The failed metaphor of patents as property
In their book, Patent Failure, James Bessen and Michael J. Meurer provide a sober critique of the U.S. patent system, focusing on doctrinal and technological shifts that have fundamentally disrupted the efficiency of the rights we bestow on technological inventions. Their conclusion: during the last decade, our patent system has broken down because it failed to operate as a transparent system of property rights for inventions. As a result of, among other factors, the huge cost of identifying relevant, competing patents–often claiming broad, early-stage innovations–the authors argue that patents cost industry more than they deliver, especially in high-tech sectors.
Bessen, a former software executive and currently lecturing at Boston University and Meurer, a law professor at BU, base their evaluation of the modern patent system on cost-benefit estimates for inventors of different scales in different industries. Their conclusion, that patents do not provide the clear boundaries that are necessary in a workable system of property rights, is based heavily on a comparison of different industries. Their research indicates that one modern industry where patents are particularly efficient–in that they impose very little cost on the profits they provide–is the chemical industry, where there is very little to argue about when it comes to a specific molecule that is patented.
Though they focus on software patents as an example the deleterious effects of overly vague patent claims, they highlight biotechnology as an industry similarly fraught with bad patent practices. They blame the legacy of the Bayh-Dole act, encouraging universities to patent basic research, as well as a reduced requirement that patents be shown to have “utility”, a legacy of sometimes-conflicting rulings by the Federal Circuit during the ’90s. The reduced burden of demonstrating that an invention is useful, or that it has been developed beyond the discovery stage has at least two negative implications: (1) that patents on basic scientific discoveries have become overly vague and discouraging to future inventors and (2) an oft-cited “flood” of patents has overwhelmed both the patent office and the ability of inventors and firms to search for patents that might compete with their ideas or research.
From the perspective of biomedical patenting, Bessen and Meurer’s contrasting characterization of chemical-pharmaceutical patents from those in the biotech/biologic drug industry highlights one broad confusion over drug patents. Contrary to many claims, the apparent success of traditional chemical patents does not portend the same happy fate for patents on complex biological drugs, much less patents on gene sequences or discoveries about basic biological systems. When patent apologists claim that patents are essential for the drug industry, their enthusiasm may be outdated.
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Book – Patent Failure: How Judges, Bureaucrats, and Lawyers Put Innovators At Risk, by James Bessen and Michael J. Meurer (Princeton, 2008).
