We bring you a report (but not an exclusive report) of last night’s proceedings at the Institute of Brand and Innovation Law‘s debate: Do Patents Incentivise or Inhibit Innovation?
The chairman, legal broadcaster Joshua Rozenberg, started by pointing out how distinguished a group of people had been assembled – in the audience. He was right: High Court judges and Fellows of the Royal Society were ten-a-penny in what was billed as a “scientific and legal panel discussion”. This blogger can also vouch from personal experience that there were two members present from the Westel Canoe Club, at least one of whom recently achieved his British Canoe Union Strand Touring Award (Silver).
If such a thing were possible, the panel of speakers was even more distinguished than the audience. As Mr Rozenberg asked each of the five panel members for his views (and yes, they were all men), it became clear that we were witnessing a contest between scientific and legal giants. They would no doubt hate their multi-dimensional, subtly-nuanced comments to be reduced to a crude, bullet-point summary. So here goes…
First up, Professor David Selwood of the Wolfson Institute for Biomedical Research. Mr Rozenberg asked him, as he asked all the panellists, for a simple binary answer: do patents incentivise or inhibit innovation? Professor Selwood replied that patents incentivised innovation. He thought there was an argument for a longer duration for healthcare patents. He wondered whether universities did too much patenting. He pointed out that, at universities, patenting and commercialisation was always going to be secondary to teaching and research. His common-sense views settled many in the audience, particularly those of us who would be out of a job if patents were abolished.
We needed to be settled, for next came Professor Sir John Sulston, Nobel Laureate and one of the lead authors of the Manchester Manifesto. He refused to answer the binary question, as an “anarchist”. He thought debates were much more interesting where people discussed questions rather than answering them. He wanted to replace “exclusivity patents” with “remuneration patents”. In other words, the inventor would receive a royalty from all organisations that used his invention, but he could not grant exclusivity. Mr Rozenberg asked how easy it would be for an individual inventor to enforce his patent in national courts. Professor Sulston replied that this would be easy, and he gave the analogy of enforcing laws on carbon emissions. He thought healthcare was too important to leave to the capitalist system, where pharmaceutical companies spent millions in promoting drugs. He bemoaned the fact that socialist ideas had become unpopular with the electorate. As a reasonable man, he didn’t mind if exclusivity patents remained in place for luxury goods; he was only concerned about patents in healthcare.
After Professor Sulston came Sydney Brenner, his fellow Nobel laureate in 2002, a Companion of Honour and Fellow of the Royal Society. Dr Brenner also wanted a different patent system, but it soon became clear that his different system was very different to Professor Sulston’s different system. Dr Brenner thought there should be a way of deterring academics who want to patent everything. He thought they should be required to cover or justify the costs and demonstrate that the patents would make a profit. In response to Mr Rozenberg’s question he agreed that academics sometimes patent too early, but he pointed out that scientists want priority – they want to be the first to discover something. A strong second place is not good enough. He recommended that patents should only prevent commercialisation and should not prevent research. With just a touch of hyperbole, he commented that licences to companies to conduct research had “destroyed the patent system”.
Next, the audience heard the views of Dr Patrick Vallance, a former academic who is now Senior Vice President, Medicines Discovery and Development, at GlaxoSmithKline. He thought patents incentivised innovation. He pointed out that it costs between $1.2 billion and $1.6 billion to develop a drug, when the costs of failed drug candidates are taken into account. (Professor Sulston disagreed with these figures, and thought a large part of the costs were marketing and promotion costs.) Dr Vallance quoted the comment of an Indian generic drug manufacturer who had told him it cost $300,000 to copy an existing drug and put it on the market. Patent protection was necessary if the pharmaceutical company was to make the investment in a 10-20 year development process. Dr Vallance thought discovery was a public enterprise and should be open and free of patents; commercialisation should be protected by patents. He thought universities did too much patenting, they were too thinly spread, and they overvalued their inventions. Academics tended to ask questions like, could this be a good target for a drug? Instead, they should focus on knowledge creation. He had moved from academia to industry to make a medicine. This can’t be done in academia.
Finally, we heard from Professor Sir Robin Jacob, the only lawyer on the panel. Perched on the end of the “high table” furthest from Joshua Rozenberg, he looked like a naughty schoolboy who had been allowed into the scholarship class. A hush fell on the audience as he started to speak, and tension filled the air. What did a mere lawyer have to contribute to a discussion among scientific titans? Would he say something outrageous? Could we hear what he was saying?
Prof Jacob didn’t let us down. In response to Prof Sulston’s desire to remove exclusivity from patents, he pointed out that there had been arrangements for licensing of ‘generic’ competitors under the UK patent legislation between 1919 and 1977. As a barrister, he had been involved in litigating ‘licences of right’ in respect of cimetidine, where the royalty rate awarded to his client Smith Kline (as it was then called) by the court had been 46%, the highest in history, yet within 3 months of this decision the generic companies had completely “taken the market”, despite the high royalty rate.
Prof Jacob thought the patent system was crude; patents lasted for 20 years irrespective of the technology. Nevertheless, we needed the patent system (thank goodness! this blogger dared to breathe again). The system could be improved. He noted that the US was moving to a first-to-file system but was retaining a grace period for publication by academic inventors. Although it would be tricky to make this work, he thought this should be considered in the UK.
At this point, Joshua Rozenberg opened the discussion to the audience. Shortage of space and time prevents us from reporting all the audience’s comments, but we noted Professor Finkelstein‘s interesting question as to whether “different domains” (eg software and inspection processes, to take two of his examples) should have different patent rules from healthcare patents. And we agree with his comment about the style of “old fashioned specifications” that “reduce scientific clarity”, but that is a debate for another day.