I’ve neglected the blog here at yalepatents.org for the last several weeks as graduation, moving, etc. have taken their toll on my attention.  I’m leaving Yale in the next few months, so it is fitting to bring this collection of posts to a close.  For over a year, I’ve used yalepatents.org to jot down some of my thoughts about the intersection of law, politics and biomedical science. My goal has been to present these topic from a researcher’s perspective.  My next blog will correspond with my transition to law school, where I’m excited to have the chance to think more deeply about technology law, regulation and the use of scientific data in legal decision-making.  I’ll link to that blog when it’s live, but for now, please peruse the yalepatents.org archives, by month:

In contrast to so many current political debates–climate change, abortion, health care–intellectual property law often appears to occupy a rarefied perch accessible only to patent experts, clerks and judges.  Patent policy is unnervingly complicated, with deceptively simple patent laws that are burdened with complicated webs of judicial interpretations.  It is little wonder, then, that most of us take for granted our government’s policy of granting and enforcing patents–if only as a cognitive coping strategy.  This complexity-induced apathy, by the way, suits patent lawyers just fine, and might be acceptable most of the time because, as in the case of an undersea oil-well blowout-preventer, patents may work pretty well, except when they don’t.

Patents on human DNA sequences (at least 20% of our genes are locked up) are increasingly viewed as deterrents to a new generation of genetic-diagnostic technologies, as well as to basic biomedical research itself.  That is the belief held growing number of physicians, researchers and legal experts, as well as this author.

Why do I use the word, “belief”?  Simply put, though the specifics of patent law are largely excluded from raucous public debate, the costs and benefits of patent reform are nevertheless as hypothetical, and worthy of argument, as in the cases of health-care reform, climate-change strategy or nuclear disarmament.  Proponents of the current system claim that the current patent regime is nothing less than vital to innovation.  As in any debate, those in favor of the status quo can point to experience, arguing that current technology would not have arisen without patent protection.  The apparent conservatism of this position belies the fact that our current patent regime–and any patent regime–is an artificial, legislated concept.  Defending it from alteration by claiming that it is an optimal policy is, thus, rationally unfeasible.

Some of the current momentum behind the reform of gene patent policy results from evidence that future genetic tests will be hamstrung by patents held by universities and companies–patents that give these organizations control over virtually any use of the human genes they claim.  That is the conclusion shared by a recent report from the HHS Secretary’s Advisory Committee on Genetics, Health, and Society (SACGHS).  The prediction that patents will impede progress may not, in itself, be sufficient reason to make changes to the policy.  However, the Committee points out the exceptionalism of patient care:

Indeed, in the realm of commodities or consumer electronics it may well be that dramatic harms and a profound lack of benefit should be required to compel any recommendation for change. But genetic tests affect patients’ lives and health.  Thus, the current system’s net negative effects on test development and patient access to these tests argue strongly for the narrowly tailored changes that are proposed.

These proposed changes are two-fold: (1) a diagnostic test exemption, allowing human genes to be analyzed even if they are protected from other uses (i.e. as therapeutics) by patents; and (2) a research exemption, allowing any use of patented genes in the pursuit of biomedical research.  This second exemption may come as a surprise to many, even to scientific researchers themselves.  Many scientists I’ve talked to either assume that common law (or common sense) already exempts their work from violating patents (mostly because it is unbelievable to many genetic researchers that DNA sequences could be patented in this way).  However, court decisions have decreased the research exemption to nil.  The SACGHS report argues for the clear enunciation of the legality of research on patented genes, if only to promote the rule of law.

Agree or disagree with these proposals–that is their major benefit!  They give something concrete to agree or disagree with to those citizens (especially relatively apolitical research scientists) who may have felt sidelined by the complexities of patent law debates.  Furthermore, gene patents are a natural starting point for a more general debate over patent policy because they affect anyone who intends to ever get medical care.

