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The Inventor's Mentor

September 2013

The Road to Hell is Paved with Good Intentions -

Eliminating the Patent System

What if a company patented a cure for cancer that only the very rich could afford? Should the government pass legislation to cancel this patent and make the cure available to everyone? Would society benefit from such legislation?               

This sounds like a reasonable law until you ponder the inevitable unintended consequences.  As the saying goes, “The road to hell is paved with good intentions.”

Let us review the original basis for our patent system. In the pre-patent days, technological innovation was controlled by artisans who were usually organized in guilds – think “trade unions.” Technologies ranging from medicine to metallurgy had their secret recipes that conferred tremendous commercial advantages to their owners. These innovations were jealously guarded and passed on from master artisans to apprentices.

In the interest of sharing this information for the benefit of society, governments decided to grant protection to inventors who published their trade secrets. In exchange, governments granted these inventors the right to exclude others from using or selling the invention for a period of time. Upon the lapse of this time period, the invention would become public domain available freely to everyone. This system benefited the inventors in the short term and society in the long term.

One of the first governments to grant such protection was the Greek city Sybaris located in Calabria, Southern Italy.  "Encouragement was held out to all who should discover any new refinement in luxury, the profits arising from which were secured to the inventor by patent for the space of a year." (This obsession with luxury was transferred to the English language, the words "sybarite" and "sybaritic" indicating opulent luxury and outrageous pleasure seeking.) 

In America, the first patent was granted in 1641 by Massachusetts to Samuel Winslow for a new process for making salt. The first US Congress adopted a Patent Act in 1790, and the first patent was issued on July 31, 1790 to Samuel Hopkins of Vermont for a potash production technique. In the US, the period of protection extends now to 20 years from the date of filing of the patent application.

Nowadays, inventions, especially in the high tech areas and pharmaceuticals, require large teams of highly skilled researchers and billion of dollars in investment. Pharmaceuticals have the additional cost of FDA approval which can be a lengthy and very expensive process which adds to the cost of drugs. Without the incentive offered by the patent systems, venture capitalists would never invest in the research leading to such inventions. 

Going back to the original question, “Should the government pass legislation to cancel this patent and make the cure available to everyone?” one can confidently answer that if this particular patent was annulled, the whole trust in the patent system would be shaken. A chill would run through the research community, freezing all research leading to the cures of other ailments such as HIV, malaria, heart diseases and even old age.  The copyright and trademark system would also be shaken. Movies requiring millions of dollars to be produced would never see the light of day. We would go back to the system prevalent in the Middle Ages when guilds jealously guarded their trade secrets. All communication between researchers would cease. Progress would grind to a stop.

What to do? One could argue that research could be paid by the government. But this argument takes direct aim at our capitalist-driven society, one of the most dynamic social organization systems the world has ever known. The fact that the rich can afford this cancer cure is just typical of the world we live in. The rich can afford to have and do many more things than the poor. Eliminating the patent system would remove the profit motive which is the engine that drives our society toward a better future.

Delivering inexpensive medical treatment to the poor without the burden of the patent system is a hard problem with no easy answer. A possible solution would involve more social programs and government/industry partnerships in which the government would pay for part of the research. In return, industry would make its findings available to everyone at low cost. Would this solution solve the problem of expensive drugs? Possibly. Yet one should always be wary of unintended consequences. "The road to hell is paved with good intentions." 


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        This newsletter should not be construed as legal advice.                                     ©2013 by George Levy