Scientists Feel That Patents Cause Significant Harm To Research
from the anyone-other-than-lawyers-and-monopolists-like-these-things? dept
In the last few years, as more and more problems with the patent system have come out, we’ve seen some defenders of the patent system try to categorize and compartmentalize the problems. They’ll say things like “well, maybe patents cause some problems with software” but they’re important elsewhere. The problem is that in pretty much every area they claim patents “work” for, the actual evidence suggests otherwise. For example, there’s been a belief among many that patents are hugely important to scientists. A few years back, we saw that this wasn’t necessarily true, with many scientists complaining about the damage done by patents — especially when it came to collaborating and sharing ideas — a key and important element of creating useful and compelling research.
Michael Geist points us to a recent survey of scientists who say that IP protection has a negative impact on their research. It’s greatly slowed down the ability to do research, as universities (thanks to the dreadful and damaging Bayh-Dole Act — which has significantly hurt progress in scientific research) are trying to hoard anything that can be patented for the sake of profit, rather than scientific advancement. Of course, advancement doesn’t work that way. It works through collaboration and sharing ideas — and what patents do is add a huge bureaucracy to the process, encouraging secrecy, not sharing and hoarding, not collaboration. Once again, we’re seeing that about the only folks who really truly benefit from patents are the lawyers.
Filed Under: bayh-dole, patents, scientists
Comments on “Scientists Feel That Patents Cause Significant Harm To Research”
Did I read the same article as you? It seems to me you are taking some liberty by expanding a highly compartmentalized survey into a one of somewhat universal applicability.
Per my reading of the survey, it is the practice of using MTAs by universities that is having a somewhat limiting effect, and not the patent regime itself.
If anything, this is an article that may give pause to consider the presumptions underlying university activities under Bayh-Dole…a point about which I have previously expressed concern that some universities are viewing research results as a “cash cow”, and not as educational tools.
In all of years of dealing quite closely with scientists performing basic research, not once have I heard any of them decry that patents were stifling their research. To the contrary, not one has ever given the patent regime even a moment of thought. They perform their research as they see fit, publish their results in journals, and then move on to their next project. But, some might ask, “what if a patentee gets out of sorts?” The simple answer, I guess, is that in these circumstances a patentee would find it difficult, if not impossible, to prove financial damage, and that equitable relief in the form of an injunction under these circustances is but a pipe dream under the MercExchange v. eBay standard articulated a couple of years ago by the Supreme Court.
Scientific research will go on. Patents will continue to issue. The two will live side by side in peaceful harmony and life will go on with business as usual.
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Until a scientist researching a cure for a rare disease publishes a paper on the subject, then gets a cease and desist order to stop the research. Because some other entity has patented a specific gene or way of isolating the virus, gene, molecule, or (name your scientific subject measure here).
It has happened in the past and will continue to happen in the future. I read an article back a few years back on medical patents detailing what is mentioned above, don’t remember where I read it, but read a similar article in Readers Digest about 2 years ago.
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Here’s a link to the RD article
http://www.rd.com/living-healthy/thats-outrageous—-patenting-human-genes/article28041.html
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You are correct regarding your observations. It appears that the Bayh-Dole act is pointed to as the culprit for slowing down research. There are multiple comments noting that patents have no effect or rarely affect the work of academic researchers.
There is another statement further down in the study that indicates that scientific competition and secrecy was a hinderance long before any IP concerns.
Love this quote from the paper:
Our findings, consistent with previous surveys, support Eisenberg’s conjecture that “patents in and of themselves might only rarely pose an obstacle to the research plans of academic scientists”
Fundamentally, university mandated Material Transfer Agreements (MTA’s) as a result of the Bayd-Dole act are blamed for problems in research.
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Yes, and two sentences later they say, “Patenting of research tools complicates tool exchanges because it induces institutional administrators, whose financial priorities scientists do not generally share, to encourage or mandate the use of MTAs in exchanges of such tools.”
I do not understand how they can claim that it isn’t the patents, it’s the MTAs, when the MTAs are because of the patents.
