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 Jonas 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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49 comments

  1. Steve Sailer

    Thanks.

    By the way, John Fitch’s descendant, race car driver Jon Fitch, invented one of the great road safety devices of all time: those garbage cans filled with gradually increasing amount of sand they put in front of bridge abutments and other things that would kill you if you ran into them full speed. Fitch the Younger came up with the idea after the 24 Hour of Le Mans race when his driving partner flew into the stands with their magnesium Mercedes. The intense fire killed about 70 spectators.

    I don’t know whether Fitch got a lucrative patent on his idea, but if he did, he earned it: to refine his invention, he’d crash himself into it, much like Colonel John Stapp would ride his famous rocket sled at up to 632 mph to prove that pilots could survive the wind when ejecting from a jet fighter.

    Stapp did much to popularize automobile seatbelts. As a famously brave man who had personally subjected himself to numerous rocket sled impacts to test safety restraints for pilots in crashes, his testimony that it wasn’t unmanly to wear a seatbelt in an automobile has some influence.

    Reply
    1. JCC

      Stapp also helped popularize Murphy’s Law while working with the engineers at Muroc Army Air Field (now Edwards Air Force Base) who came up wth that Law while working on the ejector seat.

      It seems to me that the USPO is a prime example of Murphy’s Law.

      Reply
  2. TomR

    A country with strong patent-lawyering is not going to be a manufacturing and exporting power. A manufacturing will go to countries with little patent-lawyering, to avoid:
    1) Getting sued and paying legal fees
    2) Stopping the factory work by patent lawyers, because of some patent.
    3) Being unable at all (no license from patend owner) or having it financially uviable to produce products that are not patended in less patent-based countries. Eg. if some product is not patentable in India and Kenya, but patented in US then it makes sense to make it in India to sell on both India and Kenya markets.
    A factory located in a country with little patent-lawyering has infinite flexibility of manufacturing everyting what’s possible internationally, thus achieving benefits of scale. With eventual licensing just for products sold to countries requiring licensing, while being price-competitive on markets not requiring licensing.

    Reply
  3. Ignacio

    Charpentier is one of the founders of CRISPR Therapeutics AG and in a google patent search with ‘CRISPR’ yields that 85% of CRISPR patents have been assigned to this company followed by 15% to Bayer. So it seems she might be benefiting for her discovery. I don’t know exactly how the angry litigation about CRISPS has gone if it has already ended but so far it seems the USPTO is granting patent rights to Chardenier’s company and to the UC as well for applications developed by Douzna in this institution.

    To be sure, something like the application of the bacterial DNA editing tool in eukariotic cells involves more that two people with contributions in earlier stages, even if Doudna and Charpertier deserve a lot of merit for being the first to demonstrate the potential for genome editing in eukariotic cells. Zhang has it’s own role on this development but I cannot tell what exactly.

    Patenting a methodological tool is something that I personally dislike but so far such kinds of patents in reality do not put a brake on research and CRISPR is being used widely and worldwide.

    Reply
  4. KLG

    As a biochemist/molecular cell biologist, this was the hoped for but surprising outcome for me and many of my colleagues. Eli Broad (rhymes with road), namesake of the Eli and Edythe L. Broad Institute of MIT and Harvard, is a Koch “cousin” with a particular jones for charter schools. MIT and Harvard are, well, themselves (apologies to the proprietor).

    Reply
  5. DA

    I think you’re being unfair to Zhang. He is a serious contributor to this field, not some interloper with business acumen. You can’t blame him for MIT having better lawyers. Universities (I work for one) simply can’t afford to compete. That MIT has an unseemly approach to patenting discoveries, absolutely. But is it Zhang’s fault? Assessing precedence in scientific discovery is famously unscientific. The committee acted up to inject itself into a wider societal debate in humorless, drab Scandinavian fashion. They wanted to show that, just like they left women out when they would have deserved to share, they can now leave men out. Among users of the technique (of which I am one), I suspect that most were surprised at Zhang’s exclusion, similar to Bob Gallo in the HIV Prize few years back. As for the technique itself, it should be named “genome carpet-bombing” not “genome editing”. Very useful for research, but as far as practical applications, for the foreseeable future it will only contribute to further crapification of the food chain.

