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I am asking because I work for a non-for-profit academic hospital where the vast majority of the funding comes, one way or another, from the taxpayer. It is certainly possible, actually encouraged, for us to file for patents should we find some new way to diagnose or predict disease progression.

But, I will mention this again, we are funded by the taxpayer so we are already getting a salary and resources to do our work from them. Is it filing a patent and consequently delaying the publication of our research in order to find out a way to commercialise the work something that could be considered ethical?

  • Presumably the hospital gets at least a share of any patent royalties? – Nate Eldredge Apr 18 '14 at 2:03
  • Are you talking about patents in combination with scientific articles or instead? – DSVA Jan 10 '18 at 22:33
1

Thinking more on this, I have come to agree that patenting things - devices, or drugs - is necessary. However, I wonder if this question would be answered differently if the thing being patented is, instead, a model? For example, would it have been appropriate for Krebs to patent the eponymously named Krebs cycle as a way to think about energy metabolism in a cell? Or the cell cycle? Or, could the inventor of the SIR model of infectious disease spread have ethically patented that method of tracking infectious diseases?

  • Where I am (Europe/Germany) a discovery such as the Krebs cycle cannot be patented (nor can be business ideas or pure mathematical algorithms): it would not be a technical invention. – cbeleites supports Monica Sep 16 at 19:32
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Yes it is ethical.

The patent will typically be owned by the institute and it will get most of the revenues (this is why they encourage it). The inventors usually get some form of compensation. Revenues from commercialization is partially how your salaries can be payed and could in fact save tax-payers money.

More importantly, developing a new diagnostic or therapy will in the end improve the lives of the general public (and even save lives in many cases). Currently, due to the immense costs involved, the only way to get a new therapy to the public is in a commercial setting.

3

I understand the answer above, but a follow on question I'd ask is: is it ethical to keep this 'good idea' away from other scientists, who indeed might be able to make better progress on it than only the idea generator themselves?

It seems to me that the end goal of all of this should be patient care, and to best benefit this, my opinion is that publication in an open access forum is the first, and most important way forward. I understand that without the protection of a patent, businesses can't be built, and indeed, that our whole society is based on this concept of capitalism. But, it doesn't jive with my sensibilities as a physician.

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    Open access is important, but have you ever heard of a drug sold by an academic institute? In the end if you want a treatment to reach the public it will have to be commercialized. This does not mean that the research will not be published, by the way. The investment in development of a new drug is ~1 billion dollars - this amount can only be raised in a commercial setting. – Bitwise Apr 18 '14 at 17:18
  • What Bitwise said. The discovery is all well and good, but making a drug is a commercial endeavor, and a patent helps ensure at least some of that money will go to the research program that spawned the idea. – Fomite Apr 18 '14 at 17:53
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    All these are good comments but is there a reason that companies will only pursue ideas for which they have patents? if something is in the public domain they can work knowing that another company is not to come and sue them as it seems to be the case in the mobile phone market. – David Basanta Apr 19 '14 at 19:05
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    @DavidBasanta development of the drug is extremely expensive. Copying and manufacturing a drug that does not have a patent is actually easy - this is exactly what the generic pharma industry specializes in (they wait for a patent to expire and then copy the drug and sell it very cheap). The company that does the R&D uses the patent to sell the drug at a high price before the patent expires so they can compensate for their very expensive R&D. That's why a drug company won't do anything without a patent - they won't be able to get back their investment in R&D. – Bitwise Apr 20 '14 at 14:40
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    Remember that the patent describes publicly the invention. So the knowledge/idea is open access (just download the pdf from the patent office). But using the knowledge has an embargo period (until the patent expires) during which using the patent is "behind a pay wall". – cbeleites supports Monica Jan 12 '15 at 22:37
0

Yes, definitely patent it else if you publish and if idea is good other companies will develop and make product out of it and will patent all the process around it, and later charge for their product based on their market position. In the end the tax payers money would generate profits for companies which could be anywhere in world. If its patented and the hospital holds ownership/shares, and later licenses it you would have generated extra revenue for public institution a return to society instead of companies. On other extreme considering similar idea comes to other person working in big company and if they file it before you, you loose everything you may still publish it but you are not the first, and the worst case you/society will have to pay for it. So secure with patent as soon you are in stage you can defend the patent application. See it as way of getting money back to government for their investment in research.

