I'd like a patent instead of this piece of parchment.

Photographer: Ander Gillenea/afp/getty images

Patent Law Holds Back Science

Noah Smith is a Bloomberg View columnist. He was an assistant professor of finance at Stony Brook University, and he blogs at Noahpinion.
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One of the biggest stories in science right now is the fight over the Crispr patents. Crispr is a gene editing technique that promises to allow previously unthinkable feats of bio-engineering. It was discovered in stages, like most scientific breakthroughs, by multiple teams working at various universities and research institutes around the world. The final, key advancements were made more-or-less simultaneously by two teams of researchers -- one based in California and led by Jennifer Doudna and Emmanuelle Charpentier, the other based at the Broad Institute in Massachusetts and headed by Feng Zhang.

The two teams will probably split the inevitable Nobel Prize. But they are now engaged in a bitter dispute over the patents. The California team filed for a patent first, but the Massachusetts team was the first to be actually granted the patent, since it filed a fast-track application. Crispr will probably create industries worth many billions of dollars, so lawyers are now preparing for an epic battle.

Meanwhile, supporters of both teams have been vying for credit in the public sphere. Eric Lander, the founder of the Broad Institute and an adviser to the Barack Obama administration, wrote a popular article emphasizing the role of his own researchers, provoking fiery outrage from Michael Eisen of the University of California-Berkeley. Other researchers and some media publications and bloggers have jumped into the fray.

Crispr, which stands for clustered regularly interspaced palindromic repeats, is the stuff of science fiction, though this dispute feels more like something out of the 1600s. In that century, Isaac Newton spent a huge amount of time and effort trying to make sure that he, and not Gottfried Leibniz, was recognized as the true inventor of calculus. In truth, both men had invented it independently at the same time. The bitter dispute sadly prevented the two geniuses from working together and accomplishing even more.

In the wake of that debacle, science gradually evolved a system of peer review. By circulating papers to colleagues instead of keeping discoveries secret, scientists could effectively put a time-stamp on their work. If two or more people made a simultaneous breakthrough -- as happens very often -- they could share credit.

That system turned out to be hugely beneficial for the world, since it allowed scientific ideas to spread. Ideas are what economists call a nonrival good -- once you produce them, they cost nothing to replicate. Peer review, and open science in general, helps ideas propagate freely, increasing the number of people who can use them to create new technologies and boost the welfare of the human race. The basic insights behind technologies such as semiconductors, lasers, nuclear power, global-positioning systems and many medical treatments have been spread by peer-reviewed science.

But now open science, which has worked so well for humanity, is under threat from a parallel institution -- the patent system. One key change was the Bayh-Dole Act of 1980, which allowed universities -- rather than the government -- to retain ownership of intellectual property created with federally funded research. Since that time, the number of patents granted to universities has soared, with the University of California and Massachusetts Institute of Technology leading the way.

Unlike the informal system that scientists use for sharing intellectual credit, the patent system is winner take all. Whoever gets his or her application approved first gets all the money. That creates an incentive for secrecy -- if scientists’ ideas leak out, someone else could file the patent more quickly.

Secrecy is the bane of science, since all really great breakthroughs are actually a chain of small discoveries. Each scientist or team of scientists eagerly reads the latest results from other labs and adds some small but brilliant insights or critical pieces of data, then releases the new finding as quickly as possible for the rest of the scientific community to gobble up. But if billion-dollar patents are at stake, universities -- which end up owning much of the intellectual property that comes out of professors’ discoveries -- have a strong incentive to pressure their scholars to keep new findings and ideas under wraps.

In other words, the intellectual property system threatens to return science to the dark ages of Newton and Leibniz.

This is only the latest concern over the intellectual property system. Economists have been warning for some time that IP laws, intended to foster new discoveries, might end up doing the opposite. Many industry observers believe that patents are holding back innovation in the technology industry. There is even some evidence that the rise of IP might have exacerbated inequality. Worries over the extension of IP laws in the international arena constitute the most valid and important criticism of the Trans-Pacific Partnership trade deal.

So the Crispr fight is just the latest and most troubling sign that the U. S. intellectual property system has run amok and needs some serious reform. Let’s not allow our system of innovation -- the single greatest generator of human progress -- to regress to the dark days of yore.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

To contact the author of this story:
Noah Smith at nsmith150@bloomberg.net

To contact the editor responsible for this story:
James Greiff at jgreiff@bloomberg.net