    Reply
    1. Michael Olenick

      I’ll defer to the Nobel Prize Committee to parse who did what. They’ve botched it in the past but don’t strike me as the two wrongs make a right type.

      I’ve read some of the cases and the appellate judges don’t sound all that sympathetic to Zhang but the rules are what they are and, in my opinion, they’re wrong.

      Surely you know that inventors are required to sign off on patents personally as part of the process. Zhang could and should have followed Nancy Reagan’s advice to Justy Say No to a patent solely in his name. He didn’t.

      Reply
  6. Dr. Strangelove

    Yves and Michael,

    I don’t know the particulars of this case, but you may be overlooking abject incompetence on the part of UC Berkeley’s intellectual property office. I used to license technologies from universities while working at a biotechnology company. Those offices aren’t usually where the best and brightest go. Trust me. Based on this experience, somebody may have been asleep at the IP wheel.

    Reply
  7. farmboy

    Bill Dreyer invented the amino acid sequencer while at Caltech, one of his grad students digitizied it and poof , stole his idea. He also could’ve easily won the Nobel Prize for the discovery of DNA, but the coolest project he worked on to me was how cells differentiate in the zygote, precursor to epigenetics.

    Reply
    1. KLG

      For a deep-in-the weeds detour…

      The history of automated protein sequencing is a bit more complicated than that, though Dreyer was the pioneer:
      https://en.wikipedia.org/wiki/Leroy_Hood
      https://en.wikipedia.org/wiki/William_J._Dreyer
      Hunkapiller always seemed to be the real instrumentation genius to outside observers.

      There is some conversation about what might have become epigenetics as understood today in the Caltech archival interview with Dreyer in the linked pdf.

      Hood and Carruthers could eventually win the Nobel for DNA synthesis instrumentation…

      DNA (nuclein) was discovered by Freidrich Miescher (1884-1895), who purified it from the nuclei of white blood cells harvested from pus-filled bandages. I doubt Dreyer had anything to do with that.

      Reply
      1. farmboy

        Dreyer was doing the same, identical work Watson and Crick were doing at the same time, just another serendipitous occurrence as it were.
        Hood’s “invention” made Dreyer and Caltech’s patent worthless, Caltech made the decision not to pursue court action so there’s that.

        Reply
        1. farmboy

          Watson taking LSD to enhance his ability to “see” the helical spiral is my favorite part of the story. Dreyer really didn’t care about the money or the credit, but the science. He turned down SunGene iirc before they were bought by BASF because they wanted him to work on increasing the sugar and carbohydrate content in corn for ethanol.

          Reply
          1. KLG

            I’ve read much on the history of the discovery of the double helix (not the discovery of DNA). I don’t remember Dreyer (1928-2004, Wiki) ever coming up, but I don’t have the books at hand. Maybe he did this while he was an undergraduate at Reed College? Or before he went to graduate school? The one-page paper in Nature that won Watson & Crick the Nobel Prize was published in April 1953 (and yes, if Rosalind Franklin had lived until 1962, the Nobel Committees would have had to separate the DNA prize into Chemistry plus Medicine /Physiology to include her along with Maurice Wilkins). Dreyer received his PhD from the University of Washington in 1956, after which he began his independent scientific career. His first published paper seems to be one with Hans Neurath in 1955. Neurath was a faculty member at UW and probably Dreyer’s PhD advisor? Neurath was a leading biochemist for a long time and editor of the American Chemical Society journal Biochemistry for 30 years after its start in 1961.

            It was Crick, not Watson, and the LSD story was published in the Sunday edition of the Daily Mail only after Crick died in 2004. After that, it took on a life of its on in certain circles. The Daily Mail can be a fun read, but…While LSD was known to MI6 and the CIA and their psychiatrists in 1952-53, it is highly unlikely Crick had access to it for such casual, recreational use then. There is some evidence Crick used LSD in the 1960s, but this “Francis Crick was tripping on LSD and that is how he came up with the double helix” story has the same credibility of the much more familiar story that “Albert Einstein was a dunce in school.” He wasn’t, but it makes parents feel good, sometimes, for a while.

