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Reflections of two years covering intellectual property


As my time at Managing IP draws to a close, I’d like to take a moment to reflect on what I’ve learned about IP law and innovation

I still remember that first phone call when the editor rang to tell me I got the job. His voice sounded consolatory because he wasn’t offering me the role I had applied for, which was in finance, but one in intellectual property instead – patents, to be specific.

I tried to sound enthusiastic while I quickly googled ‘patents’ on my phone. My browser came up with something about Albert Einstein once working as a patent clerk and the first patent for insulin being sold for a dollar. Words started popping up in my mind: science, descriptions, medicine, physics, chemistry, robots – basically everything I as a former humanities student tried to stay away from for fear of polluting my perfect report card.

At first glance it’s hard to come up with something more boring-sounding than a patent. It’s a description that can be written in the driest terms that only somebody ‘skilled in the art’ (who is normally not present at the dinner party where you are describing your job) can understand. But after two and a half years covering patents, one thing I can say for sure is that I’m very glad my editor realised I was not fit for finance.

Scrabble and science

There have been highlights of working as an IP journalist, like that time I cornered an English judge at a drinks reception to inform him in no uncertain terms that I would definitely beat him at a game of Scrabble. Or the time I got to stand on stage at an awards ceremony for IP lawyers and tell the crowd that there is no other group I’d rather choose to become stranded with on Mars.

But the biggest takeaway I have from this job is that I see more how ideas and the protection of them is linked to so many things. Scientists working on drought-resistant plants rely on CRISPR patent licensing to do their research. My phone, which I use to stream movies on the train, relies on technology that never would have been invented without years of investment and a long-fought patent war. And personalised cancer treatments never would have been developed without years of prior research that came about because of patent protection.  

One thing my mind keeps coming back to is an argument I’ve heard repeatedly covering patents: that IP is necessary for innovation. The argument goes that we need strong patent laws so that businesses know they can recuperate their investment. And that’s fine. For the most part I agree with this line of thinking. But like with everything in life, there’s nuance.

Fundamentally a patent is a bargain between an inventor and society. It is the right to exclude. It is the right to say ‘give me money for the use of my invention or I will sue you or get an injunction so that you can’t sell your product’. In most cases this seems fair. Taking my idea and profiting from it without my consent is a form of stealing and any civilised society needs to prevent that.

Moral dilemmas

This is where I believe science needs to touch base with humanity, particularly on bigger questions of what a just society should look like. When I was in undergrad a very eccentric philosophy professor posed the following moral dilemma to the class: “You’re in a small village and your wife is dying from a disease. There’s a scientist in the village who has a cure, but he refuses to sell it to you at a price you can afford. What do you do?”

The class unanimously agreed that the right thing to do was to steal the medicine and save your wife’s life (some even added a degree of vengeance and advocated for locking up the scientist who refused to sell the medicine).

What this argument does is ask how important the right to private property is. If the argument had been: “You really want to watch the new season of Queer Eye and the one man who has a Netflix account refuses to share his password with you. Is it ok to steal it?”, most people would say no. But nobody ever died because they couldn’t watch Jonathan Van Ness give skin care tips.

Covering IP as a patent journalist has made me examine this moral dilemma in a different way. If the only two alternatives are to steal the medicine or watch somebody you love die, only the most cold-hearted person would choose death. But a patent attorney would add an extra level of nuance. What happens if by stealing the medicine the scientist is so disheartened that he never invents another medicine?

One of the biggest debates in IP right now is on the patent waiver for COVID vaccines. I am on the record as very much in favour of the waiver and I know that many folks in the IP community disagree with me. Many people have perhaps rightly pointed out that waiving patent rights will not increase doses, while others argue that with so much public spending on vaccines, the IP should be in the public domain.

Balance and bargains

What this boils down to for me is that a patent should always be a bargain, and just like any bargain it must benefit both sides. The inventor should be rewarded for contributing to society, but patent offices should also decide what that contribution should be. COVID-19 will not be the last pandemic, nor is it likely to be the biggest cause of death in the future. Just this week the Intergovernmental Panel on Climate Change released a report with dire warnings about climate change. How we decide to address some of the most pressing problems humanity has ever faced will in many ways come down to how innovative we are. IP will play no small part in that.

My hope is that in the coming years the IP community will take a nuanced approach and understand that there are no black or white solutions. Sometimes a patent is necessary to encourage innovation. Sometimes it can block it. Finding that middle ground will require that we all put ideology and our own best interests aside and think about what is best for the greater good. There will be disagreements but that doesn’t mean that another person is our adversary.

Before writing this I dug up my old covering letter where I was asked to describe why I wanted to become a journalist. Reading it was like stepping back in time and reading a letter to my former self. I wrote that I became a journalist because I wanted to inform readers about the world around them and because I believed I was the right person to tell them things they’ve never heard. When I look back over my time at Managing IP, I’d like to think I taught my readers something they didn’t know before, but I’m fairly certain that I’ve learned much more from all of you. My role has taught me to see the world in a different way, and for that I am very grateful to all my readers and sources who have enlightened my own thinking.

All the best.

more from across site and ros bottom lb

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Patentees should feel cautious optimism over the EPO Enlarged Board of Appeal’s decision in G2/21, say European patent attorneys
Significant changes to the standard of law are unlikely, say sources, who note that some justices seemed sceptical that the parties disagreed on the legal standard
Sources say the High Court of Australia’s ruling that reputation is immaterial in trademark infringement cases could stop famous brands from muscling out smaller players