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CAUT Bulletin Archives

September 1999

Gold-Rush Fever Hits as Ideas Become Property

Kenneth Field

Owning the Future

Seth Shulman, Boston: Houghton Mifflin, 1999; 256 pp; hardcover $25 us.
The knowledge economy is becoming manifest in the burgeoning number of patents being issued for ideas rather than objects. Private individuals and companies are staking claims to large swathes of knowledge that are increasingly limiting the ability of researchers and developers to further the boundaries of knowledge.

Seth Shulman, in this book, provides examples from medicine, agribusiness, biotechnology, pharmaceuticals, and computer technology that illustrate this gold-rush fever to capture knowledge for private gain.

The philosophy behind patent and copyright laws has been to foster and promote the development of new technologies and ideas by providing creators and developers with time limited monopolies on their creations, thus ensuring they receive some reward for their investment of time and/or money in the creative process.

Coupled with this though is the view that in the long term, society as a whole benefits from and builds upon prior knowledge and technologies that enter the public domain, to expand and improve human understanding and knowledge.

However, Shulman shows that granting of patents for broad concepts is having a chilling effect on further research and development as private companies and individuals demand royalties for use of the building blocks of knowledge.

In the areas of medicine and biotechnology the patenting of medical procedures, plant and seed varieties, genes, and techniques for altering the genetic makeup of organisms are particularly threatening to continued betterment of the human condition. Whether it is the eye surgeon who, in 1992 patented a sutureless incision for cataract operations; the agribusiness firm that patented all methods for inserting genetically altered molecules into soyabean seeds; or the biotech firm that patents a specific gene in the human genome; the private ownership and control of the uses of these things discourages their use by researchers and practitioners because there is now a royalty attached to the item or vital scientific information is simply withheld by the owner of the piece of knowledge.

"Private claims to disembodied knowledge assets are increasingly seen as a threat to broad public interests even as they fill individual coffers," Shulman notes. (p. 161)

It's especially disturbing that much of the basic research in the areas of biotechnology and the human genome is being carried out by academic researchers, the results of which are then being patented by either academics themselves or private firms in order that they can reap the monetary benefits of the research funded out of the public purse. Shulman notes:

"The dearth of vocal advocates of the public's stake in both clinical health care and medical research helps foster a land-grab spirit on the intellectual property frontier. Unfortunately, the outcome of this approach does more than drain the public coffers; ultimately it has an adverse effect on the health care the world's people will receive." (p. 52)

In 1980 the U.S. Senate passed the Bayh-Dole Act, also known as the University and Small Business Patent Procedures Act. This legislation is designed to facilitate the commercialization of federally-funded research, occurring primarily at universities, thus providing fertile ground for the new frontier of privately owned broad patents that result from publicly funded research. This small piece of legislation is particularly acute in the clash between private self-interest embodied in capitalism and the concept of public assets held for the public good embodied in a democracy, as Shulman points out. With this law the U.S. government has accepted the argument that productivity gains should supersede the public interest, as may soon be the case in Canada.

Shulman's book is not a scholarly or technical treatise on patent law but a "journalistic account," as the author admits, designed to alert readers to the important issues emerging as knowledge gains in value as a commodity. In this respect, the cases recounted in this book and the commentary accompanying them are timely revelations that should be of grave concern to all of us in the new global economy.

Kenneth Field is Principal of Lady Eaton College at Trent University and a member of CAUT's Executive Committee.