[author: Kevin E. Noonan]
In his dissent from the majority opinion in Momenta Pharmaceuticals, Inc. v. Amphastar Pharmaceuticals, Inc. (a case have interesting features discussed elsewhere), Chief Judge Randall Rader (at right) opines eloquently regarding the so-called "tragedy of the anti-commons" and the widespread but unsupported idea that patents inhibit innovation (Justice Breyer to the contrary):
The safe harbor provision at issue in this case, due to its origin and purpose in reversing Roche v. Bolar, receives attention as an exception that permits experimentation. This link to experimentation and its role in advancing the progress of technology requires some commentary as well. Too often patent law is misunderstood as impeding more than promoting innovation. This academic proposition, called the tragedy of the Anti-commons in some scholarly presentations, suggests that exclusive rights impede the flow of information and limit experimentation that might lead to the next generation of technological advance. Michael A. Heller & Rebecca S. Eisenberg, Can Patents Deter Innovation? The Anticommons in Biomedical Research, 280 SCIENCE 698 (1998).
In the first place, in an era of empirical research, one might ask the reason that this academic notion has never actually been verified. Although studied, no research has substantiated this alleged attack on the patent system. In fact, "the effects predicted by the anti-commons hypothesis are not borne out in the available data." Timothy Caulfield, Human Gene Patents: Proof of Problems?, 84 Chi.-Kent L. Rev. 133, 137 (2009); see also American Association for the Advancement of Science, INTERNATIONAL INTELLECTUAL PROPERTY EXPERIENCES: A REPORT OF FOUR COUNTRIES 12 (2007) (finding the results of a 2006 survey of U.S. and Japanese researchers "offer very little evidence of an 'anticommons problem'" and that "IP-protected technologies remain relatively accessible to the broad scientific community"). Surveys of academic researchers have revealed that "only 1 percent . . . report having to delay a project, and none abandoned a project due to others' patents." Wesley M. Cohen & John P. Walsh, Real Impediments to Academic Biomedical Re-search, in 8 INNOVATION POLICY AND THE ECONOMY 1, 10-11 (Adam B. Jaffe, Josh Lerner, & Scott Stern eds. 2008), available at http://www.nber.org/~marschke/mice/Papers/cohenwalsh.pdf (citing John P. Walsh et al., The View from the Bench: Patents, Material Transfers and Biomedical Research, 309 SCIENCE 2002 (2005)). In other words, patents on research tools and biomedical innovations do not significantly slow the pace of research and do not deter researchers from pursuing promising projects.
The reason that patents have not been proven to impede more than stimulate technological advance is simple: it does not happen. It does not happen for several reasons. First, experiments advancing technology rarely, if ever, generate commercial value. Thus patent owners have little, if any, incentive to license or inhibit research. Stated otherwise, even if a patent owner wanted to sue or license potential researchers, experiments do not produce income or a source of damages. See id. at 12.
Second, in the modern age of technology, the character of technological advance has changed. The era when the Bell Labs or some other tech center could hire the most promising engineers and essentially invent everything for the world has passed. With the vast specialization of all fields of research, advances in technology require great cooperation. A new product or a new direction in biotechnology or electronics will be produced by cooperation between a professor in Chengdu, China, a young programmer in Bangaluru, India, an engineer at a large corporation in Munich, Germany, a graduate student at Tokyo University, and a team at a small start-up company in Silicon Valley. The patent system can help inform each of them of the other and bring together their incremental advances to achieve the next generation of progress in some tiny corner of human progress.
Thus, patents properly remain a tool for research and experimentation because the system encourages publication and sharing of research results. Disclosure of how to make and use the invention is the "quid pro quo" of the patent grant. See JEM Ag Supply, Inc. v. Pioneer Hi-Bred Int'l, Inc., 534 U.S. 124, 142 (2001). In exchange for disclosure, the inventor receives a limited term of exclusivity to benefit from commercialization of his invention. Without this promise of exclusivity, researchers at corporations would be forced to turn to secrecy as the best protection for their inventions. Even academic researchers may delay publication of results in order to maintain an edge over the competition, Cohen & Walsh, supra at 14, and the race to the patent office helps counteract this tendency toward secrecy by rewarding earlier disclosure. "The information in patents is added to the store of knowledge with the publication/issuance of the patent. . . . [It] is not insulated from analysis, study, and experimentation for the twenty years until patent expiration." Classen, 659 F.3d at 1072. Rather, information shared through patent applications is immediately available for others to build upon. It speeds the progress of scientific endeavor. In other words, the patent system's modern benefits facilitate experimentation far more than any hypothetical inhibition.
"[I]n an era of empirical research, one might ask the reason that this academic notion has never actually been verified. Although studied, no research has substantiated this alleged attack on the patent system."
"[P]atents on research tools and biomedical innovations do not significantly slow the pace of research and do not deter researchers from pursuing promising projects."
"The reason that patents have not been proven to impede more than stimulate technological advance is simple: it does not happen."
"[I]nformation shared through patent applications is immediately available for others to build upon. It speeds the progress of scientific endeavor."
"In other words, the patent system's modern benefits facilitate experimentation far more than any hypothetical inhibition."
The facts cannot be more clearly recited. But "there are none so blind as those that cannot see," or perhaps even more so those who would rather not be confused by the facts.