Research: Do too many patents stifle progress in biomedicine?

New research published by University of Utah S.J. Quinney College of Law Professor Jorge Contreras in the journal Science this week explores the current state of sharing resources in the biomedical research field and whether the fragmentation of property ownership can stifle research progress, instead of advancing it.

Contreras’ essay “The anticommons at 20: concerns for research continue” examines complicated questions about intellectual property rights and the creation of new products to improve human health in connection with the 20th anniversary of prominent research that explored the same issues two decades ago. 

In 1998, researchers Michael A. Heller and Rebecca S. Eisenberg published “Can Patents Deter Innovation? The Anticommons in Biomedical Research” in Science. In their research, the duo used the “tragedy of the commons” metaphor introduced by Garrett Hardin in 1968 and applied it to the biomedical research field. While Hardin’s “tragedy of the commons” suggests that people overuse shared resources because they don’t have an incentive to conserve, Heller and Eisenberg suggested that biomedical researchers could suffer from a different affliction — an “anticommons” — because people underuse resources that are owned by many in small portions because of ensuing battles over intellectual property rights. Such behavior can result in development of fewer products —a trend that potentially can stall important breakthroughs for bettering health.  Heller and Eisenberg suggested that the “anticommons” in biomedical research is one reason the privatization of biomedical research needed to be considered carefully.

Twenty years later, concerns for research advancement on this front continue, Contreras writes in the newly published Science findings. His new essay examines whether predictions by Heller and Eisenberg made 20 years ago came true and what these outcomes can teach society today.

“Even though most would agree that the patent-fueled anticommons that Heller and Eisenberg predicted for biomedical research did not come to pass, their fundamental insight about the dangers of over-propertization and fragmentation of ownership are still important today,” said Contreras.

“For example, instead of patents, many companies are now using trade secrets to cordon off large areas of research.  And there are proposals being made to give individuals ownership of data about themselves, data that used to be beyond the reach of property laws.  Anticommons could arise in these areas, even without patents.”

Professor Jorge Contreras

Contreras noted that public policy discussions around how to address these issues continue. He has provided suggestions to ease the blocking of ideas that too-restrictive property regimes can create.

“I’ve recommended, for example, that data ownership not be parceled out to every living individual, because doing that would make biomedical research much harder to conduct, which could deprive us of discoveries that could otherwise have life-saving impact.  This is the message that Heller and Eisenberg had twenty years ago: be careful about assigning property interests too widely, because the result could be gridlock,” said Contreras.

Contreras teaches in the areas of intellectual property, law and science, and property law at the S.J. Quinney College of Law. He serves on the Scientific Advisory Board of the Utah Genome Project.

He previously served on the law faculties of American University Washington College of Law and Washington University in St. Louis, and was a partner at the international law firm Wilmer Cutler Pickering Hale and Dorr LLP, where he practiced transactional and intellectual property law in Boston, London and Washington DC.

Contreras’ current research focuses, among other things, on the development of technical standards and the use and dissemination of data generated by large-scale scientific research projects.

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