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
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.
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
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.