            Reply
            1. farmboy

              Dreyer was at the NIH when Caltech offered him a full tenure at the youngest age of anyone at Caltech. IDK when Dreyer expounded on the double helix, there are interviews of Dreyer in archives at Caltech that might elucidate and some info at the Smithsonian.
              Leroy Hood, Gee I didn’t mean for that to happen. Dreyer stayed close to Hood, very proud of his protege.

              Reply
  8. Alternate Delegate

    Obligatory message from the future: All kinds of intellectual property claims are wrong and will be eliminated.

    I know this view is not widely shared here. It is, however, correct.

    Reply
    1. Michael Olenick

      That’s kinda’ what I was getting at. And what Jefferson seemed to think way back when.

      I mean, not all IP but a lot of IP is ridiculous. Copyrights that last 75 years after the death of the author. An ability to trademark web-based businesses when you know somebody else owns the URL. Awarding patents to the first person to show up to the patent office and, until recently, defining “obvious” as the first to file something with the patent office no matter how obvious something actually is. The system has run off the rails.

      Somebody above pointed out that UC patent lawyers suck. And I have no doubt that’s true. But it shouldn’t matter how good or bad your patent lawyers are when it’s clear who actually invented something.

      Reply
      1. Alternate Delegate

        Ah, but I do mean all IP …

        As you know, the writers of the US Constitution tried to eliminate all of the old monopolies that had been basically ways for the King to shovel money to his cronies. But they made a tragic exception for patents and copyrights.

        They tried to neuter it with that word “limited”, but all limits have been blown away.

        For a reason. The reason is that ownership of the means of production has become less and less reliable as a means of control, as the productivity of our tools has increased. That is a statement about Industrial Capitalism, but (notwithstanding current developments in the stock market) our true overlord Financial Capitalism continues to need industry, as a parasite needs its host.

        So today the ownership of “intellectual property” replaces ownership of the means of production as a means of control. And is more convenient for the financial sector anyway.

        But the golem has clay feet, which is that information can be replicated at negligible cost. Unlike, for instance, machines and energy. Meaning that information is free.

        Any future alternative to capitalism will need to question and limit all kinds of property. But in particular, it will need to abolish “intellectual property” altogether. That serves only rentier interests.

        I know people who work with CRISPR, and who are part of the broad scientific consensus that, although Feng Zhang made some contributions, the Nobel Committee is completely correct about who invented CRISPR, and the US Patent Office is incorrect.

        Nevertheless, I do not want Doudna and Charpentier to have the patent. I don’t want anyone to have the patent. CRISPR belongs to the world.

        Here is where everyone piles on me and beats the crap out of me. But I’m serious. There are all kinds of productive things you can do for a living. But invention and art and science and writing and creativity are not that sort of thing. They are not a living. They are a contribution to humanity, but they are not a living. You don’t get money for them.

        Fixing a software bug is a useful service and you can get hired to do that; the code belongs to the world. Performing live music is a useful service, and you can put out your hat for money; but the recording belongs to the world. Perhaps we will have to go through Universal Basic Income to get there, but this is the future.

        Reply
        1. J.

          > Here is where everyone piles on me and beats the crap out of me.

          I completely agree with you. I would support a short patent period to reward the original inventor, maybe 10 years, but inventors of things get ripped off anyway by manufacturers waiting out the patent period and then making the invention.

          I am sure Doudna and Charpentier received public funding. As such the public should own their work, not the university that employed them.

          Reply
  9. chuck roast

    Dean Baker has done much to address corporate patent scams. Here is a short paper on intellectual property and inequality.

    Is Intellectual Property the Root of All Evil

    If you are mildly insane, you can hop on the way-back machine and investigate Proudhon’s assertion that property is theft. And on you go to Marx and The Poverty of Philosophy. Now there is a controversy that you can wrap your head around.

    Reply
  10. Skip

    Inventors I know would take issue with some of the assertions in this article, among them “…Which is pretty much how the system has worked since it was invented.”

