Tim:Dan, it’s been about ten years since you started the Public Patent Foundation—could you talk about what motivated that? You could probably make more lawyer money without having a public foundation after your name.
Dan:Yeah. Well, it has been just over ten years now since I started the organization. My desire to do public interest work is something that I was raised with and something I cared about, in college, in law school. When I was in law school and I said I wanted to do public interest patent work people looked at to me like they had no idea what I was talking about. They didn’t even understand how the patent system could in any way be harmful to the public. And so, after law school, I did what I call the law school residency which is your first three years at a law firm to pay off the law school debt. I actually enjoyed that, but wasn’t as fulfilled because I knew that I enjoyed doing more work for the public interest, small businesses and others who can’t afford to represent themselves in the legal system. That’s when I was lucky enough to get a grant to start the Public Patent Foundation back in 2003.
Tim:What brought your attention to patents in general as an area for doing some kind of public service? Is there some area of patents particularly that draws you?
Dan:No. When I was in college I studied engineering material science. My father was an engineer and my mom was an accountant, no one in my family was ever a lawyer. I didn’t know you could go to law school unless you had a certain pre-law degree. I just happened to be working with an older woman whose husband was a lawyer and I mentioned to him that I was interested in law and he said, “You know what you should do? You should go to law school and become a patent attorney, so you can use your technological background and be a lawyer in that field.” I didn’t know there was such a thing as patent law, so I started looking into to it. I remember getting really excited about it, but when I went to law school I didn’t want to commit to patent law in the beginning. I think it was better for me and I recommend this to my students that even if you have a particular background in patent law, I encourage them to think about other kinds of laws. I studied election law which I care about, voting rights a lot, environmental law, I care about the environment a lot, or bankruptcy law, all sorts of interesting aspects of the law. But I did realize through my classes and my experience that patent law was the most exciting area for me to work. Because I got to stay on the forefront of technological advances, and also be in law, where patent law has radically changed just in the 15 years or so that I’ve been a practicing attorney.
Tim:Now did you start your foundation as a sole proprietorship, so to speak?
Dan:I was the only staff member, I brought on an additional attorney, also aUVagrad, as a full time attorney, and we also have another attorney that we work with on a contract basis. We get a lot of help from pro bono attorneys and law students—one of the reasons why I started teaching in Cardozo was, I wanted to be able to work with the students at Cardozo. So I’ve used many students from Cardozo and other law schools throughout the past decade and they help out with projects.
Tim:You mentioned that people seem sort of befuddled by the idea that you could be a public interest lawyer in the field of patents. What are some examples of ways that that’s actually true, why is that a hard thing to grasp?
Dan:Well, I think most people think if they know anything about the patent system at all, they buy into the marketing propaganda that the patent system is about rewarding innovation, it hurts no one, and it helps those people who have invested a lot of time and money in developing some new invention—that’s a very naïve incomplete picture. I come at the patent system with my very unashamed conservative perspective which is: The patent system is the government getting involved and telling people what they can’t do. EveryTuesday, the federal government tells you and every other American that there are 4,000 things you’re no longer allowed to do, it’s now illegal for you to do these things. And that’s what the patent system is all about. Because everyTuesdaythe patent office issues about 4,500 patents.
It concerns me because I don’t believe in big government controlling people’s life. I don’t believe in big government interfering with free market. I don’t believe in big government restraining research and development in this way. And so, I’ve always thought there needed to be a check on the patent system that didn’t otherwise exist. Our entire government is based on this idea of checks and balances. And in almost every other area of the law we need to have public interest attorneys who are making sure that this system isn’t getting out of whack to the detriment of the general public which you may not otherwise be aware
So in environmental law, criminal law, election law, we have lots of non-profits, but in the patent law there wasn’t a non-profits speaking up and saying, “Hey, wait a minute maybe that extension of that patent isn’t necessarily a good thing. Or, wait a minute, maybe that specific patent on thatAIDsdoesn’t actually deserve to exist and therefore, there’s no reason why poor people are being denied access to that drug. Or wait a minute maybe that patent shouldn’t be granted over that entire standard that competitors who are open source developers want to implement their own program instead of the entire American public being subject to one monopolist control over that technology.”
