A Century-Old Debate Over Science Patents Is Repeating Itself Today
It was 1923, and Francesco Ruffini was going to rescue science. The Italian senator’s plan was simple: Give scientists an ownership stake in their discoveries—a sort of patent on the laws of nature they discovered. He had written a compelling and widely praised report and proposal, he had the backing of the newly formed League of Nations, and he had the support of prominent scientific and legal experts.
But it took only a few years for Ruffini’s grand plan to fall apart. Scientists around the world rejected the plan, and lawmakers shelved it. Ruffini’s committee on the League of Nations, the Committee on Intellectual Cooperation, would come to be remembered as “the most ineffectual enterprise.”
But Ruffini may have the last laugh. Right now, legislators are contemplating changes to the rules for patenting laws of nature—Sens. Thom Tillis and Chris Coons held roundtables on the subject in January and again in mid-February. The proposals are remarkably similar to what Ruffini proposed nearly a century ago. Scientists decided it was a bad idea then, and it is just as bad an idea today.
The League of Nations’ Committee on Intellectual Cooperation, the predecessor to today’s UNESCO, was a star-studded affair—members included Albert Einstein, Marie Curie, H.A. Lorentz, and Robert Millikan. Its mission was to improve the state of science in the wake of the European economic devastation of the First World War. The committee would contemplate several major ideas throughout its tenure, such as creation of an international university, academic exchange programs, and even the adoption of Esperanto.
Ruffini, as a member of the committee, had a different idea for how to increase scientific research. He argued that a scientist who made a breakthrough discovery should own the discovery, receiving “scientific property” in the same way that artists hold copyrights in their art and inventors get patents on their inventions. For example, Ruffini’s report noted that the discovery of “Hertzian waves” (i.e., radio waves) led to hundreds of useful products. Under his scientific property proposal, the discoverer would get a cut of the profits. This represented a big change from existing law, which had always said that rights like patents could be given for inventions—artificial things like machines that are made by humans—but not for discoveries of the natural world.
At first, Ruffini’s idea seemed to have a real shot at success. The committee gave his proposal the nod in 1923, and the full League of Nations Assembly approved the report to be sent to member countries for comment. (The history of the proposal is detailed in a 2003 paper.) John Wigmore, a Chicago law professor working with Ruffini, became the stateside promoter of the idea: He praised it in an academic article co-authored with Ruffini and arranged for a $1,000 prize (worth more than $14,500 today) to procure an essay on a “speedy solution of the problem.” The prize went to one C.J. Hamson, whose 1930 book Patent Rights for Scientific Discoveries greatly raised the profile of the issue in the United States.
Patent lawyers, too, were intrigued by the concept of scientific property. The American Patent Law Association formed a Committee of Scientific Property, choosing prominent Chicago lawyer Edward S. Rogers as the committee head in 1924. Rogers was optimistic about the idea, writing in a 1925 article that scientific property was the natural next step from patents and copyrights. The American Bar Association’s Patent, Trademark, and Copyright Committee was apparently inspired by Hamson’s book to investigate the subject and was convinced the effort would succeed to the great benefit of scientists: “When the practical interest of so many is at stake, the protection of that interest is generally capable of accomplishment.”
Fast-forward a century, and history is repeating itself, even with some of the same organizational players. The American Patent Law Association has become the American Intellectual Property Law Association, and the Patent Committee of ABA had become the Intellectual Property Section. In 2017, AIPLA and ABA’s IP section both produced proposals to change the patent laws to allow for patents on scientific discoveries, by amending a part of the patent law called Section 101. Those two proposals are the leading ones that have been the focus of the American senators’ inquiry so far.
The current proposals share much in common with Ruffini’s 1920s idea. Ruffini was clear that scientific property would not prevent all uses of a natural law but only practical commercial applications. AIPLA’s proposal similarly would permit patents on anything up to the line of “nature independent of and prior to any human activity.” Ruffini was motivated in part by his desire to undo the famous Morton v. New York Eye Infirmary case that rejected a patent on using ether as an anesthetic. The AIPLA and ABA proposals are motivated by their disagreement with the recent Supreme Court decisions Association for Molecular Pathology v. Myriad Genetics and Mayo Collaborative Services v. Prometheus Laboratories, which similarly rejected patents on medical techniques, respectively the BRCA gene for detecting breast cancer and a diagnostic blood test for adjusting treatment of autoimmune diseases.
If Tillis and Coons hope to turn the AIPLA or ABA proposals into law, they might want first to learn why Ruffini’s plan quickly turned from optimism to failure. Rogers, who praised the idea in 1925, ended up advising against it in 1931, saying that the plan “sounds awfully good” but ultimately “the whole scheme seems impractical.” The ABA Patent Committee would also shelve its plan, after receiving a strongly negative report from the American Association for the Advancement of Science. The member nation replies to the League of Nations were mixed but included disapprovals from the United Kingdom and United States. Ruffini and the Committee on Intellectual Cooperation attempted to rejigger the proposed language but continued to meet failure.
What caused the demise of Ruffini’s idea? It turned out to be devils in the details: Deep thinkers on the subject, even those in favor of scientific property in principle, couldn’t figure out the implementation. Rogers, for example, wondered how scientific property would deal with multiple contributors to one discovery. Who, for example, “discovered” electricity—Benjamin Franklin? André-Marie Ampère? George Simon Ohm? The “chap that made the Leyden jar”? Industries worried about unexpected liability and demanded creation of a scientific property insurance scheme. The American Association for the Advancement of Science report found concerns that the expansive scope of some scientific discoveries could lead to unbounded, tortuous litigation. A U.S. Patent Office official wondered how scientific property patents could be written without being too vague and speculative.
These concerns remain relevant today. Lots of new technologies already involve multiple contributors, leading to heavily disputed thickets of hundreds of patents. Unexpected liability, costly litigation, and vagueness of descriptions are also problems that the patent system faces today. Expansive patents on natural discoveries could make these issues worse. Lawmakers thinking of rewriting Section 101 today would thus do well to study the many arguments made in the 1920s and ’30s, to learn what difficulties they may face, what studies to conduct, what economic effects to consider, and what populations may be affected.
In his 1931 letter, Rogers wrote with worry about the experts and academics who wanted to push forward with scientific property without minding the details, the experts like Ruffini who might say, “Adopt the principle and the difficulties will take care of themselves.” Rogers countered that the patent and copyright laws themselves took hundreds of years to develop, and anticipated that to get scientific property right, “it is going to take a hundred years or more to do it.” Well, we’re now 96 out of 100 years in, but I haven’t seen any evidence that we’re much closer to getting it right.