On Tuesday, July 20th, patent law experts from around the country convened to talk about the public’s interest in the patent system as part of Engine’s Patent Quality Week. Moderated by Matthew Lane, the Executive Director of the Coalition against Patent Abuse, the panel included:

·      Kathleen Ruane, Senior Legislative Counsel for the American Civil Liberties Union;

·      Tahir Amin, Co-Executive Director of the Initiative for Medicines, Access, and Knowledge;

·      Jef Pearlman, Director of the IP and Technology Law Clinic at the University of Southern California; and

·      Alex Moss, Executive Director at the Public Interest Patent Law Institute.

The conversation focused on the concrete ways patents affect us all, the role patent quality plays in moderating those effects, and what the public can do to ensure our voices are heard—and interests are served—by the patent system. Here are three big takeaways:

1.     Patents directly affect people’s lives.

Patents give their owners the power to stop others from making or using whatever their patent covers. When patents cover truly new and useful inventions, this protection can spur investment in research and development while creating space to bring new products to market. But it also gives patent owners the power to raise prices or block access to technology entirely. When patents cover things that are old, useless, or uninventive, they can do real harm.  

One powerful example comes from the ACLU’s successful challenge to Myriad’s patents on the genes associated with breast cancer, BRCA1 and BRCA2. As Kathleen explained, Myriad patented the genes and then “excluded every other person in the market from providing tests for the existence of mutations” linked to breast cancer, even those who provided more comprehensive and effective tests than Myriad. That led the ACLU to challenge the patents for claiming products of nature that are ineligible for patent protection under Section 101 of the Patent Act—successfully. The Supreme Court unanimously agreed that human genes isolated from the body are products of nature, and not eligible for patent protection.

The impact of that decision was immediate and concrete: “the day the decision came down the price for the genetic tests to determine whether you had the mutations in the BRCA1 and BRCA2 genes dropped precipitously. It was on that day that many, many more women, many—many more people that believed that they had cancer—were able [] to access the information about themselves that they could not access the day before because of the prices of the tests. And the prices of the tests were directly related to the patents on those genes.”

Patents on genetic sequences impact our access to genetic tests—whether for breast cancer or COVID-19—and thus our ability to evaluate and get the medical care we need.

2.     Low quality patents impede creativity, competition, and access to knowledge.

Low quality patents come in many flavors—among them, broad, ambiguous, obvious, and useless (like those Theranos obtained on technology that never worked).

Jef pointed out that overbroad and uninventive patents work against the system’s goal of promoting progress: “if you grant a patent that's either too broad, or for something that was in the prior art that someone didn't actually invent, you’ve chilled all kinds of follow-on inventions and other people who would be working in that space.” For a particularly wrenching story about an inventor whose work was copied, patented, and used against her, check out www.patentpandas.org.

Patents that fail to provide enough information for others to make and use the claimed invention also work against the goal of ensuring public access to knowledge. In the field of biologics (pharmaceuticals made from or out of living organisms), companies are getting patents without disclosing how to make the actual biologic, and opting instead to keep that information secret for as long as possible. Tahir explained that “we’ve seen that play out in the COVID vaccine space,” with Moderna waiving its patent rights while keeping the information required to make the vaccine a secret. Getting patent protection without providing the requisite disclosure prevents the public from ever getting the benefit the patent system promises: access to knowledge.

3.     Your voice is a powerful tool for change.   

Big companies have long dominated patent policy debates, including those that profit directly from patents as well as those that can afford to engage in full-scale patent litigation and post-grant challenges at the Patent Office. Sometimes, these interests align with those of the broader public, but alignment is not equivalent to representation of the public’s interest. To improve the patent system, it is necessary to broaden public participation and ensure representation for all who make and use technology.

One way to do that is to ensure existing institutions include representatives of the public’s interest. Patents are public grants, yet the public has no representative to hold the Patent Office accountable, including on the Patent Public Advisory Committee. Its members currently include no public interest representatives, patient advocates, consumer groups, open source developers, or scientific researchers. That needs to change.

Another is for members of the public to share their opinions and experiences of how patents impact their lives—loudly and often. Right now, there’s an opportunity to tell the Patent Office what you think about patents on abstract ideas and products of nature, like the gene patents the ACLU successfully defeated. The public’s absence from patent policy debates benefits the private interests that profit directly from the patent system. Once that changes, the patent system will change too.

Thanks to all who attended; Engine for drawing attention to the importance of patent quality; CAPA’s Matt Lane for co-sponsorship and stellar moderation of this event; Kathleen, Tahir, and Jef for making this panel a dream team. We look forward to continuing the conversation.