I’m back from defending my thesis (apparently successfully), just in time for  big news in the biomedical patent world.  The summary judgment ruling against Myriad Genetics and its BRCA gene patents, announced yesterday, brings up many questions about the future of patents covering genes and, potentially, other biological phenomena.   Obvious, however, is that the US patent office (USPTO) was shamefully uncritical of the claims from the original patent applications, a problem that extends to many, many similar patents.

Valid patent claims are meant to be narrow and novel but, by claiming invention of a short (15 nucleotide) DNA sequence, the BRCA1 patent clearly violates these criteria.  This is the conclusion that Duke researchers elaborate in a recent investigation, where they elegantly demonstrate what should be obvious to anyone with a minimal understanding of statistics (which was clearly not the case for the patent examiner).  The BRCA1 patent claims (in language similar to many gene patents): “An isolated DNA having at least 15 nucleotides of the DNA of claim 1″ (claim 1 being the protein sequence BRCA1).  Thomas B. Kepler, Colin Crossman, and Robert Cook-Deegan at Duke calculated that BRCA1 contains 5,575 individual 15-nucleotide sequences (15-mers).  Since the same protein sequences can be encoded in different DNA sequences, there are actually 1.6 × 10⁶ 15-mers that could encode the patented sequence of BRCA1.  As there are only 1.07 × 10⁹ possible 15-mers (DNA only has four letters), the patent could actually cover 1 in 600 of all possible 15-nucleotide DNA sequences (1.6 × 10e6/1.07 × 10e9).  The authors calculate that an average human gene would have 15 of the 15-mers covered by the patent! It should be noted (and this is a compliment, not a criticism) that this theoretical analysis requires nothing more than a calculator.  Searching for DNA or protein sequences can be done, for free, by anyone with a web browser; it was a bit more difficult, but not impossible, when the Myriad patents were filed in the late ’90s.  The merit of patenting such sequences may be debated as a point of policy; their novelty and uniqueness may not.

The court didn’t look into such specifics, but rather at the broader applicability of patent law to genetic information   Yesterday’s ruling focuses on whether the BRCA patents fall within the realm of “products of nature”, which have been held to be non-patentable.  The court found the genes to, indeed, be such a natural product.

Though there will certainly be much to debate in the ruling (which, no doubt, will be appealed), one of my favorite parts is a not-so-subtle rebuke of the USPTO, as well as Myriad’s argument that the government’s wisdom in granting patents should be respected:

The Federal Circuit has previously held that it owes no deference to USPTO legal determinations.  See, e.g., Arnold Pship v. Dudas, 362 F.3d 1338, 1340 (Fed. Cir. 2004) (“This court reviews statutory  interpretation, the central issue in this case, without deference.”).  While Congress has created a presumption of validity for issued patents, approximately 40% of patents challenged in the courts have been found invalid, demonstrating that this presumption is far from absolute.

yalepatents.org is on temporary hiatus while I finish my dissertation, but I thought I’d share some relevant sources of procrastination from the past few weeks.  First of all, On Point, the news program from WBUR-Boston, hosted a discussion on gene patenting and the Myriad/BRCA case.  Tom Ashbrook and his guests hold an accessible discussion, providing a nice starting point for those interested in gene patenting and biotech industry.  Notably, Chris Hansen of the ACLU defends his organization’s side in the case, arguing that a ruling in favor of the plaintiffs will not hinder biotech patents, but will promote competition and innovation in the industry.

Getting away from the economic immediacy of biotech intellectual property, some recent literature begs the question: what is professional bioethics good for?  Some of the recent discussion has been prompted by a new book, Observing Bioethics, by Renee C. Fox and Judith P. Swazey.  Though I look forward to reading it as soon as possible, Sally Satel provides a provocative review in The New Republic. Satel, a resident scholar at the conservative American Enterprise Institute, has written that the political and professional wing of the bioethics movement (in government and on hospital staffs) has distracted attention from its academic soul, transforming a philosophical field into an activist one.

