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?


Lex said...

Help me with the "pnwed" if you don't mind. I'm slow. But the First Amendment argument is freaking brilliant, since it plants its flag right at that point of inflexion between an idea and its expression. Now, while the Bayh-Dole genetic descendants debate their dwindling corporate legacy (Colin Powell to the rescue!) wouldn't it be fun to pull the rug right out from greed? From all accelerating aggregations of wealth, intellectually at the ridiculously elite universities which finally will succeed in stomping out creative thought beneath superstar competitions; Economically at a corporate scale so recently exposed as purest theft. Thanks for your lucidity on this critical issue at this crucial turning point for our Republic, if not the earth.

Lex said...

I mean I get the "naked" part, but there are all these echoes of GNU and recursivity and my mind is blowing, dude.

drkoepsell said...

Thanks, Lex!

On "pwned" I would point you to this:

or this:

Lex said...

OK, I'm laughing, maybe doubly, since, well, I'm not a gamer and could never get such things, but, um, did you (mis)spell it that way on purpose?? Is it fair of me to read in this em bare ass ment of the cleptocracy? Are you really that clever? (OK, OK, I'm really that slow) Feel free to delete me. I mean, it's not like I'm copyrighted or anything. I don't want to expose anyone . . . or spoil the gag.

drkoepsell said...

ok, fixed the mis-spelling of the mis-spelling.
color me stew-ped

Robert K S said...

Please explain why you believe government-funded researchers were not entitled to acquire, or in fact did not acquire, patents prior to the enactment of Bayh-Dole. All Bayh-Dole did was to unify title contract policy across government agencies. A conclusion based on a faulty understanding of the effect of Bayh-Dole is liable to be faulty in turn.

drkoepsell said...


This is pretty standard history, available from many sources. The Wikipedia article is a good source. My grandfather, for instance, did federal research and was not given the patent (although he could have been named on the patent, had he sought that). The government kept the patent, and sold it to GE. Bayh-Dole did unify procedures for licensing, but it also gave universities and other orgs doing research on federal grants the ability to maintain control of the IP. This fundamentally changed the nature and motivations of those doing basic science on federal grants. Here's from Wikipedia:

"The Bayh-Dole Act or University and Small Business Patent Procedures Act is United States legislation dealing with intellectual property arising from federal government-funded research. Adopted in 1980, Bayh-Dole is codified in 35 U.S.C. § 200-212[1], and implemented by 37 C.F.R. 401[2]. Among other things, it gave US universities, small businesses and non-profits intellectual property control of their inventions and other intellectual property that resulted from such funding. The Act, sponsored by two senators, Birch Bayh of Indiana and Bob Dole of Kansas, was enacted by the United States Congress on December 12, 1980." and more, from the History:

"Prior to the enactment of Bayh-Dole, the U.S. government had accumulated 30,000 patents. Only approximately 5% of those patents were commercially licensed.

After World War II, the government began spending a great deal of money to support public research in military, defense and medical technologies (through the newly founded National Science Foundation). However, the government did not have a unified patent policy. At one point, those interested in government intellectual property were faced with dealing with 26 different agency policies.

The government's steps towards unification began in 1963 with Jerome Weisner, President John F. Kennedy's science advisor, and culminated in 1971 under President Richard Nixon. Nevertheless, all these policies directed title to the agencies and not to the public.

Many non-profit organizations, led by the University of Wisconsin-Madison, sought even more favorable policies. In 1968 and 1973, the University successfully lobbied for agencies to enter into Institutional Patent Agreements (IPA), which, among other things, allowed universities and non-profits with approved of patent policies to retain title to their inventions. Although agreed to by only two agencies, the Health and Human Services (HHS) and National Science Foundation, the IPA laid the groundwork for enacting Bayh-Dole less than 10 years later."