a temporal, rather than a purely spatial-environmental set of practices. That would be very complicated, but also extremely timely and relevant. I cannot think of a lot of contributions within the range of scholars and intellectuals more relevant than a framework for responsibility in the knowledge economy.

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