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Because MTA’s exist regardless of whether patent applications will ever be filed or not. Universities are looking to capitalize on MTA’s either in a sale to a company or as a patent application. MTA’s may or may not end up as patent applications. You might even say that those people affected by MTA’s would prefer a patent application be filed so that they could move on to sharing information. The article Mike linked to essentially made the previous statement.
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In all of years of dealing quite closely with scientists performing basic research, not once have I heard any of them decry that patents were stifling their research
So, let’s see… who do we believe? One staunch patent system defender vs. now multiple studies that highlight scientists who have clearly explained the chilling effects done to their research via the patent system?
They perform their research as they see fit, publish their results in journals, and then move on to their next project. But, some might ask, “what if a patentee gets out of sorts?” The simple answer, I guess, is that in these circumstances a patentee would find it difficult, if not impossible, to prove financial damage, and that equitable relief in the form of an injunction under these circustances is but a pipe dream under the MercExchange v. eBay standard articulated a couple of years ago by the Supreme Court.
You’re apparently ignoring all the chilling effects of people afraid to do research in certain areas, or told by their universities to not share research.
Scientific research will go on. Patents will continue to issue. The two will live side by side in peaceful harmony and life will go on with business as usual.
If only that were actually the case.
I’m going with the latter…
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Mike:
You’re apparently ignoring all the chilling effects of people afraid to do research in certain areas, or told by their universities to not share research.
According to respondents in the article to which you linked, the former is apparently not a problem and the latter is.
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I’m going with the latter
You are perfectly within your rights to be mistaken. BTW, do note that my comment was limited specifically to “basic” research, and would be more nuanced if commenting on “applied” research.
I don’t know about the previous poster, but the patent system has stifled MY research.
Always a good time seeing the process of Capitalism coming crashing down.
stop shilling
Mikey is a f****** tool
Re: stop shilling
Hello my little rant script!
It’s been so long, I feared your server had gone down. Good to see you up and well.
Conclusions are incorrect
The conclusions you draw in this article are incorrect, especially the last line of this artcile: “Once again, we’re seeing that about the only folks who really truly benefit from patents are the lawyers.”
While I am a staunch supporter of IP reform, pretending that the only reason we need IP is for lawyers to make money is preposterous. While it is true that scientific research is hampered by an extremely inefficient IP system, the writer of this article needs to explore where the funding for all of this research comes from. IP law allows scientific research to be commercialized into a viable product or service. Contrary to what the artcile implies, this product or service greatly advances research by spurring more companies to invest in R&D for the commercializable product.
This article incorrectly assumes that the funding and infrastructure for scientific development comes from the desire to expand scientific knowledge as fast as possible. While this is admirable, scientific thrust (with the exception of “pure research” which is not affected by IP law anyway) comes from the ability to commercialize a new technology.
Re: Conclusions are incorrect
IP law allows scientific research to be commercialized into a viable product or service. Contrary to what the artcile implies, this product or service greatly advances research by spurring more companies to invest in R&D for the commercializable product.
It is a myth that IP laws are what’s need to allow commercialization. There are plenty of ways to commercialize absent IP laws.
conclusions
First of all Mike’s incorrect conclusions shows that he is a ……….. (I don’t want to bad-mouth him, but you know what I mean. For more details see #1).
Before talking about Bayh-Dole Act first you need to understand why it was enacted (do some “work” sir).
There are already many rules in academic research that take care of your concerns. All the materials generated by a public-funded research must be made public. Most research papers and data are shared in the research community without any concerns (there are a few nut-jobs but they are everywhere!).
Read before you write?
Re: conclusions
There are already many rules in academic research that take care of your concerns. All the materials generated by a public-funded research must be made public. Most research papers and data are shared in the research community without any concerns (there are a few nut-jobs but they are everywhere!).
If only that were actually true. The number of scientists admitting they’ve been scared off from doing certain research due to patent issues is quite high. We’ve pointed to them in the past.
As for the rules about publicly funded research being made public, don’t make me laugh. Take a look at how many drugs that are totally owned by pharmaceuticals actually came out of publicly funded research…
Take a look at what various journals have done to try to hinder the public use of publicly funded research.
