I have written before about my disdain for patent law and the notion of intellectual property in general, but today I thought I'd share an idea I had a few years ago while thinking about the issue of patenting living organisms, which yesterday's post reminded me of. The idea is to create a new kind of property right which would hopefully establish an economic interest in maintaining biodiversity while encouraging basic research.
But first, let me start with mineral rights, at least as they are handled here in Alberta. When you own land here, you do not actually own the rights to the minerals under it. Those belong to the Crown, which is one of the ways our government generates income, by charging royalties to the companies that want to drill for oil. That doesn't completely cut out the landowner, though, because to get to those minerals, you usually need to go through the landowner's property, and that often involves a fee.
Now, this got me to thinking about a possible structure for biological patent rights. Under the current system, you go out and do some research and when you find something novel and useful about some organism, you can apply for a patent and there you go. It's as if an oil company could just go out and look for oil wherever they wanted, and then file a claim for the exclusive right to drill when they find it, without ever having to deal with landowners.
So what if there were the genomic equivalent of a landowner, someone who owned not patents on an organism or its DNA, but the right to apply for such patents? So, for example, suppose I own the patent extraction rights for the genus Taraxacum, and the various species of dandelion. I don't necessarily own any actual dandelions, just the right to apply for patents on them. Then, if some pharmaceutical researcher discovers a medically useful protein in a dandelion leaf, and wants to patent it to bring a profitable new drug to market, they need to talk to me and work out a licensing arrangement: I will license them to apply for the patent in exchange for a flat fee, or a share of their profits, or whatever we agree on.
What's the point of this? Well, the owner of the patent extraction rights would be economically motivated to do two important things: conservation and research. If I own the patent extraction rights for Taraxacum, I can now demonstrate an economic interest in preserving the species, which means I can have standing to sue someone who puts them at risk, and claim real damages. This internalizes an externality, as the economists say. Secondly, it's now in my interest to do and publish basic science about Taraxacum, because it boosts the chances that someone out there will recognize a patentable use for the plant, which could turn into a lucrative license arrangement for me.
Consider also the issue of indigenous peoples and their traditional lore about the plants they've used for generations. At present, a scientist can go learn from the locals how they use this plant to treat this disease, take a few specimens back to the lab and reap the benefits of a patent on it, even though most of the actual work in discovering the plant's use was done by someone else. But if the patent extraction rights for these species were vested in the indigenous peoples themselves, they would have a way to share in the profits derived from their knowledge, as well as a justiciable property right in preserving their ecosystem.
Arguably, the patent extraction rights to the human genome should be vested in the Crown on behalf of all humanity, and used to ensure that all patents on life-saving therapies are licensed on terms that do not exclude any humans who need the therapy.
So there is my crazy half-baked idea, thrown out there for all the world to consider. Please accept my invitation to criticize it mercilessly in the comments below.