    It’s difficult now to write on patents, painting broad strokes. The diversity of knowledge and challenges of addressing advances in evolving, often arcane fields does not lend to absolutes.

    But the patent system was fundamental to America’s industrial success and to its scientific advances, including by universities, and to America’s long dominance of Nobel prizes, including by scientists not tied to major companies. And in particular to the success of small entities that didn’t start out well-heeled. Part of the deal for a period of protection was making discoveries public so others could learn from them, build on them. The antithesis of trade secrets.

    I believe people quick to tar the patent system as symbolic of the worst of capitalism either deny or are unaware of the challenges facing small entities and individuals, including the massive challenge of capital formation, which reliable patents gave opportunities for. And the challenges of keeping their advances from being stolen or suppressed by dominant corporations that do not want their market share challenged by upstarts, whether or not the upstarts have better ideas. For most of our history we had a unique system protecting inventors by allowing them to establish they were the first to invent, not just the first to file – the latter is a courthouse race favoring wealthy companies with legions of lawyers – allowing patents to serve inventors as both sword and shield. Sadly, such protective features have been whittled away.

    This is not to say the patent system has always operated perfectly in the past. The Big Money has always had its advantages. But little people could still get into the game. If their forte didn’t include running a large company, they could license their creations. They could stop foreign/international companies who stole them at the border, when the US market was of greatest importance to the growth of new companies.

    Now, tragically, the patent system has been thrown under bus, much of the destruction achieved during the Obama administration, which finally put through changes similar to some sought by the Clinton administration. Many in Congress chose not to wrestle with the complexity and just took the campaign contributions, finally passing in 2011 the Leahy-Smith “America Invents Act”, its name striking a blow for irony.

    The big problem with patents now is that the Big Money has achieved its goals on changes that enable large companies to game the system, including within the Patent Office, which has been turned into a labyrinth, tying up inventors with legal challenges, including to patents that have issued, to snuff the worth of their patents. Many inventors are forced to give up or go bankrupt from the legal fight. Or they are delayed from putting their inventions to practical use until they are obsolete and/or companies have found ways to steal their inventions and adequately change their appearance. Fracturing patents is fine with many big corporations that would prefer to just go with trade secrets. Not long ago, a number of inventors burned their issued patents in front of the patent office, some of them having shut down their businesses after their patents were rendered worthless. So much for capital formation.

    Much of the innovation in the US has come from smaller entities. Ironically the destruction of a viable patent system was achieved with the complicity of big companies, some of which started out in garages, who would have gotten nowhere if not for their patents. As behemoths, they decided to pull the ladder up after them. If we don’t undo the destruction of traditional and core concepts of patents, then we’re going to see the crumbling of large swaths of innovation in this country. It will happen over time and the cause won’t be obvious to the vast majority, but it will happen nonetheless. And it will further impoverish us.

    Reply
    1. John Wright

      I wonder if the small guy has ever had much protection in the patent arena.

      One famous case is Edwin Armstrong vs RCA on the frequency modulation (FM radio) patent.

      https://en.wikipedia.org/wiki/Edwin_Howard_Armstrong

      “After his death, a friend of Armstrong estimated that 90 percent of his time was spent on litigation against RCA”

      Then there is the United States own behavior in the early years:

      https://foreignpolicy.com/2012/12/06/we-were-pirates-too/

      “But the Americans had no respect for British intellectual property protections. They had fought for independence to escape the mother country’s suffocating economic restrictions. In their eyes, British technology barriers were a pseudo-colonial ploy to force the United States to serve as a ready source of raw materials and as a captive market for low-end manufactures. While the first U.S. patent act, in 1790, specified that “any person or persons” could file a patent, it was changed in 1793 to make clear that only U.S. citizens could claim U.S. patent protection.”

      The Wright Brothers also spent much time defending their patents.

      https://en.wikipedia.org/wiki/Wright_brothers_patent_war

      Note that one very significant patent (the junction transistor) was licensed inexpensively by AT&T.

      https://www.computerhistory.org/siliconengine/bell-labs-licenses-transistor-technology/

      “Morton advocated sharing this transistor technology with other researchers and companies because Bell Labs and its parent AT&T could benefit from advances made elsewhere. So during the 1950s they sponsored three gatherings at which other scientists and engineers visited Bell Labs to learn the new semiconductor technology first hand. Held in September 1951, the first meeting specifically addressed military users and applications.”

