Remarks by Shobita Parthasarathy

Remarks by Shobita Parthasarathy

Political Economy Presentation

Something is changing at the patent office. For generations, economic concerns have driven this bureaucracy and the policy domain that surrounds it. The patent system has operated according to a simple assumption: patents are in the public interest because more patents will stimulate more innovation, which will lead to economic growth and ultimately social benefit. Over the past 30 years, however, a wide variety of groups—from environmentalists to patient advocates—have increasingly challenged the institutions, policymakers, and stakeholders involved in developing patent policies and making patent decisions. These opponents argue that patent systems need to change their traditional focus on the economic benefits of patents to consider the public interest, including ethical, social, health, and environmental implications, more broadly. Is it ethical to assign intellectual property rights to life forms? Shouldn't decisions to allow patents on human genes include consideration of the impact on scientific research and access to health care? What rights do indigenous peoples have to their traditional knowledge in the context of modern global intellectual property systems? While most analyses interpret these challenges as efforts to introduce values to an otherwise technical policy domain, I argue that these clashes should be understood as much more fundamental challenges to dominant ways of thinking about patent policy.

In order to challenge patent policy domains, challengers in the United States and Europe have used similarly creative strategies. In addition to using traditional tactics including media campaigns and protests, they have also tried to challenge patent offices directly by attacking their bureaucratic rules.[1] Consider, for example, protests against the breast and ovarian cancer gene (BRCA gene) patents.[2] In Europe, a diverse coalition of patient advocates, environmental groups, and scientific organizations took advantage of the European Patent Office's opposition mechanism (customarily used by competitors in infringement cases) to challenge the patents. They ultimately won, and the EPO revoked the BRCA patents. A few years later in the United States, a similarly diverse coalition of groups led by the American Civil Liberties Union used the court system to question the patentability of the BRCA genes. They recently succeeded at the District Court level, although the case will surely be appealed.

Although the BRCA gene patent case is particularly well-known, this is not the only time that advocacy groups have used such strategies to fight the patent system. In both the United States and Europe, in challenges over patents on life forms, traditional knowledge, and software, a variety of groups have entered the patent system and begun to use its rules and processes to force it to consider the public interest differently. These groups are entering domains that were previously closed and technical, available only to innovators and patent lawyers. And they are starting to win. Although in the United States challengers' concerns have fallen mostly on deaf ears, challengers in Europe have convinced the European Patent Office (EPO) to strike down individual patents, forced changes in patent legislation, and even influenced shifts in the EPO's culture. Outsiders to the patent system can no longer be ignored.


[1] Shobita Parthasarathy (2010). "Breaking the Expertise Barrier: Understanding Activist Strategies in Science & Technology Policy Domains." Science and Public Policy. 37(5): 355-367.

[2] Shobita Parthasarathy (2007). Building Genetic Medicine: Breast Cancer, Technology, and the Comparative Politics of Health Care. Cambridge, MA: MIT Press.