Arriving as populist movements battle healthcare reform, this critique of bioethics is quite timely.  However, the anti-bioethics position conveniently, and attractively, avoids anti-elitism.  Satel argues in a recent essay from the Hoover Institution that bioethicists simply don’t have an expert advantage over average citizens the way geologists do in the climate change debate.  Rather, when they participate in the political discussion or on hospital review boards, “their value is mainly cosmetic or bureaucratic”.

Book Review: Who Owns You? The Corporate Gold Rush to Patent Your Genes, by David Koepsell.

Common wisdom holds that, at this historical moment of economic upheaval, war, and the broad threats to the relative homeostasis of our natural world (including from climate change and modern pandemics), the deliberation of law and policy occurs under a firm utilitarian mandate to maximize welfare with the inexact tools of government.  As political instruments, patents and copyrights are the utmost in means-to-an-end: “a highly pragmatic invention”, David Koepsell calls intellectual property rights, not entirely as a compliment.  In his newest book, however, Koepsell argues for a holistic reexamination of an increasingly far-reaching policy—the issuing of human gene patents.  His analysis is not limited to economic arguments for or against our current intellectual property regime.  Rather, he interjects with a question that many brush-off in the heated debate about scientific intellectual property: “is the current treatment of DNA as intellectual property consistent with its nature?”

The artificial, pragmatic nature of patent law makes it a fruitful policy realm to debate,  and the economic importance of patents make the system an attractive one to optimize.   This is a point made by many who argue that our current system of intellectual property protections is broken.  Koepsell goes a step further, however, in his philosophical analysis of gene patents and their relationship to justice.  Patents, because they have no status in natural law, must be judged solely by their economic effectiveness.   That does not mean, however, that patent protections are disconnected from a more fundamental notion of justice.  Gene patents, Koepsell argues from several philosophical and legal perspectives, actually “tend toward injustice”.

Koepsell provides historical context for intellectual property laws, and his treatment of gene patents is a useful primer on the subject.   He firmly argues that, pragmatic considerations or no, DNA sequences are not patentable because they are not intellectual property.  Even individuals who disagree with his philosophy cannot deny, as Koepsell demonstrates, that patents on human DNA sequences are a haphazard policy created without real political discussion.  In reality, they have were born largely of rulings by the judiciary, without legislative debate.  Because of the novelty of biological technologies, the judicial branch and society-at-large have been side-swiped by the collision of intellectual property and basic biology, and Koepsell writes that the results of this unpreparedness are increasingly shocking.  The ability of universities and companies to patent genes is a reflection of the blunt fact that “under most legal systems you do not own your body as authoritatively or completely as you own, for instance, a tennis racket or car.”

I predict that the accessible philosophical theory in Who Owns You will resonate with biologists, in spite of the utterly pragmatic operation of modern biomedical science—focused (as it should be) on delivering products and, even in the academy, profits.   True, biologists might not need an education in the ontology of DNA but, if they wish to have a place in the debate over intellectual property, they desperately need to be reminded that though the laws they investigate may be universal, the laws that govern our society are artificial and, by definition, suboptimal.

Indeed, as is painfully obvious in the evolution of biological patent jurisprudence, policy is often outpaced by science. Though a useful point of discussion, the fundamental significance that Koepsell gives to “genes” already seems a bit outdated. Technology developed since the genome and HapMap projects is delivering a much more complicated picture of how the molecules that make up our cells and bodies go about their business—providing a much larger potential pool of patentable material than was known even a few years ago.  If patenting DNA sequences is ontologically perverted, what about patents that cover other molecules and fundamental biological processes? This year’s Nobel Prize in chemistry, revealing the structure of the ribosome is, for all intents and purposes, locked up in patents.  Patents covering signaling molecules relevant to disease are no less a part of ourselves than DNA. And yet, as patentable objects, they blur the lines between universal biological entities and the artificial pharmaceutical designs that Koepsell and others accept as legitimate intellectual property.