So when you talk about in terms of freedom and you see the patent system as an excuse for the government to take away freedom that’s when I think it starts to actually trigger in people’s minds why there’s a need for public interest oversight.
Tim:Dan, a lot of people find it very easy, and I think with good reason, to be cynical about the actual workings of the patent system. Can you talk a little bit about the case last year that I think exemplifies the problem you mentioned about how the government can prevent people from doing things by use of patents just not the way we typically think of them. So last year there was a case involving DNA sequencing, can you a talk a little bit about how you came to be involved with that?
Dan:Sure. Because there is a lack of public participation in the patent system there had been a longstanding policy in the patent office, to issue patents covering human genes so long as they were isolated from the body, which isolated merely means they were removed from the body. And the reason why these were allowed was because the patent office likes issuing more patents. Because it makes more money—the patent office is mostly a fee driven entity. Its motivation is driven largely to make as much money as possible. So that’s why it charges fees to apply for a patent, it charges fees to receive the patent, it charges fees to keep patents.
Patent applicants wanted patents on these things because having ownership over human genes could provide them a very lucrative financial opportunity—they could be the exclusive provider of any genetic testing. Because there’s no way today at least to test one’s genes without removing it from thebody.Maybe in the future you’ll be able to test someone’s genes while they’re still in the body, but today it simply requires a little bit of removal from your bodyand bam!you’ve now infringed all these gene patents.
Well, there might have been people who wanted to get into the market as competitor, but there’d be a free riding problem. If they took all the time and effort to challenge Myriad patents and they won, well then everyone else would come in too and free ride on their efforts. So we have this real prisoner’s dilemma problem, which is actually the whole reason why we need public interest organizations. Because they are solution to the prisoner’s dilemma or what we call the ‘collective action’ problem. When it’s not in any sole individual’s incentive to do something expensive that’ll benefit society, that’s where we need non-profit groups to take little donations from people and then they do that action.
So that’s how we were the parties that brought the case challenging patents on human genes, that no one else had ever brought or would ever bring. Because we were a collective group of non-profits, we pooled our resources, both our financial resources and our attorneys and our clients put together, our technological experts—lots and lots of people contributed to make a team effort to bring this case that otherwise would’ve never been bought. And so, we brought the challenge to the concept of patenting human genes.
We used Myriad as the example because they are perhaps the most overly aggressive in assertion of their gene patents. On the one hand, you can have a theoretical debate about whether gene patent should exist, and software patents are very similar. But there is a difference between who owns those patents. If someone has a whole bunch of software patents, but they’ve licensed them for free, for anyone for any purpose that’s much less harmful and much less concerning to me than someone who has a software patent and he is trying to use it to actually enjoy certain conduct and shutdown competition and prohibit research.
So because both gene patents are bad per se, and Myriad was the most obnoxious user of a gene patent, that’s why we challenged their patents. And we are very successful, lucky to be successful—to go to the Supreme Court where we won unanimously that isolating human genes cannot be patentable.
Tim:It sounds like the sort of case for which the Foundation was actually founded.
Dan:Exactly. Being a law and economics conservative rational actor, like I just said, the purpose of non-profit groups is to solve the collective action problem, and also to prohibit our government and corporations from colluding against the public. Which often happens. So the corporations and the government have a revolving door where members of Congress become the head of lobbying for a corporation and vice-versa, with lots of capture of our political actors and they don’t really care about the public. So it’s like that old joke: Democracy is like two wolves and a lamb voting on what to have for dinner. Well, if the lamb is not even there to vote, they’re always going to get the short end of the stick. So this case was important in and of itself. But it was also symbolic of an example of how the patent system can really go out of control and harm the public interest if it doesn’t have adequate oversight from public interest organizations.
