Misused Patent Laws

What is going on at the U.S. Patent Office? We’d all better find out. Ever since the Patent Office first granted in 1988 a patent on a living animal — the transgenic mouse developed by a DuPont-funded genetic engineer — the place seems to be going haywire in what it is giving monopoly ownership power over.

In late 1992, a 17 year long patent monopoly was awarded to a subsidiary of W.R. Grace Co. to all cotton plants that are genetically engineered. Not just a patent for specific technique or for a specific plant variety, “but on all genetically engineered plants of an entire species,” says Hope Shand of Rural Advancement Foundation International. We have the sterling National Public Radio reporter, Daniel Zwerdling, to thank for surfacing the stunned reaction to giving exclusive rights to the entire genetically engineered cotton crop to one company. He asked Jerry Quisenberry, who runs the Department of Agriculture’s cotton systems research laboratory in Lubbock, Texas, about this patent.

Quisenberry replied that Grace’s discovery was no major discovery. He said that other researchers “have been using the same method for years to engineer crops from tobacco to tomatoes.” In fact, he says, Grace had to ask a taxpayer-funded researcher, now on the Department’s staff, to show them how.

Note the consequences that flow from this patent. Someone invents a new engineered way to improve cotton to resist pests and wants to commercialize it. Grace can use its patent to block it. Secondly, once farmers begin to rely on genetically engineered cotton seeds, they will have to keep buying a fresh batch of Grace-patented seeds every year or be sued. They cannot grow these seeds on their own as they have done for generations. The revised GATT (trade agreement that Clinton just endorsed) would require all signatory countries to accept this patenting on life forms.

The Grace cotton seed patent has been received with widespread criticism by many in industry, government and academia.

Their only remedy is to sue in patent court to invalidate the patent for being overly broad. But it could cost $1 million to take such a case, Zwerdling reports. The main interests who could afford to pay this price are other companies who want to do this with other crops, so why “muddy the patent waters.”

An official at Cangene Corp. made the point precisely. It has applied for a patent that would give “it control over all of America’s broccoli, cauliflower and canola oil plants, if they’re genetically engineered,” said Zwerdling.

Now comes another superbroad patent awarded to a subsidiary of the (Chicago) Tribune Company, which many in the computer industry assert would “stifle the developing multimedia industry. The patent (No. 5,241,671) covers a wide area of multimedia applications combining computer sound, video and data, such as, the New York Times reports, “Compton’s Multimedia Encyclopedia on computer disk.’

It takes an uproar from powerful interests, who don’t want to pay huge undeserved royalties, to get the Patent Office’s attention. Alarmed that this patent may be overbroad and may have been preceded by several discoveries that the Patent examiner overlooked, the new Commissioner of Patents, Bruce Lehman has ordered a re-examination.

Finally, there is the League for Programming Freedom (Suite 143, 1 Kendall Square, Cambridge, MA 02139), comprised of many creative software specialists who oppose any granting of patents on computer software. Lots of E-Mail communications are flowing around the country these days developing the arguments and evidence to return to the time, ten years ago, when software programs were only copyrighted. It was then that the Supreme Court ruled that software could be patented.

The League’s members believe that such patents discourage innovation and produce lots of financial and time waste. It says that many companies applying for software patents do so for defensive purposes, because they fear patent attacks on them.

Their reasoning is being heard at the Patent Office which is holding public hearings early next year on the ok-copyright, not‑ok patents’ controversy.

These three episodes raise the broader question of how the patent laws can boomerang. Instead of promoting and rewarding inventions, especially by the lone or individual inventor, the patent systems is being twisted to do the opposite — place power in corporate hands to monopolize, deter or chill innovation.

Years ago, a prolific lone inventor told me what his definition of a patent was: — the right to sue. And, he added, DuPont can afford to sue and he couldn’t. Many little inventors, who have experienced infringement actions by big companies, understand what he meant.

It is time for a comprehensive review of how our patent laws are being used and misused.