Sunday, May 31, 2009

Free Markets and Corporate Welfare

Let's face it: patents are governmentally-sponsored monopolies. So are copyrights and trademarks. I argue that patents are a far larger governmental interference with the free market than copyrights, because there is less of an infrastructure devoted to copyright. Your copyright is instituted by your authorship, and helped a bit by affixing the little copyright symbol. Your copyright is enforced in the courts, rather than through a government bureaucracy. If we had truly free markets, then products would survive by virtue of their relevance to consumers, and consumers' trust in your brand, and their willingness to pay you for what they think the product is worth. Can we conceive of such a marketplace? Indeed. Without the anti-free market devices of corporations, patents, and arcane and expensive bureaucracies and institutions, useful new products would have to prove their value without the crutch of artificially-created monopoly status, and prices would reflect actual values. All of this seems elementary, and economies existed and flourished long before governments became so entangled with corporate interests. Imagine the flood of new innovation that might enter the marketplace without the threat of large, corporate monopolists threatening lawsuits based on questionable patents.

In many ways, there is now a shadow economy that is waging courageous battle with the monopolists. In this week's The Economist (which I diligently read cover to cover each week), they declare the battle over. Open source has won. This is more or less true. Much of the backbone of the interwebz runs on Apache servers, and Sun bought Open Office, and Google is running on mostly open source software, etc., etc.. And somehow, the infrastructure of the internet is benefitting, and companies still make profits, and the products get better more rapidly, and science marches forward. This is because a truly free market, one that involves consumers and producers in a virtuous cycle, works better than providing advantages to corporations through unnatural monopolies. The latter course is inefficient.

Scientists too realize the benefits of keeping some things in the public domain. Some early responses to the potential that some would grab claims to genes included concerted scientific and corporate cooperation to maintain a commons in basic science. People often ask me how we can fight the monopolist impulse, and reclaim our genome. The good news is, there are many who are trying. The ACLU suit is one avenue. But scientists, and those who support open source and open science realize the true value of not just free markets, but openness as a commodity, as a source of value, and as a value in itself.

Thursday, May 28, 2009

Some basic ontology of ideas, artifacts, and natural kinds

in response to some more disagreement to a post at IPwatchdog.

Some subtleties bear discussion surrounding the ACLU/Myriad suit, and the general legal prohibition against owning "ideas." As with many legal confrontations, one of the problems involves the unclear use of terms by the courts. Specifically, while the Supreme Court has prohibited patents over laws of nature before because they would "amount to" owning ideas, this is not the real reason why laws of nature cannot be patented. Well, it is, sort of, but let's evaluate the various things and see why we cannot own laws of nature:

Laws of Nature: these are inherent in nature, thus they are not new or inventive. Thus, I cannot claim a monopoly over the phenomenon that attracts bodies to each other. Nor can I try to own the phenomena that causes 2 multiplied by itself to equal 4. Nor can I own the phenomenon that causes energy to be released from hydrogen molecules when they are fused (the sun has been doing this for a long time), nor can I own the phenomenon that makes human females more prone to cancer when they possess a certain string of genes, nor can I lay claim to that string of genes which has been a product of evolution for eons.

Expressions: Expressions are the products of human minds, they are the ways that ideas are transmitted between people. The ideas might be new, for instance, of a unicorn, a steam engine, a warp drive, a new combination of genes not already occurring in nature, etc.. They may be of old things, like the natural processes of evolution, the laws of relativity or gravitation, or of a string of genes that evolution created.

Artifacts: These are a form of expression, specifically objects that endure -- what we might call continuants.

Other expressions: Occurents, like a dance, a speech (if not recorded), and other expressions of ideas that do not last after the event. They occur over a span of time

So far, the law of intellectual property has only been applied to a particular kind of continuant, specifically only those that express ideas not otherwise found in nature - new ideas. So, an expression of the laws of nature is excluded subject matter, not because it is an idea, but because it is an expression that is not of something new. A scientific theory is a good theory if and only if it bears a good correlation to the laws of nature, such that it accurately predicts experimental results.