The debate over patenting biological discoveries is so fascinating because it lies at the very intersection of controversial and emotional discussions such as economic growth and public health policy, social justice and privacy. It is all too easy to characterize the disagreement over intellectual property law (especially patents) as and elite feud among wealthy corporations, tech-savvy researchers and legal policy wonks.   Koepsell makes an extensive argument that gene patents should be recognized as a social justice and human liberty issue, yet still this leads to uncomfortable assertions. He qualifies his carefully argued grievances about bio-patenting by stating that, as an issue, it is “not comparable in scale to debates over civil rights leading to the abolition of slavery, or the civil rights laws of the 1960′s”. Such a “non”-comparison is no such thing; by staking moral ground somewhere below the largest dilemmas our society has confronted, Koepsell leaves the reader wondering how they should order gene patenting among their moral outrages.  Channeling ethical concerns over gene patenting is work of a more political sort, but Who Owns You provides a real philosophical foundation to anyone interested in the debate—including scientists who often consider (wrongly, I argue) the realm of legal and political philosophy outside of their purview.

Book: Who Owns You? The Corporate Gold Rush to Patent Your Genes, by David Koepsell.  Wiley-Blackwell, 2009.

The Obama administrations’s Office of Science and Technology Policy has extended the deadline for comment about new rules requiring the results of government-funded research be available to the public.  These rules will, most likely, undercut the current system of research journals, which make money by charging both authors and readers (subscriptions run in the thousands of dollars).  The Electronic Freedom Foundation has weighed-in on the issue, calling public access “so blindingly, obviously good that you have to wonder why it hasn’t already been implemented.”  At Techdirt, Mike Masnick, who writes about the economics and politics of new media, says of science journals: “It’s a great scam, and they don’t want it to end.”

Open-access journals have come into their own recently; some of the titles from the Public Library of Science (PloS) have even broken even, showing that quality, peer-reviewed journals can operate with an open model.  However, as I wrote a few days ago, there is a spectrum possibility when it comes to “public access”.  Public repositories such as PubMed Central provide access to publications (i.e. text, figures, and supplementary data that is included in the original paper).  As research becomes more data intensive, the real challenge is going to design systems to hold extremely large data sets, and provide the public access to that data in the form of useful, interpretable “information”.

Among other things, the healthcare debate has revealed to a large audience that our attempts at shaping the drug market are a cats-cradle of contradictory regulation.  A short history: Academic scientists who research future drugs are well aware of the Bayh-Dole Act which, in 1980, enabled researchers to patent and profit from taxpayer-funded innovation.  It was a bold attempt to encourage the movement of ideas from universities into the marketplace, where they can benefit society.   Meanwhile, the same federal government, cognizant that patents are actually monopolies designed to boost drug prices, realized that this effect must be mitigated to keep healthcare costs down.  In 1984, the Hatch-Waxman Act enacted regulations to encourage generic-drug manufacturers (representing the competitive threat that patents were meant to address in the first place) to contest the original patents in court.  How would the government get generic manufacturers to challenge the brand-name patents?  By promising the generic manufacturer a second round of protection from competition in the event it wins the dispute.  Today the Federal Trade Commission releases its new report, complaining that brand-name and generic drug manufacturers have found a profitable loophole by entering into agreements to avoid fighting over patents in the first place.  The proposed remedy?  The FTC wants to enact new legislation, making these anticompetitive agreements (over patent monopolies) illegal.

Michael Kinsley’s “Cut This Story!” is a must-read for anyone who writes (or reads) in 2010.  The article, in this month’s Atlantic, offers the latest diagnosis on the decline of print media: the excessive wordiness of traditional newspaper articles.  Long, comma-laden sentences, once useful for providing context in the slow, print-only world, now only distract from the the modern, networked reader’s main goal: extracting useful bits of newsworthy information.

