Public Research, Private Profits
Who Owns Patents on Publicly Financed Technology?
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It's normally considered unfair when a person is expected to pay twice for the same product, but exactly that situation has become enshrined in American law. On the one hand, the public funds research efforts at universities through massive scientific grants. On the other hand, the fruits of that research can be patented by those universities, allowing them to charge hundreds of millions of dollars in fees which are then passed along to the public by the companies which use the technologies.
This wasn't always the case. Before 1980, the government retained ownership over inventions and technology developed through public funds. The government then provided those inventions and technology for anyone to use, royalty-free, by putting them in the public domain. Everything changed with the passage of the Bayh-Dole Act in 1980 which allowed universities to patent and profit from those inventions and technologies.
Supporters argue that under the old system, universities had no incentive to commercialize the technology they developed. Once a profit motive was introduced, or so the theory goes, research and development blossomed and the floodgates of technological research were opened. Supporters also argue that the fees which universities are able to charge provide much-needed funding at a time when public funding is suffering.
Although the second argument may be accurate, it is also probably not very relevant if the first argument is inaccurate and if it leads us to an unethical set of circumstances - which I think it does. Innovation and development of public domain technology is an established fact and the realignment of values which once constituted the core of public scientific research along a model more congenial to business and profit does not bode well for either society or science.
To begin with, it is unassailable that society has benefited greatly from private companies being able to use public domain technology. It might surprise you to learn that your reading this very article is proof of that. The internet exists largely because virtually all computers and operating systems are able to use the exact same basic networking code (TCP/IP "stack") which was developed at the University of California at Berkeley through government funding.
This code, available freely for anyone to use and incorporate into their own work (which they can then patent or copyright and sell for a profit), allows computer developers to avoid having to reinvent the wheel every time operating systems change and progress. No one has to pay any licensing or royalty fees to use the TCP/IP "stack" or any of the other basic system codes developed at Berkeley. Thus, no fees are passed along to consumers who buy modern operating systems that incorporate the code - a fair and reasonable situation since the public already paid to have the code developed in the first place.
Yet matters are very different for technologies developed today. Recently, a lucrative patent for Columbia University ran out so they turned to a strategy that has been characteristic of large pharmaceutical companies: filing a new patent with different wording for the exact same invention. If they succeed, they will continue to reap huge profits (the costs of which are transferred to consumers) in exchange for research that the consumers had already paid for via their tax dollars.
Although such questions of basic fairness are obvious and easy to understand, there are perhaps even more serious ethical issues at stake when it comes to the question of whether the ongoing realignment of values among scientists, researchers, and students in our universities is a good or bad thing. For a long time there has been some division between publicly funded scientific research and private commercial enterprise which made use of that research, but that division is diminishing.
The fact of the matter is, the values which underlie the market are not the same as those which characterize science - thus, when the market intrudes upon science, the latter becomes corrupted. This is particularly true in academia, where the future of science is created and developed.
Corporate research always looks to the bottom line: research is valuable when it produces profits and not otherwise. Academic science values new discoveries regardless of whether they can produce a profit - what's important is gaining a better understanding of how things work. Corporate research requires secrecy in order to protect discoveries, but academic science requires openness so that discoveries can be shared and further discoveries stimulated.
In his book "Science, Money, and Politics: Political Triumph and Ethical Erosion," Daniel Greenberg cites one egregious incident where market-driven values resulted in a horrendous ethical lapse. The University of Pennsylvania contracted with a biotech company to become a leader in human gene therapy. Their work went well until a 19-year-old patient died while receiving a therapeutic gene solution. He was not properly informed about the toxic effects found in other patients, about the deaths of several monkeys who received this treatment, or about the fact that the university, the bio-tech company and its director all had "a financial interest in a successful outcome from the research involved in this study."
In another case, an undergraduate at the Massachusetts Institute of Technology (MIT) could not do an assignment because it was related to corporate work he was involved in privately - he had signed a non-disclosure agreement preventing him from discussing that work. This company was owned by an MIT faculty member and the student's instructor owned a competing firm - as a result, the instructor of was accused of using his homework as a form of corporate espionage!
This is the direction our leading research universities are heading. First they ask the government for increasing grants for the purpose of doing important scientific research. Later, they ask the government to provide them with patent protection over the fruits of that research - protection which is supposed to exist in order to allow those who paid for that research to recoup their costs and make a living from their work.
But who paid for the research? The public. How do the researchers make a living? Through being paid by the public. The patents and the corporate atmosphere they create are unfair, unethical, and antithetical to the basic principles upon which science and academic research are supposed to be based.
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