Is gravity an ""idea"? Yes, inasmuch as the abstract entity -- the law of gravitation has been working on the universe since the universe began, just as the abstract entities of mathematics have been making 2 + 2 = 4 for billions of years before humans figured out that it wasn't just a good idea, it was the law.

Tuesday, May 26, 2009

Some updates

I've been having a back-and-forth with Gene Quinn at his site, IPwatchdog. Here's a link to some of our ongoing disagreement abut gene patenting and the ACLU/Myriad suit.

Also, today the TU Delta (my university's newspaper) published an opinion piece I wrote on the subject of the suit, with some references to repercussions for Europe.

Still trying for some more traction in the US media, where this is most relevant, but where there's very little in the way of reasoned analysis. On both sides of the issue, emotions seem to be driving people's opinions, but I am appealing (IMHO) to sound philosophical reasoning, legal precedent, and logic. Always a deadly gambit, I know. So sue me.

Saturday, May 23, 2009

Totally pwned, dude

I have attempted to chime in on a few blog debates about the Myriad suit and found two distinctly different takes on the subject. There are those who see the clear irrationality and inconsistency of allowing patents on disease genes, and then there are those who claim that without these patents innovation, and thus cures for diseases, will grind to a halt. The latter, clearly, get my goat.

Let's be clear, basic research flourished for decades (before Bayh-Dole, which I'll explain in a moment), and the corporate world did not suffer in the least. Consider the decades between 1945 and 1975. Corporate growth and wealth in the US was enjoying a rather steady uphill climb, even though at the time much of the basic research that was happening was publicly funded, conducted in universities, with no reward of patent available to university researchers. Somehow, the corporate world benefitted, the economy tended to grow, innovation proceeded apace, and technology improved. In 1980, Birch Bayh and Bob Dole had their bill passed, the Bayh-Dole act mentioned above, which allowed those conducting research with public money (NIH or NSF grants, chiefly) to profit through intellectual property rights to their inventions. This set off a flurry of grabs by universities for potentially profitable, blockbuster patents, like the famous "Harvard Mouse." Before this, of course, basic science was published in journals, made free and open for use by any and all who might innovate, and was often successfully turned into profit and property through actual inventions. But Bayh-Dole changed that, and some (like me, for instance) might argue, not necessarily for the better.

Patents on unmodified genes were another ripe field for plunder, and disease genes especially. These are the nuggets, because that's where the federal funds go: disease research, and if you can claim rights to a disease, you can get all sorts of profitable royalties. In my book, I call attention to Canavan's disease, which is one of those genetic diseases that strikes largely among Ashkenazi Jews, like Tay-Sachs. But while, as I argue, all gene patents (not just on genes) violate the "commons" that is the human genome (and genomes in general), it is the disease patents that are most troubling.

Think back to the 30 years between the creations of the NIH and NSF and the enactment of Bayh-Dole. Was that system stifling research? Did it require appealing to greed somehow to impel or prod along a lazy research community? Have things improved so much since Universities were encouraged to churn out patents to pay for the gaps created by the withdrawal of federal funding? Is it too late to turn back the clock a bit, and see if maybe it wasn't working just fine, before we decided that science required the lure of lucre to do what it had done for ages?

Call me a cockeyed optimist, an idealist, or worse, but I think science and industry had a pretty healthy relationship before the present era. The atomic age, the space age, the computer age, all had their geneses before Bayh Dole. I think we can afford to give that model another go. What say you?