      “In April 1952, over 100 representatives from 40 companies that had paid a $25,000 patent-licensing fee came for a nine-day Transistor Technology Symposium, including a visit to Western Electric’s ultramodern transistor manufacturing plant in Allentown, PA. There were participants from such electronics titans as GE and RCA, as well as from then-small firms like Texas Instruments and Sony.”

      As someone told me years ago, a patent owned by a small guy is simply a license to sue (if a large corporation wants to use it without compensation).

      Reply
      1. Jeremy Grimm

        The “small” guy did once have protection in the patent arena … although ‘small’ isn’t quite as small as I believe you have in mind. There was a time when someone of wealth — mere wealth not the super-wealth of today — could protect a patent and start a small business. That was back in the day when there were more small businesses, we protected our “infant industries” from the incursions of foreign competition. Those days are not entirely mythical. A patent always was nothing more than a right to sue and the courts then were as just and uncorrupted as they are today — although it probably cost considerably less to buy “justice” back in the day.

        I agree with Skip that patents have benefited Society … back-in-the-day … but no more. As Skip suggests the patenting process and patent rights have been bent, twisted, and crapified to the benefit of Big Money. Even the inventing process has been crapified. Intellectual property agreements and associated claims on the thoughts and creations of employees — whether those employees were hired to invent and given labs or they were hired to assemble circuit cards. Patent and Prize mania at Universities has done much to close-down the sharing of ideas. I remember hearing stories about the day Bell Labs at Murray Hill started putting cypher locks on their laboratory doors and collegiality turned into suspicion.

        The post hinted at the declines in the quality of patents granted with reference to IP protections for rounded rectangles and page numbers. Patents disclosing new art are increasingly hidden in a stacks of patents on minor improvements and trivial art. A device like a desktop printer can be protected by close to a hundred patents many of which seemed to me less patents of utility than of obvious mechanical design little different from the art protected by another hundred patents on some other similar desktop printer.

        I believe the patent literature contains some of the most important information that must be preserved for after the collapse. The crapification of utility patents complicates and needlessly expands an already problematic task.

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    2. Diogenesdc

      Excellent analysis by someone very knowledgeable, who obviously has thought deeply about the subject. I assume this is not the first time the author has written on this.

      Reply
          1. Jeremy Grimm

            Thanks — I was also referring to Skip’s comment via your comment. I am not an expert on patents but I have dabbled a little with trying to read them and become familiar with how to find out how things work.

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    3. monday1929

      I have recently abandoned prosecution on three patents for devices which stop the spread of airborne illnesses. Working in that field for over 15 years. The Jr. examiner who rejected one of them had rejected 43 of the first 45 patents he had examined. Another examiner could not comprehend the difference between filtration efficiency and pressure drop.
      All three devices were entirely new to the world and would have reduced illness and death during current pandemic. I have obtained multiple patents in the past but have decided not to throw any more money away on patent lawyers, although mine was great.

      Reply
      1. Jeremy Grimm

        I have only looked at U.S. patents, chiefly to learn the workings of devices I like [I enjoy tearing things — like old printers — apart]. Just out of curiosity — have you investigated pursuing your patents through applications made in another venue — Japan or Europe? The value of patents in the U.S. is limited by the crapification of the process and protections … and also by how little would be produced in the U.S.

        Reply
      2. Skip

        Part of what happened with universities, which used to be a bulwark protecting the integrity of the patent system, was that after the narrow defeat of Patrick Leahy and Orin Hatch backed legislation in the patent wars of the ’90’s, (after a number of Nobel laureates suddenly rose up against it), companies like Microsoft started funding university chairs. For some odd reason academic literature started to appear pushing for changes coincidentally in line with the big corporations, also in line with the positions of the US Chamber and the National Association of Manufacturers. It was only a matter of time.

