Patently Absurd

Just posted the thing below at the Washington Monthly site. But I thought I'd post it here too.


There's been alot of concern lately about the prospect that the BlackBerry might soon be brought down by a "patent troll" -- in this case, a small Virginia company, NTP, which holds a patent on wireless email technology and is now suing RIM, the BlackBerry's maker, after it refused to pay NTP a licensing fee.

This Slate piece does a good job of capturing the issues in play, but I'd argue with its contention that the problem is confined to the software industry. In fact, over-broad and possibly invalid patents stifle innovation in a range of fields, and the negative human consequences in areas like bio-technology are more immediate, and perhaps more damaging, than in software.

Take breast cancer research. As we reported in The Monthly last year, one company, Myriad Genetics, holds a patent on the study of a gene, BRCA1 known to cause breast cancer. Women who want to get tested for the gene have to go thru Myriad, and pay a much higher price for the test thanks to Myriad's monopoly. Worse, researchers trying to create a better test, that could more accurately identify BRCA1, routinely receive cease and desist letters from Myriad's lawyers. One scientist at U Penn told me she'd moved on to other projects thanks to Myriad constantly hassling her.

Of course, without the incentive of a patent, companies like Myriad wouldn't conduct life-saving research. But in fact, a consortium of scientists from across the world was working to sequence BRCA1. Myriad's founder, Mark Skolnick was part of that group, and he used the group's work as a foundation before crossing the final hurdle himself. No one doubts that, absent Skolnick's work, the consortium would have got there soon afterwards.

In other words, a crucial area of breast cancer research is now effectively closed off to all but one for-profit company, despite the fact that thier "invention" would surely have soon been developed without them. And just as with software patents, at the root of the problem is a patent system that makes patents too easy to acquire, and gives patent-holders overly broad rights. Tell me how that promotes innovation again.