A couple thoughtful comments on my "tree frog" post yesterday. From Dennis Hamilton:

Iinteresting.

I think the objection is specifically to foreign patents on natural products.

The easy example is a US company telling Asian farmers that they can't continue to grow seed crops for a local staple because there is a US patent on that plant and cultivating fertile ones found in nature is an alleged infringement. I don't know how apocryphal the story is, but it is something that would certainly piss me off if I was a local and its government.

Without more details of the tree-frog case, it is hard to know whether and where that crosses the line. If foreign patents are used to penalize a traditional medicinal use as an infringement, I think we are in exactly the same case.

I'm not sure about the theft angle, unless a company's people start smuggling tree frogs. As for tit-for-tat, that sounds like a good idea.Have local researchers patent the dickens out of all the local folk medicine and uses of critters from native habitats. Protect indigenous use. Cross-license for favorable availability of non-native biologicals and pharmaceuticals. Form cartels. By all means.

In-so-far as the theory of bio-piracy is a defensive response to overbroad foreign patents being used to attack locals from doing what they have done for generations, it sounds perfectly reasonable to me. But my understanding

i
s that it is being turned into an offensive attempt to get a cut of the profits. This, again, isn't bad in itself--it depends entirely on what theory of ownership is being asserted. I do think something more sophisticated than "our ancestors discovered it, so we own it" is necessary here. Perhaps part of the problem comes just from the rights being asserted by political actors--they are not accustomed to formulating precise theories. They are experts instead in exerting power--a very blunt instrument.

Which makes a nice transition to Jackson's blog comment on my post. He notes that I have accidentally made a good argument against the entire patent system... all invention is discovery.

This issue did pop into my head as I was writing my initial post, but I decided not to deal with it right then. It is certainly true, at one level, that my two-year-old, scientists, inventors, ordinary people, tribes and every other sort of social organization are all engaged, alike, in learning about the world and how it works. It is all discovery.

As fond as I am of the big picture, I do think that it can leave out useful distinctions. Invention is a form of discovery, but it is a particularly difficult, useful, resource-intensive form. And this is even before one gets to the problem of how to turn an invention into something that can practicably be distributed at a reasonable price to millions of people. There is a difference between saying one ought not to be able to patent something that is obvious, a law of nature, and so on, and saying that one ought not to be able to patent anything at all.

Maybe at some level of conceptual abstraction that difference is philosophically difficult. But it is practically useful. There are areas where patents are causing some problems--tech, for example. But in pharmaceutical and biotech, they do seem to be working, and very well at that. There has been a particularly significant uptick in research since the U.S. patent system was improved in the 1970's. Coincidence? Possibly. Possibly not.

One final clarification: this seems to come up pretty frequently in comments on PFF posts, so I will mention it briefly here. We seem to be assumed to be defending a maximal view of intellectual property, and patents in particular. In fact none of my colleagues strikes me as belonging in that camp, including me, which is why we filed a brief in KSR v. Teleflex, are working on patent reform, and so on.

I'd like to return for a moment to the problem of indiginous peoples, without pausing to check my spelling. Let's say we have a world in which there are no patent concepts at all . . . are they then better off? In the absence of rights and defined limits on those rights, resources tend to get allocated by power. Raw, pure power. Splat.

posted by Solveig Singleton @ 10:56 AM | Comments from Readers, International, Pharma

Link to this Entry | Printer-Friendly | Email a Comment | Post a Comment(0)