A Half-Baked Idea for Patent Extraction Rights

     I have written before about my disdain for patent law and the notion of intellectual property in general, but today I thought I'd share an idea I had a few years ago while thinking about the issue of patenting living organisms, which yesterday's post reminded me of. The idea is to create a new kind of property right which would hopefully establish an economic interest in maintaining biodiversity while encouraging basic research.

    But first, let me start with mineral rights, at least as they are handled here in Alberta. When you own land here, you do not actually own the rights to the minerals under it. Those belong to the Crown, which is one of the ways our government generates income, by charging royalties to the companies that want to drill for oil. That doesn't completely cut out the landowner, though, because to get to those minerals, you usually need to go through the landowner's property, and that often involves a fee.
     Now, this got me to thinking about a possible structure for biological patent rights. Under the current system, you go out and do some research and when you find something novel and useful about some organism, you can apply for a patent and there you go. It's as if an oil company could just go out and look for oil wherever they wanted, and then file a claim for the exclusive right to drill when they find it, without ever having to deal with landowners.
     So what if there were the genomic equivalent of a landowner, someone who owned not patents on an organism or its DNA, but the right to apply for such patents? So, for example, suppose I own the patent extraction rights for the genus Taraxacum, and the various species of dandelion. I don't necessarily own any actual dandelions, just the right to apply for patents on them. Then, if some pharmaceutical researcher discovers a medically useful protein in a dandelion leaf, and wants to patent it to bring a profitable new drug to market, they need to talk to me and work out a licensing arrangement: I will license them to apply for the patent in exchange for a flat fee, or a share of their profits, or whatever we agree on.

     What's the point of this? Well, the owner of the patent extraction rights would be economically motivated to do two important things: conservation and research. If I own the patent extraction rights for Taraxacum, I can now demonstrate an economic interest in preserving the species, which means I can have standing to sue someone who puts them at risk, and claim real damages. This internalizes an externality, as the economists say. Secondly, it's now in my interest to do and publish basic science about Taraxacum, because it boosts the chances that someone out there will recognize a patentable use for the plant, which could turn into a lucrative license arrangement for me.
     Consider also the issue of indigenous peoples and their traditional lore about the plants they've used for generations. At present, a scientist can go learn from the locals how they use this plant to treat this disease, take a few specimens back to the lab and reap the benefits of a patent on it, even though most of the actual work in discovering the plant's use was done by someone else. But if the patent extraction rights for these species were vested in the indigenous peoples themselves, they would have a way to share in the profits derived from their knowledge, as well as a justiciable property right in preserving their ecosystem.
     Arguably, the patent extraction rights to the human genome should be vested in the Crown on behalf of all humanity, and used to ensure that all patents on life-saving therapies are licensed on terms that do not exclude any humans who need the therapy.

     So there is my crazy half-baked idea, thrown out there for all the world to consider. Please accept my invitation to criticize it mercilessly in the comments below.

Ignorance of the Law is no Excuse: Refuting Another Paranoid Chain Letter

     Yet again I find myself responding to one of the inane Facebook memes that appears in my feed. The text of this one reads:

Why did the US government

invent and patent EBOLA

Patent number #CA2741523A1

SWINE FLU

Patent number #8124101

The AIDS cure

Patent number #5676977

The CANCER cure

Patent number #6630507

Seems like they are trying to

cause an epidemic, making us Ill,

then keeping us sick...

     Wow. So much wrong. Let's start, first, with ignorance of the law. Patents are a form of intellectual property designed to encourage inventors to come up with new stuff. See, the problem with inventing is that if you have a great new idea that makes people's lives better, the only way to keep other people from using that idea is by not telling anyone about it, which kind of makes it hard to make money by inventing. You can maybe make things using your idea and sell them, but if you do that there's a good chance someone else will figure out how you did it, and then who'll buy from you? And even if you do manage to keep your method a secret, when you die it's lost, which is good for nobody.

     So patents are a kind of temporary legal monopoly on new ideas. In exchange for filing an application with the patent office, which includes a complete explanation of the invention and how it works, you gain the exclusive right to use the idea for twenty years. (This varies with jurisdiction and is sometimes amended by statute, but the exact length of time doesn't matter for this explanation.) If someone else uses  your idea during this time, you can sue them, and of course the fact that you've published a patent means it's fairly easy in principle to establish whether or not they actually used your method or came up with some other process. (It doesn't matter if they independently came up with your method all by themselves; the fact that you were the first to patent it gives you the legal monopoly, and too bad for them.) So you have 20 years to make as much money as you can from your brilliant idea, and then the patent expires and anyone can use it without having to pay you anything.

     What does this mean for patents on EBOLA, SWINE FLU, The AIDS cure and The CANCER cure? Well, first of all, it means that all of these patents are by definition public knowledge. When you patent something, you tell everyone else how to do it so they can do it for themselves when the patent expires. If you had a bioweapon form of Ebola virus or swine flu, the very last thing you'd want to do is patent it. You'd want to keep it as secret as secret can be. So the fact that someone has patented these things means it's completely ridiculous to think that they're planning on using them to make us sick. I think patents are an inefficient kludge that may cause more harm than good, but the basic principle of what a patent is kind of makes it impossible for them to be evidence of a grand plot by the evil gubmint to make us all sick.

