I made a presentation at the A2K meeting last year called Mapmakers and Mariners, Shipwrights and Sailors. I had prepared it while sitting on the stage listening to the other speakers (my preferred mode of preparation). it was inspired by a conversation I had with a fine journalist named Kenn Cukier.
In that discussion we were exploring the parallels between the intense competition to navigate the oceans during the creation of the European mercantile empires of the 1400-1800s, and the ability to navigate
the patent world now in the new millennium. In both cases, the proprietary knowledge of the routes, the shoals, the dangers, the currents and the ports was of enormous importance for achieving commercial advantage, and of course economic primacy.
Kenn later went on to write an exceptional piece for Nature Biotechnology about navigating patents in biotechnology, further exploring this metaphor. In the late 1600’s, the Spanish could risk the Manila Galleon traveling from the far East to Spain via the Pacific Ocean – and many of the annual Galleons sunk – because the reward was so high. The profits on silk, silver and spices were astronomical. Navigation and seamanship would have to be exquisitely well developed to justify smaller profits; simply to drop the risk profile. And indeed over the years, as both cartography and maritime technology improved, so did the volume, quality and reciprocity of trade. And of course it was the tools development that drove the navigational capability: the marine sextant allowed latitude to be calculated, the marine chronometer, the longitude.
It is clear that the ability to see the dangers and opportunities, the detritus and the value within the patent system was going to be critical if science and technology is to achieve a greater social good, especially for small markets or weak market signals – one way to say ‘for the benefit of poor people’.
But the system is of almost awesome complexity. Single patent documents can be hundreds of pages, with arcane language understood by only a few, and rights interpreted and re-interpreted on-the-fly by courts. Thousands of these can exist in a single field of innovation, with many thousands more latent in the system. One or two may be dominant or none. Fundamental biological processes – such as RNAi, have been patented. Most of the important genes of many important organisms – humans, rice, maize, cattle – have been subject to patent applications and sometimes grants, many of them contestable by many separate claimants.
But its actually worse than that. The ownership of the ‘patent’ itself is usually a matter of public record, but the ownership of the rights – the most important feature of a patent – is completely obscured. Nowhere, in most jurisdictions, is there recorded or available the patterns of power; who owns what rights. A University may own hundreds of patents, but for any of the useful ones, the rights have often been sold. But to whom? Not clear.
When a small company licenses a patent, or develops its own patent portfolio, to whom has it licensed and on what terms? The patterns of power and ownership are as important – and in the aggregate perhaps more important – than any other feature of a patent grant. And yet we have no public information whatsoever, except in piecemeal and scattered disclosures. Some jurisdictions, including Brazil, do impose a responsibility on licensees to disclose – at least to the patent office. But most do not. And none make it easy to find this information.
Now, as public agencies and universities come to increasingly dominate filings, the emergence of the trolls from under the bridges makes crossing so much more challenging. Imagine building a cart – or worse, investing in roads – when not only the spokes are proprietary, but the axles, the cart-bed, the yokes and even the oxen. It should be no surprise then that the few innovations from biotechnology to see the light of day and the tests of the market are such lucrative Spanish Galleons as Roundup Ready and Herceptin.
Our maps are still parchment and vellum in an age of informatics.
The Cambia PatentLens aspires to provide an integrated platform on which diverse actors can collaborate to create informatics-empowered and human- enriched environment to reduce the complexity, the opacity and the barriers of the patent system.
We are doing this by collecting, associating and harmonizing the data structures for patents and patent applications for major jurisdictions, combining these with patent status information and making these available at no cost to all.
As with maritime charts, there is a great difference between the resolution required to cross an ocean and that required to navigate safely into anchor at port. We are working towards development of patent landscapes (though in keeping with my maritime metaphor I should perhaps call them seascapes) in key fields of interest where professional knowledge and interpretation is absolutely required to have any sense of the extent of coverage and its meaning. And these will in turn serve as platforms for decision support in biological innovation. If Biological Open Source is to have any traction, it will be through the realization that the delivery of innovations into the market place will be the metric by which we will be judged, not just by collaborative science and information. And this means that the maps to create a clear way forward must be made and followed.