Patents and the Public Interest

2014-03-18T15:12:52+00:00 January 24th, 2014|Science and Society|

by Reuven Brandt

Science is neither cheap nor easy.  One tool used to incentivise investment of both money and effort into scientific research is patent law, which offers temporary monopolies as a reward for new marketable scientific developments.  In theory, the profits to be made from patent protection drive innovation by rewarding individuals for turning scientific discoveries into usable products and services that benefit the broader public.  This is supposed to be a win-win situation.  The public benefits from the new science and technology, while the investors, scientists and engineers profit financially from their temporary monopoly.  Though there may be good things to say about the benefits of patent law, I want to highlight some problems it creates.  I will argue that patent law problematically incentivises only certain kinds of solutions, sometimes shifts research away from the public good, and wrongly takes advantage of publicly funded research.

Not all discoveries and inventions are patentable.  The law governing intellectual property is very complex, but generally speaking for something to be patentable it must be a novel product or process that solves some technological problem or provides some kind of benefit.  Since research into environmental and behavioural interventions generally does not meet these criteria, this research is in effect disincentivised, and consequently underfunded.  The fact that some kinds of research are more profitable than other interferes with the scientist’s openness to all possible solutions for a given problem; and the lack of funding means that even if scientists are interested in non-patentable avenues of research, these will be harder to pursue.  The possibility of patenting therefore adds a non-scientific desideratum (patentability) to scientific problems that constrains what kind of research is most desirable and most funded. 

As pointed out by Hicks, the addition of non-scientific desiderata into research goals is not unique to patenting since science is always influenced by external social values.  Furthermore, non-scientific desiderata are not always undesirable – think of cost, ease, and timeliness in the lead paint example.  Certain non-scientific desiderata advance the public interest.   However, the profit motive can be at odds with social benefit.  The bias against non-patentable research means that certain avenues of research are not explored even if they have the potential to provide better and less expensive solutions to pressing social problems.  Patenting favours profit over social benefit.  This is an example of intrinsic goods (new treatments for diseases) being treated as mere means to greater profits.

The rise of patenting not only constrains what solutions are explored for a particular problem, but also influences which problems get studied in the first place, and which solutions get implemented.  Market forces often do not coincide with social need, and because profit helps direct research and development, projects with more profit potential are prioritized over less profitable projects that might serve more pressing social needs.  For instance, preventative interventions, third-word diseases (like malaria) and serious but relatively rare diseases receive little funding while disproportionately large sums of money are spent developing drugs like Viagra.  Sometimes products known to be beneficial are never developed because of the lack of financial incentive.  For instance, it is known that the combination of two particular drugs are more effective at treating AIDS than either alone.  Combining both in a single pill would improve compliance and make drug distribution, particularly in the third world, much easier.  Since different companies hold the patents to the different drugs and could not reach an agreement with each other, the single-pill option was not made available in any country that respects US patent law (for more see here).  In this case patent holders blocked an improvement to their products that would save lives for purely financial reasons.

What makes these problems particularly pernicious is that many new patentable products, especially in biomedical fields, rely heavily on publicly funded basic research.  This means that the public often ends up subsidising research that’s use will be governed by corporate interest rather than social need.  This is an misuse of publicly funded research.  Importantly, the cheaper products available at the expiry of patents are often inadequate compensation for the public dollars spent.  Cheap Viagra is of little solace to individuals with rare diseases that get ignored by researchers.

These problems do not mean that there is no place for patenting products that are developed using publicly funded research.  Rather, like in the ideology that governed pre-depression era university patents, intellectual property law can be used for good ends.  For instance, a researcher at the university of Toronto has stated that she intends to use patenting as a way of ensuring that any products developed from her malaria research are brought to market in a socially responsible way.  One way for universities to help avoid the harms of patenting  is to be mindful of the problems it has the potential to cause and enact policies governing intellectual property rights that protect the integrity of research and ensure that social needs are prioritized over corporate interests.