     Okay, so maybe the author of this forward didn't know what patents are and how they work. Lots of people don't, and that's okay. But that doesn't excuse the sheer idiocy of their paranoid rantings. I mean, if you're going to make claims about patents and what they mean, the least you could do is go and look up the patent itself. Let's do that now.

Ebola: Ebola virus causes a nasty and very frequently deadly hemorrhagic fever that's killed nearly 2,000 people in the 2014 outbreak in West Africa. It's scary, to be sure, but scientists studying it tell us that it doesn't actually spread all that easily and we shouldn't be panicking. Scientists at the Centers for Disease Control have managed to isolate and characterize specimens of the virus, and as often happens, they've taken out a patent on it. (A patent doesn't mean they invented the virus; it just means they claim to have discovered its genome in a meaningful way so as to make further inventions, such as a vaccine, possible.)

     A lot of labs, including those at the CDC, routinely file for patents on things they find that could be economically useful. That doesn't mean they plan to make money off it, though. Bear in mind that the job of the CDC is to control the spread of disease, a task they might find considerably harder and more costly if some big drug company manages to patent a treatment. So by pre-emptively patenting the virus itself, any cure based on the virus will be subject to the CDC's patent rights, so the CDC can negotiate with whatever private company finds a cure, in order to keep them from charging unreasonable prices for it.  So, I am not in the least bit worried about the fact that the CDC might hold a patent on the Ebola virus, although I am still more than a little uncomfortable about the idea of patenting life-forms. But more on that in another post.

Swine Flu: Swine flu was not invented by anyone, but patent 8124101 is for a genetically modified version of the naturally-occuring virus which was developed to improve the efficiency of preparing flu vaccines. I, for one, think that flu vaccines are a splendid idea, and I get mine every year, courtesy of Alberta Health Care. While I don't have to pay out of pocket for the vaccine, my government does, so I'm really rather pleased to learn that this patent was assigned by its inventors to Mount Sinai School of Medicine, St. Jude Children's Research Hospital, and the United States of America through the Secretary of Agriculture, and not some for-profit pharmacy corporation. 

AIDS: Another thing to remember about patents is that the invention doesn't actually have to work to be patented. Patent 5676977 is titled "Method of curing AIDS with tetrasilver tetroxide molecular crystal devices", which sounds awesome until you realize that being able to kill HIV in a test tube isn't necessarily all that helpful for curing AIDS. You can kill the virus by boiling it in chicken fat, too, but that's not a very helpful discovery when the virus you're trying to kill is lurking within the living cells of a human patient.

     Two more crucial details about this patent. First, it's not held by the U.S. government at all, but by Antelmen Technologies Ltd. of Providence, Rhode Island. Presumably Antelman hoped the discovery would be profitable, and I don't know, maybe it has been. But that's kind of moot, because the patent was filed May 31, 1996, which means that it's pretty close to expiry, at which point it becomes fair game for anyone to start making molecular crystal devices with tetrasilver tetroxide and go cure AIDS with it all they want. 

Cancer: Oh, man, this one annoys me. See, I'm not an oncologist or a microbiologist, so I'm by no means an expert, but I have undergone successful (so far) surgery and chemotherapy for a Stage III cancer, and I've learned just enough about cancer and how it's treated to be able to recognize when someone knows less than I do.  Talk about a cancer cure is dangerous nonsense, because cancer isn't a simple, single disease. It's a whole category of diseases which have one thing in common: cells dividing when they're not supposed to. The human body has hundreds of different types of cells, some of which are supposed to divide and some of which aren't, and there are thousands and thousands of ways their DNA can get screwed up to produce a cancer-type disease. Some of them can be cured, some of them cure themselves, and some of them will kill you dead. We're learning lots about how cells work, and amazing progress has been made (hey, I'm alive, as of this writing), and maybe we'll have cures for all of them some day, but anyone who says there is "A cure for cancer!" is smoking something.

     And I mean that literally. Lately I've seen a lot of talk about cannabis as a cure for cancer, usually from people who are enthusiastic about marijuana. Now, personally, I'm all for decriminalizing pot, mainly for philosophical reasons (I've never tried the stuff, myself, and was never tempted to, even when I was on chemotherapy), and I think it's probably very useful medicinally, especially for cancer patients. It's supposed to be good for suppressing nausea, for one thing, and I can attest that chemo can really get you puking. It may even be effective for directly treating some cancers.

     But, as I said, there is almost certainly no such thing as A cure for cancer, and I strongly suspect that some people are vastly inflating the promise of cannabinoid drugs for the ulterior motive of Freeing The Weed. And indeed, that seems likely if you actually read patent 6630507, for "Cannabinoids as antioxidants and neuroprotectants". It's not a "cure for cancer"; it's potentially a treatment for a particular set of conditions which are sometimes associated with cancers.

     And yes, the patent is assigned to the U.S. Department of Health and Human Services. What does this mean? Not much, as long as cannabis remains illegal, making research into its properties inconvenient at best. Maybe the evil gubmint is holding onto the patent so it can sue stoners for patent infringement if the weed is freed? Doubtful, but I have heard that one of the side effects of marijuana use is paranoia.

     Explains a lot, actually.