Perhaps it’s you who should read before you write…
Re: Re: conclusions
Mike:
If only that were actually true. The number of scientists admitting they’ve been scared off from doing certain research due to patent issues is quite high. We’ve pointed to them in the past.
According to respondents in the article to which you linked, they are unafraid of patent issues. Now, it may be that previous articles in that past have raised this issue, but not the scientists in the present survey.
Response
Mike,
I was not saying that commercialization can only occur with patents, however your artcile implied that the ONLY thing patents were good for was generating lawyers fee’s. I am not sure why people are attempting to flame you, as the things you say in your article are not completely wrong. I’m sure patents do TEND to stifle the flow of information which slows scientific advances.
The question you should be posing is would whatever alternative to patents you are saying exists give the same monetary drive to invest in this R&D.
And for the rest of you, flaming is pointless. This would all be much more interesting if you debated points instead of calling Mike names… you lot are the reasons internet forums and comment boards are often useless.
Re: Response
Oliver K.:
Perhaps a bit more narrowness is in order. I believe I have offered observations. Other than when I get tired and peeved at my inability to communicate, I attempt to avoid “flaming” anyone. I believe there are other “non-flamers” here as well.
Re: Re: Response
You are absolutely right I should have written some of you 🙂
Sorry about that!
Re: Response
Oliver K.:
In response to your second point, I find it interesting that prior to the Plant Variety Act, it took an entire decade for 150 new plant species to be developed. After the act, the next decade saw 3000 new plant species developed. Note that this act did not encompass bioengineered (genetically altered) plants, which were covered in a separate act. It seems that here is yet again (there are other studies showing that when IP is available, money will follow the IP – IP appears to provide incentive by reducing risk) proof that the ability to apply for patents and invention have a positive correlation.
Re: Response
And for the rest of you, flaming is pointless. This would all be much more interesting if you debated points instead of calling Mike names… you lot are the reasons internet forums and comment boards are often useless.
It would help if Mike would present his arguments fairly by not misrepresenting the content of the articles to which he links. It would also help if he would recognize when he does so and admit he made a mistake, as he did here. Lastly, Mike has shown a tendency to be derisive to those who refute his claims. If Mike wants cordial debate, then he should practice said behavior himself.
Re: Re: Response
“Mike has shown a tendency to be derisive to those who refute his claims.”
Have you not done the exact same ?
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Yes, as I experienced. I’ve also never seen Willton admit a mistake, though obviously he must have, as he would never stoop to hypocracy…
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Willton,
Totally unhelpful to this discussion, and another pointless personal attack.
You are using the “I’m going to be a martyr and flame because Mike is being (what I think) unreasonable.” Mature? I think not.
Why don’t you limit your criticism to THE ARTICLE, and not change the tone of a discussion by attacking the writer.
To assume that research will flourish in the absence of patent laws seems naive. Universities (just like companies) take the revenues from the patents and reinvest it. It seems probable to me that less scientific research would occur at universities without the reinvested returns protected by the patents. I am open to any evidence that “more” research would occur without patent (and somehow without the reinvested funding), but I certainly don’t see any here.
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To assume that research will flourish in the absence of patent laws seems naive. Universities (just like companies) take the revenues from the patents and reinvest it. It seems probable to me that less scientific research would occur at universities without the reinvested returns protected by the patents. I am open to any evidence that “more” research would occur without patent (and somehow without the reinvested funding), but I certainly don’t see any here.
Keep looking:
http://www.techdirt.com/articles/20080115/013002.shtml
http://www.techdirt.com/articles/20080911/0304512236.shtml
Previous studies have shown that focusing on patenting has decreased university research, and thus not actually driven greater revenues. On top of that one of the studies noted that focusing on patents made universities invest not in more research, but in funding tech transfer/licensing offices, the majority of which have been money LOSES for universities.
So, focusing on patenting has been a MONEY LOSER for universities, creating chilling effects for research scientists and decreasing useful research output.
