Should broad patents give rights over future inventions?
It is not surprising that in such a novel technology field, several ‘pioneer’ inventions have been presented in the recent years. Patent offices have tended to provide these novel inventions broad protection. These patents cover protection of future, as yet unknown, uses, even though the patent was issued on the basis of the first therapeutic breakthrough.
Let’s take a hypothetical example. If a scientist secures a broad patent for a drug that lowers blood pressure and then someone else discovers that the same drug cures ear infections, the new inventor will not be able to patent the new use of the drug. He or she would have to pay out royalties to exploit the drug’s new application. Another example would be new crops; a novel cotton which resists a specific pest might get an exclusive rights patent to all GM cotton, including those that have not even been invented yet. In other words, today’s broad patentee has ownership over tomorrow’s inventions.Although such broad protection might be fair recompense for pathbreaking discoveries, it could put a brake on future research. It could cause researchers to stop even key investigations into the GM pro-duct if the product in question was patented. It could also lead to seeking and collecting patents for the sole purpose of securing royalty rents over future inventions, rather than for the purpose of commercialising the actual pro-duct of the research.The end result of all this could be a concentration of key patents in a few hands and a new market distorsion which would undermine biotechnology at the root. It is a policy question of the utmost importance, one which depends on finding the right balance between keeping knowledge markets open while protecting ideas for the greater good.
©OECD Observer No 216, March 1999