Patents (by C. Milstein)

Helge Weissig helgew at LJCRF.EDU
Thu Nov 4 19:01:04 EST 1993


The following is a copy of Cesar Milstein's article in the latest "The
Scientist" issue (available via gopher @ internic.net).
..thought this could be a usefull contribution to the patent discussion,
especially in terms of creating a more mature way of discussing the issue.

But beware, Milstein's slightly negative opinion of patents might be
interpreted as being influenced by his past as a graduate student (no
gophering done here, not even a little) ---- (now don't you go and tell me
that humor is immature!!)

helge

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Patents On Scientific Discoveries Are Unfair And 
Potentially Dangerous

by CESAR MILSTEIN

Many of us still remember a time when the idea of taking out a 
patent was far from foremost in our minds. In those days, 
scientists working in universities and government-sponsored 
institutions were driven not by the patentability of their ideas, 
but rather by pure scientific considerations. Patents were rare, 
more an afterthought than a preliminary consideration.

The advent of modern biotechnology has brought about a 
considerable change, so that now, even among the most curiosity-
driven scientists, the question "Should I take out a patent?" 
becomes an issue whenever a new discovery or a new procedure 
becomes experimentally successful. If the scientist in question 
is better acquainted with current business practices, he or she 
may well be tempted to take out a patent even before the results 
of the experiments are certain. Otherwise, there is a very real 
risk that someone else will patent the idea, and that the 
experiments will be used only to validate the other person's 
patent.

Recent developments in connection with the controversies 
surrounding the patenting of DNA sequences go even further. It is 
becoming a matter of high priority for the scientific community 
to take a careful look at the issues involved. A recent 
pronouncement of the International Council of Scientific Unions 
(ICSU) urging the patenting authorities to consider the danger in 
allowing pat-ents of nucleic acid sequences per se is a good 
start in the right direction.

And yet the problem goes deeper. Different countries have 
different concepts in terms of patenting principles--for example, 
first to "invent" (United States) vs. first to patent (Europe); a 
period of grace (U.S.) vs. no disclosure rules (Europe). Worse 
still, lawyers and scientists do not speak the same language or 
use the same criteria: What is an obvious extension of previously 
established facts (as far as scientific judgment is concerned) 
can also be construed as novel (in legalistic terms), and thus 
merit patenting. At the other extreme, leaps in scientific 
knowledge that do not present any obvious practical implications 
today may be the foundation for further developments and lead to 
innumerable patents in the future. Good examples are the 
discoveries of somatic cell hybridization and of restriction 
phenomena in bacteria, both major advances in basic science 
whereby eventual developments could not be predicted and were 
therefore unpatentable. Without these advances, biotechnology 
would not be what it now is.

So, patents are basically unfair. But perhaps they are necessary 
for the development of products that will ultimately benefit 
society. Without them (we are told) companies would not be 
prepared to spend the amount of money required for such 
developments. The new element in this equation, however, is that 
the complexity and multiplicity of overlapping patents in the 
field of biotechnology is creating such havoc that the 
counterargument--that patents are beginning to inhibit the 
development of new products--should begin to be considered with 
the seriousness it deserves. It remains a fact that the specter 
of patents is not only introducing new tensions in the scientific 
community, but also having serious and undesirable effects on 
basic developments that largely rely on curiosity-driven 
research.

Cesar Milstein is an immunologist at the Laboratory of Molecular 
Biology, Cambridge, England.
The Scientist, Vol:7, #21, November 1, 1993

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