        In the Clinton era, the big pitch, including from his patent office, was to be like Japan, then much admired in the corporate world. Through Japan’s patent office, a half dozen or so Japanese companies kept a vise grip on innovation, often controlling markets with cross-licensing. New blood went nowhere without those companies’ sanction, or absorption. American companies trying to get Japanese patents or to defend against the theft of their intellectual property got the treatment of being surrounded by multiple, thinly sliced patents, known as sashimi patents, tying up companies with impossible challenges until their inventions were obsolete or invented around, or they licensed on terms acceptable to the Japanese conglomerates.

        In 2011 I interviewed Paul Michel, the former Chief Judge of the US Court of Appeals for the Federal Circuit, the judicial turf charged with patent cases. He was so alarmed by the Leahy’s “America Invents Act” that the prior year he resigned his lifetime appointment to sound warnings on the bill, to no avail. Michel told me he could guarantee that if he went into private practice he could hold up any patent for almost a decade in post grant proceedings, it would never reach trial in district court. He also told me that to make the complexity of the new laws even remotely feasible there’d have to be another hundred judges and another thousand patent examiners, not happening with a PTO starved of funds after years of Congress raiding patent fees.

        So I’m certainly in accord with Jeremy Grimm’s assessment of the crapification of patents. And I am sorry to learn of Monday1929’s encounter with a patent office where there is now a perfect storm. His abandoned prosecution is the tip of the iceberg of this country’s loss of important ideas because of a system that’s become dysfunctional.

        The pendulum has to swing hard and fast, with stronger and affordable protections for smaller entities. Not holding my breath that Congressional champions will arrive able to achieve that. Monopolies are alive and well here, and not fond of competition.

        So, Japan Inc., here we come.

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        1. skippy

          Seemingly the sphere is wrought with complexities some might like to ignore, per se a huge nexus of competing influences with in the public and private spheres which have back drops into social organization.

          Leonardo da Vinci comes to mind, more a refiner than an original thinker, that had to learn how to both fit in socially and how to pander to investors.

          But then again I remember all the inventor shows on MSM with capital in the wings, where their bargaining power and networks determined both the worth of the idea and its percentage.

          The gel strip on razors is a good analogy to this observation.

          Reply
  11. Generalfeldmarschall von Hindenburg

    The whole idea of CRISPR is worrisome to many because of its potential for abuse or epic catastrophe. Because we all know that anything coming out of corporate labs is thoroughly and COMPLETELY tested, right? On the contrary, we’ve already seen game amateurs doing ridiculous things with the tech.
    The I <3 Science crowd trots out the obligatory Mary Shelley reference and then waves it away with an airy sniff. "We're just so far beyond that now". Because in the capable hands of our corporate benefactors, mistakes are impossible. Mendacity unthinkable. After all, nuclear power turned out just great.

    Reply
    1. Alex Cox

      The author’s delerious excitement over CRISPR – crops in the desert! Perfect children! – disturbs me much more than who patented the thing.

      Reply
  12. Adam Eran

    One patent fight not mentioned: Fred Koch discovered the processes that best turn crude oil into useful products. He patented them, and built refineries all over the world to use his processes, founding Koch industries in the process. He even built refineries for Stalin and Hitler. Koch hated the Soviets and loved the Nazis, even hiring a Nazi nanny to raise his kids (no, not a metaphor, she was literally a member of Hitler’s party). So…she raised kids slightly to the right of Atilla the Hun.

    Fred Koch’s disgust with government stemmed from his encounter with the Rockefellers in court. They started using Koch’s processes in their refineries, but refused to pay him patent royalties. He sued….and lost!

    A little later Koch found out the Rockefellers bribed the judge in the case. Koch re-sued and won, but it forever altered his attitude toward government… And so Charles and David Koch spent $189 million in 2016 (the “left” in the person of George Soros spent $27 million) on political projects.

    Gosh, I wonder why the Overton Window has moved so far to the right?

    Reply
      1. John Wright

        I was curious about this as well.