Friday, May 22, 2009

Science and the First Amendment

The ACLU lawsuit against Myriad presents a unique and intriguing claim based upon the First Amendment of the US Constitution. I would have never thought of challenging gene patents on these grounds, but it's certainly a "colorable" claim, in my opinion. This means, it sets forth a cause of action, and it should survive a "motion to dismiss" which is Myriad's inevitable reaction to the complaint. So where's the 1st Amendment claim? In the complaint, the cause of action is described:

"all of the challenged claims represent patents on abstract ideas or basic human knowledge and/or thought and as such are unconstitutional under the First and Fourteenth Amendments to the United States Constitution"

So, here's how the First Amendment gets violated: the government prohibits some speech. Now, taking the facts and claims alleged in the complaint as liberally as possible, as the court must do on a motion to dismiss, here's the essence of the First Amendment claim: The government grants a patent, and this patent prohibits certain speech about basic human knowledge or thoughts. If researchers are prevented from doing basic science, investigating breast cancer as the Yale group sought to do until they were harassed by Myriad, then this could be an example. It raises an interesting general problem about science and intellectual property, namely: all monopoly rights to knowledge and its applications are governmental prohibitions on speech. This is not limited to patents that cover "basic human knowledge and/or (ugh) thought." This is literally true. Monopolies stifle speech, and where they are granted by government, they are unconstitutional. Except that I am pretty sure that patent law in general is not about to be overthrown on First Amendment grounds (not that it would necessarily offend me if it were). So this claim is going to be a tough fight. We shall see.

Thursday, May 21, 2009

A Certain Irony

When the British crown began to consider expanding its territories and commercial reach, it reached out to a population that even today we associate with violence, thievery, and anarchy: pirates. It was cheaper than starting from scratch and building fleets of vessels, raising a navy, then arming and equipping them. The Pirates had perfected their methods against both Spanish and British vessels, and to cut the losses to British commerce, it seemed best to put them under the Crown's employ. The "Privateers" were born, and Pirates were successfully re-branded. They were used to cut into Spanish stakeholdings along important routes of developing trade, as well as to launch raids on strategic ports along those trade routes. They also continued to commit acts of piracy against foreign vessels and to bring home the booty (some of it) to the Crown.

What does this story have to do with Intellectual Property, you might ask?

The Crown employed these privateers in many cases by using a device still used today. The sovereign extended a monopoly to them in exchange for their loyalty and a share of the proceeds from their raids. Piracy was legitimized, institutionalized, and whole swaths of the new world were acquired by something called "Letters Patent." (This is the one used to employ Francis Drake)

It is from these that the modern institution of patent is partly derived. The grant by a sovereign, for a period of time, of exclusive use of a part of the world or its resources. I argue that these devices owe nothing to natural law, but remain choices of sovereigns, and can be altered as we see fit. Patents must serve pragmatic purposes. Now that we have democracies, the sovereign that benefits ought to be the people represented, not isolated individuals or corporations. The purposes of Patent law are best met when it is crafted to encourage the growth of science, the swift movement of scientific and technical knowledge into the public domain, and innovations are rewarded even while scientific inquiry is encouraged. Over-reaching, as in the case of patents on basic scientific truths (like the sequence of a naturally-occurring gene) serves none of the purposes of patent law, and turns the PTO into an anti-democratic sovereign, and the patent holders into pirates.

Wednesday, May 20, 2009

On Gene Patents

The past week's news about the ACLU lawsuit to combat Myriad's patents on two versions of the "breast cancer" gene has prompted me to begin to record my own thoughts and observances on the practice. Of course, I have a book-length treatment of the subject that was recently published by Wiley-Blackwell, appropriately titled: Who Owns You? The Corporate Gold Rush to Patent Your Genes, available now at major booksellers. Ironically, torrents for the book exist and there's little I can do to stop them. So much for my libertarian take on Intellectual Property. No matter, the ideas are what I want to spread, and they center around the nature of property in general, the existence of natural "commons" which cannot be "enclosed" by laws, at least not ethically, and the relations between ethics and nature.

So this is it, rather than try to swat down the misunderstandings and miscommunication about the practice of gene patenting by replying to every erroneous blog post or media article out there, I will summarize my thoughts here. I will also post updates, including news articles, and my own writings on the subject as they may appear.

For starters, here's the New York Times piece on the lawsuit: Cancer Patients Sue Over Breast Cancer Gene Patents

and here's a piece I recently published at Science Progress (before the lawsuit): How Genes are Like Plutonium

Here's an article about my talk at the University of Virginia Law School on the subject