Is an out of control patent law system slowing growth of green products?
Even to the average lawyer, patent law is a bit of a mystery. I confess, I am a lawyer and it is almost as foreign to me as the practice of medicine. (I image the specialty of patent law in the legal community is like neuro-surgery in medicine.) In any event, I’ve been doing a bit of research on patent law which I haven’t dealt with since I took an introductory intellectual property law course in my second year of law school. My renewed interest in the subject was spawned by some recent research I was doing about corn gluten. I have a friend who is an organic lawn care professional and I also have a relative who is a gardener and entrepreneur who is thinking about selling corn gluten. Since both of them were talking about this product I thought it was worth spending 20 minutes on Google checking it out. I learned, as I am sure you organic gardeners know, that corn gluten is a natural herbicide. (*Corn gluten is a natural powdery by-product of the corn milling process.) The product is completely organic and not only is it a effective weed preventive it also contains a high percentage of nitrogen and is a great fertilizer.
What surprised me about this was not that a corn by-product was a natural herbicide and also acted as a fertilizer; I was surprised that our patent law system allowed a Iowa State University researcher to patent the use of corn gluten as a herbicide. I understand the basic policy behind patent law: to encourage people to expend their time and energy developing new products by rewarding them with exclusive rights to the fruits of their labors for a period of years. This makes sense to me and I think it is generally a good system in most cases, but sometimes it just seems to go to far.
Take corn gluten for example, this is a product that has probably been around for thousands of years. People have used it for a number of different uses, the primary use being feed for livestock. Sometime in 1985, a scientist at Iowa State University is claimed to have discovered that the product can also be used as a herbicide. Shortly thereafter he filed for, and obtained, a patent for the use of corn gluten as a herbicide.
So I’m a little bit torn about this. The lawyer in me says, “well, without the protection of the patent law system Dr. Corn Gluten and Iowa State wouldn’t have any incentive to discover new uses for products and it may have never happened.” The normal person in me thinks, “what the fu@%!, its corn meal mush! How can you patent that?!” I understand the policy from an intellectual standpoint but is seems that in some cases (like this one) it goes a bit too far.
The part about this that I think most concerns me is that I’m not sure if the patent system actually achieves its intended result. At least in this case (and the case of my relative) the fact that the patent exists will likely prevent him from producing and selling corn gluten. I am sure there are several other potential marketers of this product who will be deterred from bringing a environmentally friendly alternative to toxic herbicides to market because they do not have the capital to pay Iowa State licensing fees to sell it.
I guess I’m still not entirely certain about how I feel about this. I guess there is just some part of me that feels like ti is unfair to let someone of exclusive rights to any use of something as common as corn. From a legal prospective, I think the fundamental flaw in our patent law system is that it assumes that the patent holder will do a good job of bring the product to market or finding those who will. That doesn’t always happen and as a result we are deprived of use of a valuable product until the patent expires.
Tags: , law, organic agriculture, organic gardening, organic herbicides
January 28th, 2008 at 3:57 pm
The US patent system is not out of control. The US is the most difficult country in the world to get a patent.
The issues you raise are not straight forward.
Patents in the pharmaceutical industry are absolutely essential. The cost of clinical drugs of a new agent are now approaching 1.3 billion dollars and take 12- 15 years to take a drug through trials. The pharma companies only have 5 years (or less if there is a problem) of a patent to make back their investment. These increases in regulatory costs and increases in competition from generics has reduced significantly the profits of these companies. This is bad as pharma companies put over 20% of their turn over into new R&D trying to develop drugs for you. This is significantly higher than most industries.
In softwear, which is completely industry, the US is allowing patents. Softwear developments are instaneous. There are no clinical trials or expensive regulatory agencies to justify a patent.
You can judge for yourself that there are issues here. But as for a patent system out of control, thats just not true.
September 18th, 2008 at 2:10 am
Philip,
I really agree with some of your points. I was especially interested in your last paragraph where you talk about the fact that the people who hold patents aren’t always the best people that can bring ideas into the world as a consumable product or service. It’s almost as if there is some buffer between ideas and fruition where a lot of patent holders sit. The sad part is that there are probably a lot of world changing ideas in this buffer, and if the right people aren’t doing the right things with them, then we’ll never benefit from them.
My question is- Do you think that the problem is with the patent system? Or do you think it is some sort of societal problem that we can solve together- the problem being connecting the right ideas with the right people who can help to turn them into realized products/services?
October 22nd, 2008 at 4:49 am
Good question. I am not a patent expert by a long shot and do not know a lot about the normative foundation of our patent system other than it is supposedly designed to encourage inventors to disclose their ideas and bring them to market.
But to answer the question, I think that the patent system has gone to far in some respects. However, I think it is probably more of an administrative problem rather than a fundamental problem with our system at large. Simply put, I think they are overwhelmed and approve patents that would receive more scrutiny if the USPTO had the man-power to do so. The end result is that the people that have the capital to prosecute and defend a patent (even if it is a bad one) usually will win.