NBL Annual IP Report (Bessatsu NBL), No. 123, 2008
This paper looks at what kinds of ideas should be protected by patent law.
Some historical arguments support the idea that scientific discoveries should not be patented.
- Recently some observers worry too many ideas are being patented, making it hard for innovators to work without fear of lawsuits (“patent thickets” and the “anti-commons”). Some recent studies show this is not a problem in practice.
- Historically, patents were intended to protect tradesmen skilled in useful arts. They were not intended to protect scientists who sought to understand fundamental rules of nature.
- The main output of scientists was books and treatises, which were protected by copyright in the first Copyright Act of the United States in the 1790s.
- We should return to this original understanding. Today, science is very much entangled with useful technology. But it should still be possible to separate the two.
- This would avoid patents that some think are locking down basic ideas that are needed to free scientific research going forwards.