Kinsley writes of the print-journalism trade, but in his description of the modern information-seeker, he identifies a general problem yet unsolved by internet technology.  People and software become better and faster at searching through data–articles, databases, images–but accessing that data is still like using a glorified card catalog: entering in a search term, finding a set of web pages that might be relevant, and then wading through content to find an answer.  The goal of computer scientists is to turn the internet into an intelligent research librarian, able itself to sift through information to answer questions directly.  The so-called “semantic web” promises to transform the way we interact with information, especially in fields like the life sciences, where the research community has been side-swiped by a flood of interdisciplinary data coming from new technologies.  However, for the semantic web to become a reality is going to require a revolution in the way scientists and others share data that is currently proprietary, and, even among government-funded academics, the incentives for opening up such data are still missing.

Many talk about the “disruptions” to media, commerce and communication caused by the online, computerized world.  Compared to the advanced information network represented by the semantic web ideal, however, our current internet seems fairly tame.  Today, new knowledge is still mainly transmitted in media forms that would have been largely familiar in 1990, except in quantity and access speed.  In science, freely available, web-only journals are a recent innovation, but the fundamental medium of the journal article has evolved little since the middle of the 20th century, if not before.

Simply put, the semantic web is (or will be) “semantic” because information content is tagged in such a way as to organize and connect it with other related information.  The intent is to embed these content descriptions in a standardized way that is both intelligible to humans and also efficiently interpreted by computers.  It is meant to be a broad movement and guiding philosophy for anyone who wants to put information online and make it useful for future “semantic” applications (such as intelligent, interpretive search engines of the future).

For science, the semantic web promises to solve the barriers in communicating the overwhelming abundance of data that is produced from modern technologies, such as ultra-high-throughput DNA sequencing.  Ideally, it will provide a way for scientists to knit together large amounts of data from different projects in a way that other researchers will be able to query through it, asking questions and receiving intelligent answers.  And, because well designed semantic tags should slice through jargon, the semantic web will be ideal for nonspecialists–for instance, non-scientists who wish to investigate pharmaceutical interactions or climate research.

Tim Berners-Lee, the internet pioneer and semantic web visionary, wrote in 2001 of the enormous change in the scientific publishing model represented by the semantic web.  An important consideration is that semantically-tagged content is only as useful as the careful knowledge curation that goes into building it:

The concept of machine-understandable documents does not imply some magical artificial intelligence allowing machines to comprehend human mumblings. It relies solely on the machine’s ability to solve well-defined problems by performing well-defined operations on well-defined data.

Thus, building this new information network requires experts to input their data into pre-established semantic frameworks, where new information about molecular interactions or genetic traits can be read by database software itself.  At the least, this process would add a new computer-readable component to traditional journal articles.  More likely, it would provide a way to share information that would eventually side-step journal publication completely.  Berners-Lee predicted that the semantic web could based, at first, on traditional articles but would evolve to a model that is decentralized and side-steps the current process of journal publications:

Papers that include this new mark-up language will be found by new and better search engines, so users will be able to issue significantly more precise queries. More importantly, experimental results can themselves be published on the web, outside the context of a research paper. So a scientist can design and run an experiment, and create an emerging web page containing the information that he or she wants to share with trusted colleagues.

As traditional publication loses importance, new questions about data integrity arise: how do you peer-review data incorporated into the semantic web, or otherwise ensure trust?  Just as significantly, it adds layers of complexity on assigning attribution to research data.  Academic scientists judge each other on the quality and quantity of the journal articles they produce.  In the scientific world, journal publication is the standard for scientific success.  If science is to benefit from the futuristic information environments promised by the semantic web, which relies on the prompt and full disclosure of data analysis, it is going to require sufficient incentives for individual investigators to contribute.

New incentives or mandates will be necessary to overcome the increasingly burdensome task of preparing highly complex research findings for machine-readable databases.  Formatting findings to be machine-readable might be feasible in the case of a small-scale study of the interactions or regulation of a single molecule or complex.  But what about experiments using new technologies that is based on tens of thousands (if not millions) of new pieces of information, such as the analysis of a whole transcriptome?  Who is going to curate this information for the semantic web?