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I am gritting my teeth because I have to…gasp…agree with Mike on a patent issue. He is correct with everything he has said regarding patents and universities. While some universities (but extremely few) may have claimed they are making money from patents, the fact is that the vast majority are not. Further, there have been a number (how many I can not tell you, but anecdotally it seems like a lot) of researchers who have complained about the “chilling” effects that a focus on intellectual property has had on their research. The “chilling” effect is the secrecy that the university places on this research (remember this the next time someone argues with me regarding business response to lack of patents – secrecy and trade secrecy is an acceptable alternative in many cases, and has a profound chilling effect).
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Mike,
Very interesting articles. It would seem I stand corrected on the scope of damage to academia (I’ll have to read “Against Intellectual Monopoly”.)
I am curious though, what alternatives you know of that are out there. What system might work better.
As I am involved in commercializing patents, I am curious how unprotected discoveries might affect small business growth, and how to solve something like the following scenario:
A group of entrepreneurs and technologists comes up with a new water filter system. They decide to market it and find it is highly lucrative. Coca-Cola comes along with a much larger marketing infrastructure and budget and decides to sell a competing product. The small company, because of a lack of IPP, cannot possibly match the marketing success of the larger company and folds.
As an advocate of small business I know that small businesses love patents because they protect expensive research from well funded larger competition (who has not spent time doing research).
Is there a reasonable solution that saves academia without punishing start-up investments? Otherwise to remove patents would mean that all research would have to be done by Universities and developed/produced by established businesses; definitely not a viable solution.
Oliver
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As an advocate of small business I know that small businesses love patents because they protect expensive research from well funded larger competition (who has not spent time doing research).
This is the big question that lots of people ask, but I think that it’s not nearly as big a problem as people think — and if you look at historical examples of nations with no or weak patent protection you see that it’s not very much of a problem.
There are a few reasons why:
1. Innovation is not a once-and-done thing. It’s an ongoing process. So if the small company really has a great breakthrough, then it should be ahead of the game even if the larger company comes along and copies its research. By the time they’ve copied the product, the smaller company should already be on to version 2.0 and be seen as a leader in the field.
2. The first company often has a big first-mover advantage.
3. The smaller company is likely to be more nimble and flexible in terms of better dealing with customer demand.
4. Big companies are notoriously slow and legacy issues get in the way all the time. Microsoft outran IBM. Google outran Microsoft. Netflix outran Blockbuster. The idea that all a big company needs to do is throw money at the issue is pretty obviously false.
So I wouldn’t worry so much about protectionism, and focus more on innovating and serving the market better.
Is there a reasonable solution that saves academia without punishing start-up investments? Otherwise to remove patents would mean that all research would have to be done by Universities and developed/produced by established businesses; definitely not a viable solution.
I don’t see how this conclusion naturally follows. You can easily still commercialize university research at a startup without patents.
For real.
IF someone can honestly say that they believe our lives and tech habits have increased in value realistically due to all these walls we put up so others can’t drink from the discovered “water”. Well…I guess there is no point in going there, denial is a wall too.
Patenting hurting research
I am a patent attorney, but I agree completely.
No question – small entity patenting, in the form intended by the US Constitution, is good.
Large entity patenting, especially under the Bayh-Dole Act, is completely adverse to the intent of the Constitution, and is so destructive that no system at all would be better!
Re: Patenting hurting research
Article 1, Section 8, Clause 8 draws no distinctions between “small” and “large”. It speaks solely to “authors” and “inventors”. Where you find the basis for the distinction you make elludes me completely.
idea
great idea! in fact, let’s do away with all form of property rights including copyright. god knows you have nothing of value to protect anyway.
as usual, entirely wrong
1) if there are no (monetary) damages, infringement is not likely to bring a suit.
2) *inventor* like patents. *the founding fathers* like patents. There is a clear and convincing reason patents are in the constitution. It was a fair deal for disclosure in return protection. You must know that, but if you do, why do you insist on nonsense? If you have good arguments, use them, but since you don’t, be quiet.
Thanks for the Reply
Mike, thanks for the reply and for pointing to the other articles (entries?) you’ve written which reference the evidence for a ‘patent culture’ reducing university research. I haven’t looked into the evidence to judge for myself and probably won’t due to time constraints and other priorities, although I would probably enjoy reading it, and thanks for providing it.