“What is and is not patentable is not about morality; how and when rights are enforced and under what circumstances is when morality comes into play.”
Whenever a national emergency sweeps through, the question of patents is tangentially swiped at in the context of whether any patents will have to be “broken”, or compulsory government licensing regime initiated, to eliminate any roadblocks to a national or global solution. And, just for good measure, another rock or two is hurled at “patents” using the common epithets: monopolistic, greed of patent holders, profiteers, etc. None of it is true; but that doesn’t stop those who are anti-patent from trying. It happens every time: Anthrax/Cipro; HIV/antiretrovirals (43 different FDA approved drugs by 2017, BTW); etc.
Patenting is in the Public Interest
When I was a relative newcomer to the patent realm, I did not understand any of this sentiment. Chakrabarty (the Supreme Court case that literally created, from nothing, the life sciences industry) had recently been decided and I found myself at an AIPPI event. It was, and is, great fun to attend these events and chat and gain perspective from colleagues around the world. When I indicated I was American, a few foreign colleagues joked, “….ah yes, those patent barbarians.” Life was now patentable, was nothing sacred to us, was nothing off the table, did we Americans want to play God and patent his handiwork at the same time? I was amused, but unprepared with any response inasmuch as I did not see patents as having any moral dimension. What is and is not patentable is not about morality; how and when rights are enforced and under what circumstances is when morality comes into play. Patenting it—the first step—is outside the realm of morality and very much in the public interest. Across the board. Always has been.
You see, the patent system does two, and only two, things. One, it creates an incentive for those who would otherwise keep to themselves, i.e., the “wheel”, for only their exclusive use/profit, to share with the public. Two, by virtue of that disclosure, we benefit by not having to re-create the “wheel” and can instead improve the “wheel” and/or put it to good use (i.e., build a pyramid) going forward. In step two, we pay as necessary and as warranted for the use of the “wheel”. I use “wheel” as a reference to any solved unknown. Both the inventor and society benefit. This was and remains the reasonable conclusion of the fundamental discussion between Jefferson and Madison as to whether a patent system should exist in these United States. Jefferson being persuaded that useful ideas would not just spontaneously appear in the public realm without an incentive; and Madison, relying on the ambition of those with the ideas, then located primarily outside the United States, to bring them to the United States, where they could be protected and commercially exploited. Everyone, including the country at-large, becomes a winner; at no cost!
Almost Everything Useful is Patented
Yet, somehow, we get to emergency situations and the otherwise terrific system of balanced incentive and reward is cast as broken. Well, it isn’t. All of the technology that is being used to diagnose and treat and track and communicate and collate and assess and avoid is or was patented. In the United States you cannot, literally, get out of bed without bumping into patented stuff, beginning with the pillow you lift your head from. Just can’t happen. Get used to it. Almost all present medications/medical devices were, at some point, patented creations. And, indeed, some of the most effective medicines in our present circumstance are generic, cheap, and widely available by virtue of now being “off-patent”. Where would our present exigent “solutions” be but for the creative forces unleashed by the patent system to beget now generic “off-the-shelf” resources? Well, let’s just say that folks are not rushing to places where innovation is dormant seeking solutions to the present crisis.
Reinvigorate and Reinforce
In our crass, consumer, greedy capitalist cabal, if you want more of something, you simply pay a little more. No one forces the issue. But this simple act tells those awful innovative profiteers to do more. Note how the price of oil (aside from the recent collapse) and nothing more, had created incentive to go get more of it, at no cost to us. In fact, the costs to us have fallen. This simple incentive-driven phenomenon is true across the board. You may say our medical system costs more, but look what we get. We get more. A lot more. The same is true in telephony, IT, air travel, computing generally, software, food production, etc. And, the same is true for national/global emergencies. Provide incentive, through a patent system of limited rights (scope and time), and you’ll have all the solutions you need, just like in literally every other technology driven topic there is. Now is the time to save the patent system, to reinvigorate and reinforce protection(s), to save us all, in the future that is yet unknown and unknowable, but is coming anyway. Ready or not. The only immorality here is not recognizing the contribution the patent system has already made to solving our present circumstance.
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