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.

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The Problem of Responsibility

J.H. The Bassetti Foundation has been debating the problem of responsibility within innovation for more than 10 years, long debates about how responsibility can be ascribed to individuals, to technology. Can you ascribe responsibility to technology itself? I would say not. To whom then? The researcher, to the person who builds it? To the politician who raises the money and pays for someone to do it? It is an endless question, what is responsibility and who takes that responsibility?

M.B. Certainly who or what is responsible for what and to whom and is a big question, and now that STS has rediscovered the material agency of things, it is possible to think about things having responsibility in ways that go beyond old technological determinism. As far as I can tell that has not yet happened, though. A lot of STS literature is happy to talk about the agency of things, the contribution of nonhuman agents to the construction of certain assemblages, but not so much about the kind of responsibility that goes with that agency. I can’t come up, on the spot, with an explanation for that. But if by responsibility in innovation you mean the responsibility for turning innovation into a legal object and a bundle of property rights – the kind of thing you do when you patent an invention – then I think that the question of how you assess or perhaps quantify responsibility is more urgent that determining the location of that responsibility. Think about an insurance scheme, you pay X amount of money and the insurance company will cover you for certain things up to a certain amount of money. The riskier the things you do, the higher your premium will be. The premium you pay and the coverage you get are indexes of how responsible or irresponsible you are and what responsibility the insurance companies assumes toward you. But if you come up with a scientific discovery or invention and you patent it, what is the social cost of your action? You can quantify how valuable that patent was to you by looking at the revenue from its use and licensing over the period that you held that patent, but not what that patent’s cost to society was – the social costs of preventing other people from using and producing more innovations from it. We don’t have actuarial tables for that. That is an extremely complicated question but I think a fundamental one if we want to develop a policy about responsibility in IP. Again just thinking aloud, time would have to be a big factor in that assessment, the length of the term of protection, but also how upstream or downstream that invention is located within the stream of innovation so as to assess how much innovation was precluded by the protection of the invention over the life of the patent.

Suppose that you come up with a unique instrument that is just for you to measure something only you want to measure. Well, even if you patent it you are not going to exclude a lot of people because your invention is extremely specialized. But suppose you come up with a new instrument that could be of use to a variety of scientific disciplines, then the social cost of the patent would be much higher. But I would not be surprised if that question could be answered only a posteriori and, even then, only partially. We don’t know what developments a certain patent would preclude at the time it was patented because that would be like predicting the future. All we can do (and it’s not clear we can do that well either) is to assess post facto, working like historians, which innovations were indeed foreclosed by the presence of that given patent. If we can come up with some assessment of responsibility, it would most likely be of past responsibility – of the effects that a patent had, not the responsibility it will have. Innovation is emergent which means that you cannot have a notion of ethics or responsibility based on first principles because things change all the time, and in ways that are inherently unpredictable. That’s what I think I was trying to convey earlier when I was saying that it will be extremely difficult to develop a framework for responsibility in IP. In a strict sense, that task is impossible rather than simply difficult. We can’t assess responsibility a priori. At the same time, we can probably map out the contours of such a framework, and use it to make local, time-specific assessments. It is an interesting question and I thank you for bringing it up. I hadn’t realized that in intellectual property we now have a vocabulary to talk about responsibility, but there isn’t much of a discussion about exactly what authors and inventors should be responsible for, and that is a very interesting question, which of course I cannot answer…(laughter)

The patent as a scientific goal

J.H. Well we are not really here for answers are we? I have a rather critical question for you, would you agree that in certain circles the goal of science has become the patent? This question refers amongst other things to a book that I recently reviewed on the website, Deadly Monopolies by Harriet Washington, not about science in general in this case but medicine, and it feeds back into what you said before about patents being so long.

M.B. I am not a friend of the pharmaceutical industry and find their lobbying for even stronger patent protection problematic. That said, there is a point to be made about the fact that secrecy can be as deleterious as commercial monopoly. There is a huge amount of scientific research carried out in the private sector and some of it (maybe much of it, we don’t know) is not patented but kept as trade secrets. People who believe that academic science should be in the service of the public interest complain that more and more knowledge is being privatized through patents, but people who like the patent system will tell you that patents serve the public because they amount to publications, as opposed to trade secrets that are never disclosed. This is of course a self-serving argument, but it follows a certain logic.

