Acton Commentary

The Patent Process: A Critical Tool for Stewardship

Accordingto the July 14 issue of The Indiana Lawyer , “During the last decade, the number of patent infringement cases filedin U.S. courts has increased nearly 74%.” This upward trend in patentlitigation is likely to continue as the field of biotechnology researchexpands. Newly awarded patents cover such items as technology that allows fortargeted therapeutic gene replacement and the discovery of genetic markers thatidentify women who are more likely to experience early-onset menopause.

Thesedevelopments remind us of the good and bad aspects of the constant influx ofnew ideas into the world and the creative individuals who stand behindthem. Inventors are thoseimaginative people who court the borders of the possible, ingeniously turningideas into realities and theory into practice. In such processes, action--and therefore moraldecision-making--cannot be avoided.Inventors face countless moral questions. Does my invention use the proper means to attain itsends? Will my product enhancemorally sound behaviors and practices?Who can justly reap the benefits of my innovation? The faithful inventormight continue on - will my invention help or hinder people in their quest toknow God?

A Christian Foundation

Behind these questions lie theintimately related issues of ownership, private property, and patents.Understanding Christian doctrines supporting private property can help us beginto analyze the compatibility of Christian teachings and patents, laying a moralframework for evaluating the patent system as a whole.

Accordingto Christian teaching, God has destined the earth andall it contains for the use of all human individuals. This “universaldestination of goods” does not mean that in the beginning human persons jointlyowned the material world, with each having an equal share. Rather, it meansthat nothing in “subhuman” creation ever comes with a label saying: “this goodis meant for this person but not that one, this group but not that.” In thebeginning and now, God provides material goods for the use of all.

Privateproperty is the way in which humans realize this universal destination ofmaterial goods in a way that promotes human moral, spiritual, and materialflourishing. The biblical commandment, “do not steal,” reminds us that privateproperty is the normative way through which the world's goods are possessed,used, consumed, and exchanged.

By makingfree exchange possible, property allows us to satisfy our needs withoutresorting to force. Private property allows people to have secure, uncontesteduse of those goods that are necessary for people to fulfill their specificvocation from God. It also acknowledges the fact that, as Thomas Aquinas notes,things owned in common tend not to be looked after as well as things ownedindividually.

Into the Realm of Ideas

Thus,private property is an idea central to the promotion of both virtue and the public good. The nature of patent protection extends this logic into therealm of “intellectual property,” or ownership of ideas, processes, and newinventions. A patent, according tothe United States Patent and Trademark Office, is “a property right granted exclude others from making, using, offering for sale, or selling theinvention ... for a limited time in exchange for public disclosure of theinvention when the patent is granted.” Abraham Lincoln bespoke the valueof this legal mechanism: “The Patent System added the fuel of interest to thefire of genius.”

Patents are granted when the inventionmeets the requirements of newness (non-obvious, a novelty), usefulness(utility, industrial applicability), clarity (meaning the inventor provides adetailed description allowing others to see exactly what was done), and evidenceof an inventive step (human ingenuity).

Encouraging Innovation

Thepatent process is an incentive for investors and researchers, who can't affordto take risks without the possibility of earning back the costs of research anddevelopment. James E. Rogan,former Director of the United States Patent and Trademark Office, has describedthe heavy financial burden of research in the pharmaceutical industry in an interview in Religion and Liberty :“The average cost of bringing one new medicine to market isapproximately $500 million.... On average only three out of every tenprescription drugs generate enough revenue to meet or exceed average research anddevelopment costs.”

Thepatent process encourages the advancement and continuation of scientific andother kinds of research into more and better ways of being stewards of ourtalents and resources on this earth.As the Biotechnology Industry Organization (BIO) points out in its Primer:Genome and Genetic Research, Patent Protection and 21 st CenturyMedicine , “Obtaining a patent is just oneway of releasing information into the public domain.” However, this one way often provides the greatest incentiveto share the wealth of knowledge.In the end, it is this knowledge that is most critical to theadvancement of research, especially considering that patents don't lastforever.

We must not forget that by ensuring that scientistsand companies have a personal stake in the success of their work, the benefitsof morally licit research accrue to all of society in the form of bettermedicines and other products that alleviate suffering in the world. After all, as Justice Felix Frankfurterso aptly noted, “The average person reaps the benefits of this form of propertybecause the inventor has created it under a patent system that rewards theinventor only if society does derive benefit from it.“