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Spring 2000

Patent Pending
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The concern here is that EST patents would give a disproportionate reward for a rather minor step on the long road toward developing a useful product, but how much they could really stifle research remains to be seen. EST patent holders have a strong incentive to encourage, rather than discourage, further development. The big money is not in gene patents, which are basically narrow tools to help in the search for therapeutically useful pharmaceuticals and other products - it is in the patents that cover these products directly.

It would cost billions for companies to follow through on a million EST patents. So they will pick and choose, which will require further research to do intelligently. A year ago, the patent office suggested it might allow rather general EST patent protection, but now the indication is that these patents will be narrow if they are allowed at all. As important as whether something can be patented is how broad the allowed claims will be. With ESTs, for example, if the patent office uses a narrow interpretation that requires an exact sequence, such patents would be nearly worthless.

The bottom line is that patent law is working reasonably well, and it would almost certainly be a mistake to try to tinker with it much out of fear about some imagined future danger. The patent office cannot determine in advance which patents will be important, so it doesn't squander its resources trying to do the best job on each patent, just an adequate one. This makes perfect sense. Most patents never make a penny and are unimportant to anyone but the inventor. Moreover, the few that really matter will eventually be extensively litigated to fully air the issues involved.

With a pragmatic goal like promoting progress, the best way to proceed is our current one that adheres to broad principles and moves forward with sufficient flexibility to allow us to grope for practical solutions that, though far from perfect, are at least sound, adequate and consistent. Only when administrative solutions are fully exhausted does it make sense to risk legislative remedies.

www.germline.ucla.edu

Gregory Stock is director of the Program on Medicine, Technology and Society in the School of Medicine and a visiting professor in the Department of Psychiatry and Biobehavioral Sciences.

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