It’s time to reform U.S. patent system

Last month, the U.S. Patent and Trademark Office issued its 10 millionth patent. But are all of these patents helping society? The American patent system was designed initially to stimulate innovation, but some citizens now argue that it’s actually hurting innovation, limiting access to technology and promoting unethical areas of research and innovation. These critics are making their voices heard through courtroom challenges, legislative hearings and even street protests.

This grassroots activism might seem strange. After all, the patent system is a highly specialized technical and legal domain, seemingly of interest only to inventors. Why has it become such a controversial site, and what can policymakers and citizens do about it?

When first developed in the late 18th and early 19th centuries, the U.S. patent system was designed to be democratic — particularly in comparison to the European patent systems of the time.

European royal courts bestowed patent “privileges” upon entrepreneurs for a high price. By contrast, the U.S. system issued patent “rights” to inventors. And it encouraged widespread participation in the system by keeping patent application fees low and creating public displays of patented technologies to inspire future innovation.

The U.S. system, in other words, put patents, innovation and entrepreneurship in reach for every citizen. Policymakers thought this would increase innovation, which would produce economic and eventually social benefit.

By many measures, these efforts were successful. Patent application rates grew throughout the 19th and 20th centuries, and in 2017, the U.S. issued over 300,000 patents on innovations ranging from photocopies to solar panels. Indeed, many industries – from railroads to pharmaceuticals – have credited their success to the modern patent system.

This centuries-old system, which continues to this day, assumes widespread public agreement on the idea that stimulating innovation through patents will ultimately benefit everyone. It envisions every citizen as a potential inventor and expects that if legislators and the courts serve the interests of inventors, they automatically serve the interests of the public. And it assumes the public will trust its decisions because the patent system is guided by scientific knowledge and the law.

But the dynamics of the patent system have changed in recent decades. Public health activists have filed lawsuits stating that, rather than increasing access to technology, patents create monopolies that make good health unaffordable and inaccessible for many. In 2013, a coalition of patients, health care professionals and scientists challenged patents covering genes linked to breast and ovarian cancer at the U.S. Supreme Court. They argued the patents had led to expensive and poor-quality genetic tests available only through one company: Myriad Genetics, the patent holder.

Meanwhile, small farmers have organized protests against seed patents, suggesting they accelerate the corporate control of agriculture in ways that are damaging for their livelihoods, for innovation, for consumers and for the ecosystem.

And civil society groups have instigated legislative hearings and media campaigns arguing that patents implicitly provide moral certification for the development and commercialization of ethically controversial areas of research and development. Such campaigns began as early as the 1980s, when environmentalists, animal rights organizations and religious figures challenged the patentability of genetically engineered animals. They worried that by turning these animals into commodities, the patent system would transform people’s understanding of ownership and our relationship with the natural environment.

Patent system officials and lawyers tend to view this activism as seriously misguided. They argue that these citizen challengers lack the expertise to understand how the patent system works: It is a limited domain focused merely on certifying the novelty, inventiveness and utility of inventions. This technical and legal orientation is also embedded in the rules and processes of the system, which make it virtually impossible for average citizens to participate, except by submitting patent applications.

In my 2017 book “Patent Politics: Life Forms, Markets, and the Public Interest in the United States and Europe,” I suggest that these responses from the usual participants in the patent system, as well as the structure of the U.S. patent system itself, are out of step with modern democratic politics.

Citizens are playing a more active role in science and technology policymaking in a variety of ways. They are now trying to ensure that the systems that regulate the development, availability and use of innovation better reflect their values and concerns. For instance, patient advocacy groups have forced their way onto the review panels that distribute government funding for biomedical research, in order to maximize not just scientific but public benefit.

In the case of the patent system, traditional participants miss that the patent system’s scope and structure were originally built with a different kind of public – and public interest – in mind. The country’s founders targeted their patent policies to a small, white and male citizenry. But today, America’s multi-ethnic population is far more critical and makes a diverse set of demands of science and technology policy institutions.

Is it possible to reform the system to accommodate the newly engaged public? Indeed, there is no natural definition of what the patent system is, what citizens should expect of it, or who should participate and how they should do so.

If the U.S. patent system wants to maintain public trust, it has to realize that the 21st-century citizen is quite different from her 18th-century forebears. Possible reforms include increasing opportunities for the public to participate in patent decision-making, allowing more legal and bureaucratic challenges on behalf of the public interest, and incorporating more emphasis on ethical and socioeconomic implications into our patent and innovation policies.

This article provided by NewsEdge.