Patent law holds back science

The Pak Banker - - OPINION - Noah Smith

ONE of the big­gest sto­ries in science right now is the fight over the Crispr patents. Crispr is a gene edit­ing tech­nique that prom­ises to al­low pre­vi­ously un­think­able feats of bio-en­gi­neer­ing. It was dis­cov­ered in stages, like most sci­en­tific break­throughs, by mul­ti­ple teams work­ing at var­i­ous uni­ver­si­ties and re­search in­sti­tutes around the world. The fi­nal, key ad­vance­ments were made more-or-less si­mul­ta­ne­ously by two teams of re­searchers -- one based in Cal­i­for­nia and led by Jen­nifer Doudna and Em­manuelle Char­p­en­tier, the other based at the Broad In­sti­tute in Mas­sachusetts and headed by Feng Zhang.

The two teams will prob­a­bly split the inevitable No­bel Prize. But they are now en­gaged in a bit­ter dis­pute over the patents. The Cal­i­for­nia team filed for a patent first, but the Mas­sachusetts team was the first to be ac­tu­ally granted the patent, since it filed a fast­track ap­pli­ca­tion. Crispr will prob­a­bly cre­ate in­dus­tries worth many bil­lions of dol­lars, so lawyers are now pre­par­ing for an epic bat­tle.

Mean­while, sup­port­ers of both teams have been vy­ing for credit in the pub­lic sphere. Eric Lan­der, the founder of the Broad In­sti­tute and an ad­viser to the Barack Obama ad­min­is­tra­tion, wrote a pop­u­lar ar­ti­cle em­pha­siz­ing the role of his own re­searchers, pro­vok­ing fiery out­rage from Michael Eisen of the Univer­sity of Cal­i­for­nia-Berke­ley. Other re­searchers and some me­dia pub­li­ca­tions and blog­gers have jumped into the fray.

Crispr, which stands for clus­tered reg­u­larly in­ter­spaced palin­dromic re­peats, is the stuff of science fic­tion, though this dis­pute feels more like some­thing out of the 1600s. In that cen­tury, Isaac New­ton spent a huge amount of time and ef­fort try­ing to make sure that he, and not Got­tfried Leib­niz, was rec­og­nized as the true in­ven­tor of cal­cu­lus. In truth, both men had in­vented it in­de­pen­dently at the same time. The bit­ter dis­pute sadly pre­vented the two ge­niuses from work­ing to­gether and ac­com­plish­ing even more.

In the wake of that de­ba­cle, science grad­u­ally evolved a sys­tem of peer re­view. By cir­cu­lat­ing pa­pers to col­leagues in­stead of keep­ing dis­cov­er­ies se­cret, sci­en­tists could ef­fec­tively put a time-stamp on their work. If two or more peo­ple made a si­mul­ta­ne­ous break­through -- as hap­pens very of­ten -- they could share credit.

That sys­tem turned out to be hugely ben­e­fi­cial for the world, since it al­lowed sci­en­tific ideas to spread. Ideas are what econ­o­mists call a non­riv -- once you pro­duce them, they cost noth­ing to repli­cate. Peer re­view, and open science in general, helps ideas prop­a­gate freely, in­creas­ing the num­ber of peo­ple who can use them to cre­ate new tech­nolo­gies and boost the wel­fare of the hu­man race. The ba­sic in­sights be­hind tech­nolo­gies such as semi­con­duc­tors, lasers, nu­clear power, global-po­si­tion­ing sys­tems and many med­i­cal treat­ments have been spread by peer-re­viewed science.

But now open science, which has worked so well for hu­man­ity, is un­der threat from a par­al­lel in­sti­tu­tion -- the patent sys­tem. One key change was the Bayh-Dole Act of 1980, which al­lowed uni­ver­si­ties -- rather than the gov­ern­ment -- to re­tain own­er­ship of in­tel­lec­tual prop­erty cre­ated with fed­er­ally funded re­search. Since that time, the num­ber of patents granted to uni­ver­si­ties has soared, with the Univer­sity of Cal­i­for­nia and Mas­sachusetts In­sti­tute of Tech­nol­ogy lead­ing the way. Un­like the in­for­mal sys­tem that sci­en­tists use for shar­ing in­tel­lec­tual credit, the patent sys­tem is win­ner take all. Who­ever gets his or her ap­pli­ca­tion ap­proved first gets all the money. That cre­ates an in­cen­tive for se­crecy -- if sci­en­tists' ideas leak out, some­one else could file the patent more quickly.

Se­crecy is the bane of science, since all re­ally great break­throughs are ac­tu­ally a chain of small dis­cov­er­ies. Each scientist or team of sci­en­tists ea­gerly reads the lat­est re­sults from other labs and adds some small but bril­liant in­sights or crit­i­cal pieces of data, then releases the new find­ing as quickly as pos­si­ble for the rest of the sci­en­tific com­mu­nity to gob­ble up. But if bil­lion-dol­lar patents are at stake, uni­ver­si­ties -- which end up own­ing much of the in­tel­lec­tual prop­erty that comes out of pro­fes­sors' dis­cov­er­ies -- have a strong in­cen­tive to pres­sure their schol­ars to keep new find­ings and ideas un­der wraps.

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