There is an even more fundamental issue regarding the full release of raw data, and it must be resolved before data-intensive findings may be incorporated into the semantic web.   Currently, biomedical researchers often amass data from a number of sources–both small-scale and large-scale–before summarizing, analyzing and communicating it in the form of the journal article.  Currently, in many fields, it is common for a research paper might be based on gigabytes (if not terabytes) of data, but in a the journal article this data, after extensive computer processing, is condensed into several graphical figures and text.  Since they don’t fit into the traditional format of a journal article, the original raw data become de facto proprietary–in some cases merely because there is no established clearinghouse for it.  Such a situation is becoming increasingly common–just last week, I was attempting to compare new deep-sequencing data to similar, large datasets summarized in recent publication.  The recent (government-funded) publication, however, had no link to their original data.  Sure, I could email the lead author to get access to the data, but then they would know what I’m working on before I get a chance to publish.

Not providing a way to access the primary data behind a publication runs counter to the policies of most funding agencies (e.g. the UK’s Wellcome Trust), but in the situations I’ve encountered, it was not likely that the authors or journal were acting particularly malevolently.  Even in 2010, it is logistically difficult to post many gigabytes of data on public servers.  Moreover, most scientists are accustomed to submitting journal articles with 3-5 figures containing gels and microscopic images (and perhaps video) as the data supporting their claims, relying on their peers to trust their analysis.  Submitting raw digital data (whether from deep sequencing or high-resolution microscopy) is a new paradigm for accountability that diminishes, if only superficially, the author’s authority.

One way to ensure that new forms of data are available (and eventually incorporated into semantic-based information structures) may be with a centralized, government mandate.  The past few years have seen new rules requiring government-funded research to be freely available to the community within a certain time-frame after publication.  The Obama administration is currently drafting new requirements for the public release of government-funded research data, as part of its general initiative to open access to government data.  However, the current federal effort is still focused on ensuring public access to traditional publications, an effort that began a few years ago at the NIH’s PubMed Central.

As the U.S. Office of Science and Technology Policy puts it in a recent invitation to comment on publication access policies: “Access demands not only availability, but also meaningful usability.”  Organization of new research knowledge into semantic-web repositories represents the future of “meaningful usability”.  Will government be able to mandate that scientists contribute data to the semantic web, when that effort simultaneously disrupts the traditional publication process on which reputations are based?  To get the research community to take full advantage of the semantic web and related knowledge-organizing technologies will require a total rethinking of the incentives for knowledge sharing–one that replaces the rewards currently conferred when a peer-reviewed article is accepted for publication.

In a post last week, I was critical of the Connecticut Stem Cell Program, a 4-year-old fund for research grants that was cut out of the current budget proposal.  My main criticism was that $10 million/year and an ad-hoc oversight board are not sufficient to justify the praise and hopes directed towards the program by state politicians–such programs are a distraction from the task of rebuilding the Connecticut economy.  The larger issue, however, is whether states competing against each other to offer research incentives is really the best use of tax revenue in general.  A new essay in the Chronicle of Higher Education argues that investing in technology research is a risky game for states, and that the federal government should step in and increase research funding in their place.

The article, written by three professors from the University of Michigan, describes the declining state-funding of research universities, and the need to return to a more centralized model for expanding education and innovation.  States, originally the beneficiaries of the federal land used to build the great “land-grant” universities (including UConn and the Connecticut Agricultural Experiment Station), are currently slashing costs like student aid and capital investments.

