3.1 Patent or perish  (Page 5/5)

Furthermore, if the government allows a researcher to scan the human genome (easy process) and hypotheticallypatent hundreds of vital genes, then, similarly, one can argue that hundreds of feasible ideas can be patented even if their commercialfunction is not physically defined. If this is possible, then what does patenting an idea entail? Will the patentee get royalties everytime someone researches a way to convert their idea into a usable product? Or will it go so far as a patentee will collect royaltiesevery time someone merely thinks about their idea? Obviously, a fine line must be drawn by the USPTO in order to prevent this scenario fromgetting out of hand. Hence, due to the hypothetical nature of modern scientific research in genetics and nanotechnology, this "fine line"is necessary for an orderly and efficient transfer of technology from research to commercial products. Ultimately, as soon as this feat isaccomplished, society will benefit as a whole.

Nanotechnology and patenting

Because of its place on the frontier of modern scientific research, nanotechnology is a field that is and willbe constantly affected by the patenting system of both the United States and the world. First, due to the wide variety of applicationsof nanotechnology, both corporations and universities are becoming more and more involved with this field. As a result, the capitalism ofnanotech corporations is protected by the patent system, while patents from government-funded research by universities are protected by theBayh-Dole Act of 1980. Hence the core of nanotech research is intertwined with the United States patent system. In addition, due tothe nature of nanotechnology (and genetic research-see "Are Ideas Patentable?"), considerable research is done on hypotheticalapplications that, at the present time, have no physical commercial function. As a result, the "patentability of ideas" is an importantissue in nanotechnology. Thus the USPTO's ability to resolve this issue is integral to modern research in this field.

Further complications in patenting nanotech inventions result from the nature of the technology. Some of theseproblems have been resolved. First, the USPTO has established official guidelines for simply defining the field (See "Useful Links"). Second,three basic areas for nanotech patenting have been defined as well. Ultimately, as in genetic engineering, the USPTO and otherinternational patenting offices must adjust and adapt to the onset of a new type of modern scientific research in the field ofnanotechnology.

Discussion questions

• Explain how a patent system in one country can greatly affect other countries around the world. How do you think this problemshould be solved? Can it be?
• Analyze the relationship between the patentability of genes and the patentability of the ideas. What are the similarities? Whatare the differences?
• If you were a senator, how would you vote in a decision on patenting genes? Would you be for or against it? Why?
• How did the Bayh-Dole Act allow Dr. Smalley to patent his discovery of the Buckyball? What would have happened if hediscovered it prior to 1980?

References

[1] Wikipedia, "Patent." http://en.wikipedia.org/wiki/Patent

[2] Dean A. Craine, "Types of Patent Applications., Patents,<http://www.nwpatents.com/fti04.html>

[3] Steven Crespi, "Patenting for the research scientist: an update, Biotechnology, Volume 22, Issue 12 , December 2004, Pages 638-642<http://www.sciencedirect.com/>

[4] Wikipedia, "Patent Infringment,"<http://en.wikipedia.org/wiki/Patent_infringement>:

[5] USPTO.<http://www.uspto.gov/>

[6] Ibid., Wikipedia, "Patent."

[7] Michael A. Heller and Rebecca S. Eisenberg, "Can Patents Deter Innovation? The Anticommons in Biomedical Research,"Science, Vol 280, Issue 5364, 698-701 , 1 May 1998<http://www.sciencemag.org/cgi/content/full/280/5364/698>

[8] Ibid., Wikipedia, "Patent."

[9] Ibid., Wikipedia, "Patent."

[10] Ibid., USPTO.

[11] Ibid., Wikipedia, "Patent."

[12] Ideafinder, "Patent Information."<http://www.ideafinder.com/resource/features/rpp-tn.htm>

[13] Ibid., Ideafinder.

[14] Ibid., Wikipedia, "Patent."

[15] Univ. of California Office of the President, "The Bayh-Dole Act."<http://www.ucop.edu/ott/bayh.html#Results>

[16] Ibid., UCOP.

[17] Ibid., UCOP.

[18] Ibid., UCOP.

[19] Wikipedia, "Vannevar Bush,"<http://en.wikipedia.org/wiki/Vannevar_Bush>

[20] Michael Caine, "Why and how the PCT is used--Advantages and Problems," Intellectual Federation of Intellectual Property Attorneys.<www.ficpi.org/library/NICE/caine.doc>

[21] Canadian Bacterial Disease Network, "Patents: an Overview."<http://www.cbdn.ca/english/ip_primer/Web/PatentsPCT.html>

[22]Marta Sender, "Availability of cheap HIV-AIDS drugs threatened by Indian Patent Law."<http://www.news-medical.net/?id+8591>21 March 2005

[23] Schwartlander et al., Science, 2000, 289:6423Univ. of Maryland School of Pharmacy, "HIV Figures,"<http://www.pharmacy.umaryland.edu/courses/PHAR531/lectures_old/fig/hiv_fig_all.html>

[24] Oak Ridge National Laboratory, "Genetics and Patenting,"<http://www.ornl.gov/sci/techresources/Human_Genome/elsi/patents.shtml>

[25] See also "Criticism of the Patent System" and the "tragedy of the anticommons."

[26] Ibid., ORNL.

[27] Ensembl, "Human (Homo Sapiens),"<http://www.ensembl.org/Homo_sapiens/index.html>