Companies and individuals are entitled to keep their technoscientific knowledge secret, and they often do. But patents will at least provide the public with a disclosure of the invention as part of the application process. 20 years later the patent goes back into the public domain, but even before that you can read its description and use it for your own innovations, provided they are significantly different. Pro patent people would even say that patenting spurs innovation by telling you what you need to invent around. Patents should be seen as publications with a delayed effect so to speak. That is the discourse of patent supporters but it is also the original logic of patent law based on an exchange between the inventor and the public. The public through elected officials and the government, grants the inventor the patent, but in exchange the inventor has to communicate the knowledge of the invention to the public. In sum, patents can be seen as tools for commercial monopoly, but not for secrecy. They don’t let you copy the invention, but they tell you what it is about. They are not normal scientific publications, but they are some kind of publications nevertheless. So in this sense the opposition between science and patenting is not absolutely sharp

But to go back to your question, yes in some cases patenting is or is becoming a main goal of scientific research. Things are particularly complicated in the context of the university where until a few decades ago patents were seen as inappropriate to the general mission of the institution. In the past (at least in the US) a lot of the research universities would pass their patents to a consortium. They wouldn’t even handle them.

But now, because of the crisis of public funding of the public universities such as we see in California, administrators make the argument that the university needs to patent to generate revenue to make up for the money the state does not provide anymore (and perhaps will never provide again). So paradoxically there is almost this Thatcherite push toward privatization and enhanced patenting efforts by the public universities, but it is done in the name of saving the public university. It is a paradoxical and perhaps perverse situation in which we need to patent and privatize knowledge to hopefully save the public universities and its mission of public service. That’s a tough argument for me. I see the problem, I see the very few options available to public research institutions to save themselves but, to go back to your question about responsibility, I am not sure these policies are anchored on the right notion or long-term view of responsibility.

Suppose I put the Thatcherite hat on, I would say, well, is this a good business model? Is the university really generating a lot of money by patenting? Is the revenue we generate offsetting the constraints we are producing for present and future scientists in terms of delayed or curtailed publications, or the costs and delays associated with the licensing process some scientists may have to go through in order to use some of these patents for their research? The only responsible way to answer this question is not by making assumptions either way but to look at the evidence, which is ambiguous at the present time, but may become clearer in the future when the effects of more patenting will be better recognizable. But the first part of the question can be answered now as most universities are really not making a lot of money from patents.

There are a handful of cases where universities make serious money in royalties and licensing fees but most of the time they don’t. So the question is if you are not going to make a lot of money is it worth it? Or are you just basically creating constraints to future scientists for little financial reward in the present? It’s a bit like a problem of intergenerational equity. If the university takes a fully presentist perspective, it may make sense to patent aggressively and get whatever royalties they can, however limited they may be. Maximize short-term revenue because you need to balance this year’s budget. But if they think long term, to the generations of academic scientists and graduate students who will become scientists down the line and who will have to negotiate increasingly complex patent thickets resulting from the collective efforts of all universities to patent all their more or less promising inventions, or to put less knowledge out in the public domain due to the proprietary arrangements they have made with the private sector, then different strategies may be more reasonable. Companies come and go, emerge, collapse, or are sold, and their patent portfolios go where their stock goes. But universities have a tendency to stick around for centuries, not quarters.

So even thinking just in economic terms do these patent policies make sense or are they a seriously sub-optimal arrangement that is going to foreclose a lot of future research and innovation? I keep finding myself going back to the question of whether one could reliably assess this kind of responsibility toward future scientists, students, and citizens. I agree with James Tobin that “the trustees of endowed institutions are the guardians of the future against the claims of the present,” but in the case of IP policies responsible to future generations. I don’t know what kind of tools those trustees could use to get their job done right.

J.H. Sounds like a perfect conclusion to me, thanks very much.

The Bassetti Foundation would like to thank Professor Biagioli for his time in giving this interview and it subsequent revisions and wish him well in his work as Director of the new Center for Innovation Studies at University of California, Davis.

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