Tim:Alright, Dan I think the Myriad case is one of the rare reasons for people to feel optimism that there is any chance for reform in the role of patents at all. I wonder: Do you think that that is a lucky win, that is to say, not on your part, but on the part of the public? Do you think it represents a change in the tides as far as how people view patents and gene patents in particular?
Dan:I hope people are not discouraged by the state of affairs. I hope people do not underestimate their power to effectuate change if they simply participate in the system, and vocalize their opinions and support organizations that advance their positions. So I think the Myriad case is a great example of what can be done with very strategic thoughtful work by people who all care about the same goal. So I’m optimistic about the future.
The problem with the patent system wasn’t that it’s inherently incapable of being good.The problem with the patent system has been a lack of participation by the general public and by public interest organizations to help advocate those positions. We have been absent from the table. Once we start coming to the table expressing our desires we’ll be successful. We just need to continue with that momentum. So I think people should be encouraged that things are headed in the right direction and gaining acceleration.
Tim:You’ve been working within the patent system—obviously you’re not throwing bombs at buildings, so as someone who is familiar with both the DNA patents which are obviously controversial and for good reason, and with software patents which I think are controversial, but within a much smaller proportion of the public. What do you see – is there such a thing as a good patent in either one of those areas—can you have a good genetic patent? And what about software?
Dan:There can be some patents that have a net positive effect on society. But it’s kind of like I don’t argue for the abolishing of the patent system. Just like people who argue against the death penalty aren’t arguing for the abolishing of all criminal law. Now we don’t want anarchy. I am a disciple of Thomas Jefferson who is the creator of the patent system and I believe that if it works properly and we keep in mind to not let it be abused it can be very good. And something we can be very proud of. But we have to make sure quality is high. We need a patent office that cares about quality over revenue—which we don’t have. We have a quantity, not a quality patent office. We have a rubber stamp patent office here in America that it is way out of whack compared to all its international colleagues.
We have a patent judicial system which tends to continuously decide policy debates in favor of patent holders without really any concern for or respect for the negative impact of patents. So there is a lot of work to be done. But the patent system can be good. But we’re far from that. I don’t think anyone should be satisfied where we are and there’s a lot of work to be done. I would like to say one day, I could work myself out of the job, but I don’t think that day is anywhere in the near future, but I’m glad we’re moving towards it as much as we can.
Tim:Let me ask you one more question there: What is the next fight? For you, for the foundation. Where do you see the most important fight right now when it comes to public interest in patents?
Dan:Well, the two biggest issues I’ve cared about my entire career have been quality of patents—to make sure that people will get a second patent on something there was already known. This is what a lot of pharmaceutical and drug biotechnology companies do—they get a second patent or a third patent on the same drug just because they mix the ingredient slightly to extend their monopoly over those drugs. So patent quality is the first thing I care about.
And then access as the second. So even when there is a valid patent, that valid patent should still never be able to be used to shut down research, it should never be able to be used to shut down a small business—there should be exceptions from patent infringement. Most of the rest of the world has a research exception. By the way, America is one of the only countries if not the only country that doesn’t have an exception for research. There are injunctions here in the United States which makes no economic sense. The patent system is about rewarding patentees economically.
For them, there’s always some amount of money they can be awarded but there should never be aninjunction. We have in contract law a doctrine called efficient breach where we want to encourage people to break contracts—if they can do so in a way that doesn’t harm the other party and yet it is better off. So we should encourage people actually to infringe intellectual property rights, patent copyrights so long as the holder of that right is adequately compensated if it’smore efficient.So for example, say someone has a patent on a cure for AIDS. They’re making more money by selling a treatment for AIDS, a monthly or daily treatment. Someone else should be allowed to make that cure for AIDS available to the public. Because the public is more important than the patent. So quality and access are the two main categories of issues I care about.