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This is actually a very tough question to answer (what is appropriate, that is what is just). You can even go back and wonder about patents themselves and some of the misbehavior associated with them (patent trolls, submarine patents, "business process" patents, etc.) Then there are copyrights and the (literal) Mickey Mouse extension in duration. However, this is a real rathole to dive down (moral justice).

Instead of dwelling on justice question may advice is to reframe a little and think about what is legal and what is customary. Basically our society has decided to allow these patenting behaviors. The rationale (not saying if I agree or not, just sharing the concept) is that by $$ incentivizing researchers (even those already getting state funding) that the benefit is worth the cost.

However, there are obvious differences where the research is in areas of national security (and even publication may be limited). Also industry almost always makes paid researchers sign over their rights for discoveries as part of the employment contract. So obviously other models are possible. [However, these researchers generally have higher salaries. And higher job security, at least versus grad students.] So, obviously other models are possible.

My advice is not to get too flustered by the moral issues here and just deal with the system as is (in your institution). Also, note that the VAST majority of patents don't earn any money. If anything there is a little bit of a game with more senior researches (in academia and industry) being better able to get the IP department to spend more time/money pushing their patents through the system. The reason for this is prestige, not economic value.

For a practical example, the institution I worked in (academia) had a policy that some fraction of the value accrued to the school and some to the researchers. BUT if they decided not to spend the money on a patent filing, than you could do it on your own and get all the value. This created possibility of perverse behavior where if you really discover lighting in a bottle, you would want to DOWNPLAY it, but disclose it.

I did push one patent through the system, described above. It was not lighting in a bottle but I felt like it was closer to a real innovation and had greater likelihood of $$ earnings than some of the stuff the senior faculty was pushing through [one name professor was the husband of the head of the IP department...surprise, surprise, he was the leading patenter on campus!] Or at least that was the story I told myself when dressing up my research and convincing the IP department to spend the money. ;-)

Some final related practical advice.

  1. If you push a patent, get a copy of Patent it Yourself (Nolo Press). Don't actually patent it yourself...use an agent (preferably on someone else's dime). But it will give you the basics of how things work.

  2. Read a few (include them in your lit searches).

  3. Learn how to write one. The patent agent will still "write it" but they do a lot better job when a researcher has done the meat of the work ahead of time. Better patents are sort of like lab reports with description of examples, materials of construction, testing, etc.

    I actually just gave the agent a draft. I see bad things happen when people just dump some drawings or figures onto an agent. He knows some things you don't about patent law but he can mess up the science/engineering logic and this can cause issues during the patent office examination or if the patent is ever litigated. [This could be a personal thing though...I take the same attitude with publications...write them myself so it is the way I want it.]

  4. Also, there is a sort of way of justifying things. "It is well known in the literature that technique A can be used to get effect B but at the cost of issues C. Issue C is a serious hindrance in trade (cite). We present a new method by mixing some D in with the A to get effect B, with a 50% decrease in C."

  5. Buy and read the book Laser: https://www.amazon.com/Laser-Inventor-Laureate-Thirty-Year-Patent/dp/0595465285 The book describes a grad student who had a 30 year patent battle over who invented the laser. He "won" (perhaps it was settle, but I think he prevailed) because he had gotten his lab notebook notarized by a drugstore clerk! Few practical lessons from that: use your notebook, know when you have lightning in a bottle (almost literally in his case) and be prepared for some fight if the thing is actually worth something.

  6. I have had a patent fail because it was a year after publication. (I misjudged the time because I didn't realize Chem Abstracts was considered publication and was just thinking about the "real journal". So don't cut things too close. [That said, in all likelihood, you are just an academic trying to get prestige, so figure out how to get both a publication and a patent out of the research.]

0

Most patents loose money. You should not use taxpayer money to fund a patent that will loose money.

https://www.allbusiness.com/97-percent-of-all-patents-never-make-any-money-15258080-1.html https://www.forbes.com/sites/danielfisher/2014/06/18/13633/#3cf5de626f1c

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