Latest Nobel Prize in Chemistry Demonstrates How the US Patent Office Screws Inventors

Yves here. Aside from the Patent Office abuse, it’s also a sign of the times that such fundamental technology as CRISPR has been privatized at all. Recall, for instance, that Joseph Salk did not patent the polio vaccine.

By Michael Olenick, a research fellow at INSEAD @michael_olenick, www.innowiki.org

Congratulations to University of California Professors Jennifer Doudna and Emmanuelle Charpentier for winning the Novel Prize for the invention of CRISPR gene-editing technology. For those not in the know, CRISPR works as a word processor for DNA. Don’t like a gene where it is? Cut it out. Write in a new one. Even copy and paste.

The possibilities of CRISPR are endless. Think of crops that grow in the desert with virtually no water. Genetic disease gone with the ease of selecting and deleting a bad sentence. OK – also think of perfect pets and, of course, designer babies. Want a kid with Brad Pitt’s looks and Einstein’s smarts: step right over here, young couple.

There are also wild drugs: need an antibody to kill off cancer? Or maybe coronavirus? Take a sample, edit away, and zap back in an antibdy that’s as focused and deadly as anybody who ever worked for Meyer Lansky.

CRISPR isn’t there yet but, as the technology evolves, it will be soon enough. Few people dispute that CRISPR is to life what the internet and printing press are to information.

So, these two brilliant professors hold the patent rights to CRISPR for mammals? Nah. That’d be a guy by the name of Feng Zhang at a place called the Broad Institute, some sort of public/private money-making endeavor co-founded by Harvard and MIT. Zhang who, you may ask, and why did the Nobel Price Committee – who (unlike the patent office) kinda’ know what they’re talking about – entire stiff this Zhang?

That’s because, simplifying, while Doudna and Charpentier were working on the science and thinking through the ethics of designer babies, Zhang was thinking of dollar signs. They ran to the lab; he ran to the patent office. It’s not that Doudna and Charpentier didn’t think through modifying animals with their gene editor; they just didn’t submit it to the US Patent & Trademark Office (USPTO) before the science and ethics were thought through.

So Harvard and MIT and Zhang will gracefully share their ill-gotten patents for the pursuit of humanity, especially considering the University of California is a genuine non-profit government-run agency, right? Hell no! What are you, some type of Commie? They’re already running around working to gain “priority” rights to make further inventions likely trying to head off some other skank running to the USPTO, kinda’ like they did to obtain their ill-gotten patent in the first place.

This is a good example of everything the patent laws are supposed to discourage and the American patent system run afoul. Which is pretty much how the system has worked since it was invented.

Let’s review where patents are from. Article 1, Section 8, Clause 8 of the US Constitution provides “To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.” That is, Congress is authorized to create intellectual property – which has since blossomed into (mainly) patents, trademarks, or copyrights – to promote the progress of the “useful” arts.

Sensing this might be more useful to lawyers than inventors, Thomas Jefferson was never a big fan of patents. They granted much-dislike “monopolies of invention” for the “benefit of society,” he wrote and courts adopted for centuries. Jefferson backed this up with actions, not just words. As the first Secretary of State he was in charge of issuing patents and was predictably slow about it. There wasn’t a patent office: people wrote to Jefferson directly and he issued patents. For anybody with time on their hands, there are lots of letters on the web with people corresponding with Jefferson asking about their patents.

Jefferson took ages to grant Eli Whitney a patent on the cotton gin despite that Jefferson used it on his own farm. By the time he did it’d been so copied so widely the patent was all but worthless. Jefferson felt bad and, instead, helped Whitney knock off a manufacturing method that Jefferson had seen Honoré Blanc show, during Jefferson’s time in France, where gun parts were interchanged. That led to the invention of interchangeable parts and the “American Manufacturing Method” which is actually French, though I digress.

Besides Whitney, Jefferson also stalled on granting a patent to steamboat inventor John Fitch. There is no question Fitch invented the steamboat: he gave rides to the Continental Congress and operated the first commercial steamboat service. When pressed, Jefferson eventually granted the steamboat patent to four people, two of whom never even tried to invent a boat. Some say the delay caused Fitch’s steamboat business to fail though others point out Fitch’s boat was so loud and smoky he had to offer passengers free sausages and beer to gain customers. Fitch also impregnated his lead investor’s girlfriend, while the investor was on a trip abroad looking for investment capital, which probably didn’t help company morale.

All of which brings us back to the notion that the US Patent & Trademark Office has never been an especially popular place with the American public.

More recently, besides depriving two brilliant women inventors of one of the most important discoveries in history, the USPTO has also done some iffy things to extend intellectual property rights. They were comfy with IP for rounded rectangles (here’s looking at you, Apple) and page numbers (West Publishing). I had my own run-in with the service when a business trademarked a domain name I’d owned for years, for a business they were running entirely online, then pushed to enforce their rights. The USPTO thought this process – called reverse cyber-squatting – was just fine.

Needless to say, this doesn’t do anything to promote the progress of science and, more often than not, does the exact opposite. Genuine inventors are forced to waste money and time obtaining defensive IP (I’ve done this myself, too). There are countless patent, copyright, and trademark trolls who exist to do nothing but interfere with and extort money from people engaged in honest commerce. This latest blow, by Zhang & the Gang, is especially low.

It looks likely there will be some major changes to the US government soon. There’s no question that the issue of monopolies and antitrust will come up. While working on that, Congress should make some time for a complete overhaul of the USPTO. And, maybe, issue an apology to Doudna and Charpentier that the process ever ran so far off the rails.

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