In 1993, Vermont eye surgeon Jack Singer got a letter so annoying that he wanted to slam his fist through his office counter. A lawyer representing one Dr. Pallin of Phoenix informed Singer that every time he removed a patient's cataracts using a certain self-sealing eye incision, he was infringing on Pallin's patent on that incision, and therefore had to drop the technique or pay Pallin royalties of $2,000 to $10,000 a year. Having learned of the incision by reading medical literature and talking to colleagues, Singer was so incensed at this proprietary grab of what he considered communally developed knowledge that he spent much of the next three years fighting the patent.
Ultimately he prevailed, proving that Pallin had falsely claimed credit for an existing technique. Singer did not, however, reverse the practice of patenting medical procedures--and thus left unchanged what science writer Seth Shulman '81, in his new book Owning the Future, calls a "gold rush" to claim as private property many concepts that underlie both the information economy and the broader culture. This chaotic, destructive scramble, Shulman says, "in which excitement and opportunity go hand in hand with a messy, greedy lawlessness," grows from the rising monetary value of knowledge. Consequently, the ideas that shape much of our economic infrastructure are increasingly concentrated in private hands, while, he writes, a "largely unsuspecting public... remains barely aware of the situation."
Lawsuits over patent infringements had become common among medical, biotechnology, software, and other technical companies by the mid 1990s. Even academic researchers were sharing less with their colleagues and sometimes withholding important results until they could patent marketable ideas. Observing the expansion and escalation of such conflicts, Shulman perceived a growing trend toward patenting ideas rather than their applications, and toward privatizing broad concepts instead of discrete innovations. Many recent patents are of the generic variety: someone who builds a mousetrap tries to patent the very idea of trapping mice. Thus a seed company that invented a "gene gun" that can genetically modify soybeans (a widely pursued goal) won exclusive rights not only to the gene gun, but to all soybeans genetically altered by any method.
Others, like the Phoenix eye surgeon, patent concepts, facts, or even natural phenomena in the public domain. Individuals and companies have taken out patents on prime numbers, common strings of software code, plants in their natural state, and genetic material found in remote tribes with unique immunities to disease. Shulman tells of a software company that claims the idea of doing business over the Internet; a doctor who patented, and tried to charge royalties on, the idea of looking for a fetus's genitals in ultrasound images; a drug company that won exclusive rights to collect and patent microorganisms from Yellowstone National Park's geothermal areas; and database owners and electronic publishers who seek to replace "fair-use" copying with "pay-per-view" arrangements--even at public libraries.
Charles Nesson, Weld professor of law and a cofounder of Harvard's Berkman Center for Internet and Society, says Shulman is raising issues "fundamental to our country and its institutions, including Harvard." Amid the chaotic growth of the new information economy, says Nesson, "we've lost the proper balance between private and public interests, and have failed to establish a public commons." Nesson agrees completely with Shulman that Harvard and other universities have reacted to the growing value of ideas by operating increasingly under a business--rather than an academic--model, thus corroding the collegial, open exploration of information that has defined the university's traditional mission. "In cyberspace, the new information economy, and the university, connectivity and openness should be paramount," says Nesson. "Lately we've been heading the other way."
The cure to such ailments, says Shulman, is a reform of patent and intellectual property laws that are failing to cope with the new economic primacy of information. Present laws, he says, are unable to guide us through the murky terrain separating one idea from another; neither do they distinguish well between an original insight and commonly held concepts. As a result, our patent and legal systems support a privatization of knowledge that impedes the flow of information crucial to economic, cultural, scientific, and educational institutions. "When you privatize basic pieces of our intellectual heritage and infrastructure," he says, "you're shoveling awfully close to the taproot."
To protect these roots, he recommends setting aside public-domain information "preserves" in certain vital areas, such as medicine; establishing "zoning" measures that ensure access to certain resources, like reference material; and updating antitrust laws to prohibit "conceptual monopolies" from controlling ownership of particular fields of knowledge.
Otherwise we may end up in a world where even the most essential ideas and concepts are privately held. Two years ago, a patent attorney told Shulman that if you file often enough and long enough, you could probably patent the wheel. Indeed, only a few weeks later, U.S. Patent No. 5,707,114 gave its Connecticut inventor--Shulman has not been able to determine whether he applied as a stunt or for financial gain--exclusive rights to a device with "an annular rim, a central hub and a plurality of spoke portions running between the rim and hub": as the patent's title put it, the "Vehicle Wheel."