Why is state funding for higher education disappearing?  The shocking budgetary situation in most states has resulted in cost-cutting throughout public programs.  The authors point out, however, that local investment in research is also inherently risky:

The model of state-based support of graduate training made sense when university expertise was closely tied to local natural-resource bases like agriculture, manufacturing, and mining. But today’s university expertise has implications far beyond state boundaries. Highly trained and skilled labor has become more mobile and innovation more globally distributed. Many of the benefits from graduate training—like the benefits of research—are public goods that provide only limited returns to the states in which they are located. The bulk of the benefits is realized beyond state boundaries.

Any state politician claiming that high-tech research incentives will resurrect our local economy is in denial about the risks of these investments.  It takes much more imagination to devise state programs to improve less tangible things like infrastructure and lifestyle–investments that will stick around and attract the high-earning employers and employees that the Nutmeg State so desperately wants.

Bono, the lead singer of U2 (and the leading anti-poverty sunglasses model), has little apparent connection with biomedical patents.  However, featured prominently on the Times Op-Ed page last week was his version of the 10 ideas most likely to “change our world” over the next decade.  Number 2?  Enforcing intellectual property rights. Many people probably wonder why that seemingly simple priority is the slightest bit controversial (I used to be one of them).  This confusion is rooted in the pervasive, often unconscious, and wholesale embrace of the role of the state in enforcing claims to ideas and knowledge.  Indifference toward our government-imposed model of intellectual property has enormous implications for the status of knowledge, the relations between government and industry, and the future of a technological society.

Photo: David Shankbone

Maybe I’m taking Bono a bit too seriously.  (In all honesty, I haven’t really thought of him much since my days as a 14-year-old Achtung Baby fan).  In spite of his many good intentions, his status as an official, though occasional, Times Op-ed writer has seemed like an embarrassing attempt at hipness by the paper.  At least the Times hasn’t run an entire issue dedicated to Bono’s causes, as the UK’s Independent did in 2006.  From any reasonable perspective, the argument he makes about enforcing intellectual property rights is cringe-worthy, and reveals a surprising lack of political sophistication from someone who regularly meets with world leaders.  Claiming, as he does, that we should model a music-sharing crackdown on China’s internet censorship techniques, by encouraging the government to “track content” as it attempts to do with child pornography, is downright scary.

Scholars of law and society have said it before, much more eloquently, but our collective attitude toward the way our government administers knowledge and ideas is simple: indifference.  This contrasts starkly with many other issues that get people riled up: healthcare legislation, global warming, red-light cameras, terrorist investigations, vaccinations.  Even (or especially) among the tea-party masses supposedly surging up in a populist roar, it is clear that a large portion of our society cares about way the state treats them, and has some notion of their ideal government.  If the issue is guns or estate taxes, different groups are readily massed to debate the benefits and evils of government regulation.

Except among an echo chamber of legal and tech nerds, however, intellectual property is one gigantic role that government has carved out for itself that no one else really seems to notice, or care about.  As Bono points out, technology has brought huge changes to the ways that knowledge and technology is created and disseminated.  He fails to point out the equally gigantic power the government has taken, with surprisingly little public outcry, to protect those who would be considered “special interests” in any other political battle: copyright and patent holders.

There are several factors that have led to this situation, but the blame lies with the public itself.  There has been excellent PR on the part of those that benefit from lengthy copyrights and patent tangles–content owners, attorneys and other powerful institutions.  And, as imperfect and irrational beings we, ourselves, are confounded by this thing called intellectual property.  In the context of copyrights, James Boyle terms it “cultural agoraphobia”: a natural human tendency “to undervalue the importance, viability, and productive power of open systems, open networks and nonproprietary production.”  (For more, read his excellent book, The Public Domain).  He and others have also pointed how difficult for us to determine ownership, if any, of knowledge and content that flow as easily as bits, since we still mostly among physical property.

This is not a diatribe against the government’s role in maintaining a system of intellectual property rights.   However, I’ll give my own prediction for the next decade’s “big idea”: unless the public asks much more serious questions about how intellectual property rights are created and enforced, those who profit from them will see to it that our government expands to their aid, at an incalculable cost to all of us.