Manchester misleads on patents

The IPKat's inbox has been swamped with emails from readers complaining about the Manchester Manifesto. To get some idea of what they've been complaining about, you might want to start with this article, "How science is shackled by intellectual property: Ownership rights pose a real danger to scientific progress for the public good", published in The Guardian on Thursday and written by John Sulston, Sarah Chan and Professor John Harris.

Right: The IPKat is glad that IP folk's view of Manchester (right) isn't as grim as the Manifesto's view of IP

It reads in relevant part as follows:

"The idea of ownership is ubiquitous. ... However, there is a profound problem when it comes to so-called intellectual property (IP) – which requires a strong lead from government, and for which independent advice has never been more urgently required. ...

The myth is that IP rights are as important as our rights in castles, cars and corn oil. IP is supposedly intended to encourage inventors and the investment needed to bring their products to the clinic and marketplace. In reality, patents often suppress invention rather than promote it: drugs are "evergreened" when patents are on the verge of running out – companies buy up the patents of potential rivals in order to prevent them being turned into products. Moreover, the prices charged, especially for pharmaceuticals, are often grossly in excess of those required to cover costs and make reasonable profits.

IP rights are beginning to permeate every area of scientific endeavour. Even in universities, science and innovation, which have already been paid for out of the public purse, are privatised and resold to the public via patents acquired by commercial interests. The drive to commercialise science has overtaken not only applied research but also "blue-skies" research, such that even the pure quest for knowledge is subverted by the need for profit.

For example, it is estimated that some 20% of individual human genes have been patented already or have been filed for patenting. As a result, research on certain genes is largely restricted to the companies that hold the patents, and tests involving them are marketed at prohibitive prices. We believe that this poses a very real danger to the development of science for the public good.

The fruits of science and innovation have nourished our society and economy for years, but nations unable to navigate our regulatory system are often excluded, as are vulnerable individuals. We need to consider how to balance the needs of science as an industry with the plight of those who desperately need the products of science.

Clearly it is vitally important that we continue to protect science and enable it to flourish. Science and the many benefits that science has produced have played a crucial part in our history and produced vast improvements to human welfare. It would be remiss if we failed to recognise the importance of science as an industry and investment in research to national and regional economic development; but against these economic concerns (individual, corporate and national) an overriding consideration must be the interests of the public and of humanity present and future. Science as an industry may be booming, but the benefits of science need to be more efficiently and more cheaply placed in the service of the public.

This is of particular concern in the developing world, where drugs that are routinely available in high-income countries are unaffordable or inaccessible, and treatments for diseases of the poor are simply not being developed due to lack of a viable market. Existing inequities in knowledge capital make developing nations hostage to more technologically advanced countries for their basic health and development needs, and restrict the participation in research that would allow them to redress this imbalance.

For science to continue to flourish, it is necessary that the knowledge it generates be made freely and widely available. IP rights have the tendency to stifle access to knowledge and the free exchange of ideas that is essential to science. So, far from stimulating innovation and the dissemination of the benefits of science, IP all too often hampers scientific progress and restricts access to its products.

The Manchester Manifesto, produced by an interdisciplinary and international group of experts and published today, explores these problems and points the way to future solutions that will more effectively protect science, innovation and the public good. It calls on all interested parties to find better ways of delivering the fruits of science where they are most needed".

The Manchester Manifesto can be accessed here.

The following day, acting with a remarkable degree of alacrity, the Chartered Institute of Patent Attorneys (CIPA) responded as follows:

" ... CIPA has welcomed ‘Who owns science?’, the Manifesto published by Manchester University on Thursday 26 November, but has criticised the authors’ views on patents as ‘ill-informed and misleading’.

CIPA’s vice-president Alasdair Poore praised Manchester University for its attempt to stimulate debate about how science is used for the benefit of humanity. ... “Nobody would challenge their laudable aim of making ‘a difference in the real world as to how science is used, and hence to build a better future for Humanity’. However, some of the authors’ comments on intellectual property ownership – patents in particular – are ill-informed and misleading.

“Contrary to what is stated in the report, ... IP rights do not ‘have the tendency to stifle access to knowledge and the free exchange of ideas that is essential to science’. Publication and knowledge-sharing is at the heart of the IP system. Not only is there a vast amount of scientific and technical information available from patent databases around the world, but the majority of it is not available from any other source.”

The Manchester report criticises the patent system on a number of counts, all of which CIPA repudiates:

• Patents can't be used to prevent a product coming onto the market - if demand for a product is not met on ‘reasonable terms’ then, subject to certain safeguards, anyone can apply to the IPO for a compulsory licence under the patent. The competition authorities can also take action if patents are abused.

• Patents do not prevent universities from carrying out research - acts done for ‘experimental purposes’ don't infringe.

• Patents enable research bodies like Manchester University to earn a fair return from technical applications of their work, so that money can be ploughed back into further research. Manchester has its own technical transfer operation which depends on patents for its success.

• The alternative to patenting university research is that big business would get a free ride - they could use the work of universities to make profits for themselves.

• Publication of patent applications is automatic. The applicant has no choice in the matter if he wants to get a patent. Claims that the IP system inhibits knowledge-sharing are just wrong.

CIPA also accuses one of the report’s signatories, Joseph Stiglitz, of continuing to mislead the public in his claims that human genes and other life forms can be patented. “Back in 2006,” says Alasdair Poore, “CIPA wrote a letter to the New Scientist, correcting Stiglitz’s claims that plants or foodstuffs, such as turmeric and Basmati rice, were being patented. This new report is making similarly misleading claims about human genes, stating ‘some 20 per cent of individual human genes have been patented already or have been filed for patenting.’ That is not true. We said it in 2006 and it’s still true in 2009: no patent system in the world allows that. Patents are granted only to inventions that are not previously known: no innovation, no patent.”

According to CIPA, the Manchester Manifesto also repeats misleading views about access to pharmaceuticals in the developing world, alleging that the global intellectual property regime denies poor people access to drugs. “Without an effective patent system, who would have made the necessary investment to discover and manufacture those drugs?” asks Alasdair Poore. “It’s politics and economics that block access to drugs for the world’s poor, not the IP system.”".

The IPKat feels that the patent professions are perfectly capable of defending themselves, but he wishes that they only had to to so when the attack was properly based.