        Here is a possible link:

        https://www.npr.org/2016/01/19/463565987/hidden-history-of-koch-brothers-traces-their-childhood-and-political-rise

        “Charles and Frederick, the oldest sons, were put in the hands of a German nanny who was described by other family members as just a fervid Nazi. She was so devout a supporter of Hitler that finally, after five years working for the family, she left of her own volition in 1940 when Hitler entered France because she wanted to celebrate with the Fuehrer.”

        Charles was born in 1935 and the non-politically active, and estranged from his family, Frederick was born in 1933.

        How much ideology can a nanny impart to a young Charles Koch when she lost contact with him after the age of five?

        Reply
    1. Jeremy Grimm

      I found a Wiki entry for Fred C. Koch that offers some details about the art he patented: [https://en.wikipedia.org/wiki/Fred_C._Koch]:
      “In 1927, Koch developed a more efficient thermal cracking process for turning crude oil into gasoline which allowed smaller players in the industry to better compete with the oil majors. The larger oil companies quickly sued in response, filing 44 different lawsuits against Koch, and embroiling him in litigation for years. Koch was to prevail in all but one of the suits (which was later overturned due to the fact that the judge had been bribed).”

      The Wiki entry goes on to describe how Fred Koch helped Stalin set up refineries in the Soviet Union. Fred Koch became unhappy with that after Stalin purged several of Koch’s Soviet colleagues.

      “Koch President and COO David L. Robertson acknowledged that Winkler-Koch provided the cracking unit for the 1934 Hamburg refinery, but said that it was but one of many “iconic” American companies doing business in Germany at the time.”

      If I were looking for famous patents cases to demonstrate that all was not well I would look at the patent case between Xerox and IBM or the patents case about the ball-point pen, or the patents cases around the laser. I don’t have links but my access to search engines is not unique.

      Reply
  13. skippy

    And here I was sorta joyful about Jennifer Doudna and Emmanuelle Charpentier award on the face of it ….

    Oh well … humanity via science progresses one IP at a time or so it would seem … frickin libertarian and neoclassical synergy where ***everything*** is a market.

    Reply
    1. Jeremy Grimm

      I believe you should remain joyful about their award.

      As for the patents issue described in the post, it never clarified the extent to which Jennifer Doudna and Emmanuelle Charpentier or Feng Zhang had patent rights they could claim. I suspect this is more a matter of UC Berkeley versus Harvard and MIT rights. I also suspect more than a few graduate students and post docs may have contributed key ideas to the discoveries and refinements to CRISPR. They have most probably been compelled to sign away any patent rights in order to have a job in the lab where the work was done. The dubious benefit that Universities enjoy from their patent rights is another question, along with questions about who actually supplied the funds that made the discoveries and their development possible — I suspect the U.S. taxpayers may have been helpful.

      Reply
  14. Palaver

    If a problem needs two lawyers to solve, it’s a job protection program for lawyers. They argue, generate paper, take salary and post to the GDP. Though, one wonders on the usefulness of stalemates.

    When the law requires two inventors to solve a problem… Now there is an innovation on progress itself! But America is run by lawyers for lawyers and the country has suffered for it. The patent system serves lawyers first and foremost. Just a tool in their belt for their corporate reindeer games.

    Reply
  15. Bijou Smith

    Zhang and his ilk cannot really control ideas and inventions. There is nothing but the law preventing individuals from using CRISPR themselves. Just as “pirating software” is a joke, so is “pirating intellectual property”, only a change in law is needed to turn “pirating” into socially beneficial activity. It is always a choice of government to allow predators like these patent holders to exist, profiting from (mostly) public funded science research.

    The whole concept of “intellectual property” is nonsense, it is a giant scam run by capitalist interests. No one can own my thoughts. When the law prevents me from turning my thoughts into tech, because of some prior patent, the law is stifling innovation, and such law can be changed, all it requires in votes in parliament.

    Reply
  16. Jason

    According to this piece by The Conversation, the duo started their patenting process at about the same time they submitted their paper to Science. Zhang had his paper and patent application months later but the lawyers on the Board Institute side did the work to get the patent application accelerated.

    Why would this timing suggest to the author that one side was worrying about science and ethics, while the other side was worrying about dollars?

    Reply

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