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Chapter One

Gold Rush in the

Idea Economy

In the waning years of the twentieth century, in an era of unprecedented technological development and instantaneous telecommunications, freely shared knowledge is becoming an endangered species. In the United States, politicians and pundits spout lofty platitudes about public education and public access to information as the bedrock of democratic society, but reality belies the rhetoric. As ideas, concepts, blueprints, and codes become the most sought-after commodities in our new knowledge-based economy, people are hoarding, fighting over, and seeking to control them as never before. As one intellectual property lawyer put it, today's gold rush on knowledge assets "makes the monopolies of the nineteenth-century robber barons look like penny-ante operations."

Today doctors are claiming to own the medical procedures they once shared openly with colleagues. Software firms are winning monopolies on the basic building blocks of computer code needed to write new programs and using their ownership to stymie would-be competitors. Scientists at the nation's top universities and research institutes complain that collegial discourse has withered in the face of proprietary claims and secrecy among researchers. Drug companies are systematically gathering wild plants, insects, and microorganisms from the globe's far reaches and claiming exclusive dominion over the chemicals they contain. Even our own genetic makeup is being sold: of the portion of the human genome that has been mapped, roughly a third is already privately owned.

Without thoughtful intervention, the current trajectory promises nothing less than an uncontrolled stampede to auction off our technological and cultural heritage, a future of increasing conflict and dissension, and the specter of an ominous descent into a new Dark Age.

To envision where we're headed, imagine a city in which expensive metered taxicabs offer the only means of transportation. Now imagine further that instead of a robust system of public thoroughfares, the city offers only a labyrinthine collection of separate, privately owned roads, pockmarked by barricades, guarded checkpoints, and costly tolls. People must spend a large portion of their income and even more of their time getting from one place to another. Face-to-face gatherings of people from disparate parts of town are rare; casual, spontaneous meetings, almost nonexistent. Not only does commerce suffer, its shape disproportionally caters to the rare few who can afford to navigate effectively. Such a world differs so radically from the freedom of movement we take for granted that it is almost hard to picture. Taxis and toll roads can certainly be useful tools as part of a diverse transportation system. But they cannot function successfully in the absence of a shared infrastructure.

The same holds true of the domain commonly known as intellectual property. Ideas, formulas, and concepts need to move, just as people do, and the image of a subdivided and barricaded world captures many aspects of the emerging knowledge economy unless we intervene quickly to change it.

Already we see an unprecedented profusion of intellectual property litigation. Hospitals are battling with researchers over rights to control new treatments, universities haul faculty members into court to establish who will profit from their research, and genetic engineering firms wage seemingly endless fights over proprietary rights to techniques and materials. Shakespearean scholars have even gone to court over who owns rights to a particular interpretation of Hamlet .

The bards of the new economy tell us repeatedly that knowledge is now a corporation's most valuable resource. "The most important form of property is now intangible. It is super-symbolic. It is knowledge," write high-tech gurus Alvin and Heidi Toffler, for instance. "Knowledge becomes the ultimate substitute -- the central resource of an advanced economy," they contend, "because it reduces the need for raw materials, labor, time, space, capital and other inputs."

As Alvin Toffler notes, the knowledge economy was heralded in 1956, the year blue-collar manufacturing workers ceased to be a majority of the U.S. workforce, surpassed by white-collar, service-oriented employees. In a parallel progression, given the structure of what Newsweek has called the "New Economy of Ideas," we are moving steadily toward a situation in which many companies will earn the bulk of their profits not as manufacturers but as titleholders and gatekeepers to fiefdoms of knowledge. Over the past several years the electronics firm Texas Instruments has earned a larger portion of its $200 million in annual profits from licensing patents and winning infringement cases than from selling products. With scores of patents covering many of the basic techniques for manufacturing computer chips, Texas Instruments is in a strong position to pull off such a feat. But in the current economy, the firm must be seen as a harbinger of things to come.

What happens when businesses, governmental agencies, and academic institutions earn the majority of their profits from their intellectual property holdings?

Imagine you are dying of cancer and could be aided by a life-saving, FDA-approved cancer treatment developed by a new drug company. But your doctor can't give it to you because a rival pharmaceutical firm -- which has no comparable product of its own -- wins a court order to halt the sale of the treatment, claiming to own a segment of its underlying technology.

Imagine you are a university researcher who makes a lucrative discovery during long hours in the lab. But a dispute over ownership rights turns so bitter that you wind up in prison after the university successfully presses criminal charges, alleging that your ideas are in fact the university's stolen intellectual property.

Imagine you are a farmer who, after harvesting your crop, learns that it is not entirely yours: the agrochemical firm that sold you the seeds says you can't replant a portion of your harvest as seed for next year's crop, as your family has done for generations, because the company owns the crop's germplasm -- its blueprint -- even in successive generations.

Do these scenarios seem farfetched and extreme? All of them are drawn from legal cases that have already occurred . Nor can any of them be easily dismissed as an anomaly; rather, as a tiny sampling of the skirmishes breaking out regularly on the frontlines of the knowledge wars, they suggest an emerging norm.

The fact is, in almost every high-tech field from software design to agribusiness, the push to own the rights to information, concepts, and techniques raises a host of difficult questions. Who will have -- or lose -- access to the world's knowledge and at what cost? Is owning rights to a concept really akin to owning a piece of real estate, as the phrase "intellectual property" implies? Are there some types of know-how that shouldn't be bought and sold?

Questions like these have long occupied philosophers and legal scholars, but they have so far been largely absent from public debate. Today, however, none of us can afford to remain uninformed or silent. The challenge before us all, as participants in a democracy, is to lay bare the fundamental fallacy of a system that lavishly rewards the incremental innovations of individuals but ignores our collective stake in society's accumulated wealth of know-how. Rectifying the situation will not be easy. It will require nothing short of remaking the civic sphere, deciding which pieces of our intellectual and cultural heritage should be collectively preserved and even subsidized as part of the public domain. But the stakes match the immensity of the challenge: nothing less than the integrity of our shared civic institutions rests on the outcome.

Where Do We Begin?

The first issue to examine is the expansion of the notion of ownership into the conceptual realm. In theory, patents and copyrights were designed to give people special rights, not to ideas as such but to their practical applications (in the case of patents) and to their particular expression (as covered by copyright). In the past only tangible innovations could be patented. Up until 1870 the U.S. Patent Office even required patent applicants to submit physical models of their inventions. But twice in the 1800s, the agency's grand and unruly gallery of models burned to the ground and, partly to avoid the costs of storing them, Congress finally dropped that requirement in 1870. That change was a loss for the public. For one thing, the models, housed in Washington, D.C., attracted up to ten thousand visitors per month, bespeaking a degree of public interest and involvement in the patent process rarely matched since. Equally important, the requirement rooted the patent system to reality, by reflecting the standard that a patent should cover some thing -- either a machine or the embodiment of a particular process -- that yields a material result.

Today the patent system has moved so far away from this concrete interpretation of intellectual property that the notion of requiring a model is almost unthinkable. More and more patents cover what some have termed "actionable knowledge," such as the composition of a gene that might be useful in a medical therapy or a programming technique that facilitates a variety of software applications. As Wallace Judd, a computer programmer and president of California-based Mentrix Corporation, has noted, rather than protecting a particular innovation, the current system often authorizes exclusive control of a broad concept. The difference, Judd says, is between a patent on a particular improved mousetrap and a monopoly on the idea of trapping mice. In practice, the distinction Judd notes can be surprisingly subtle. Unfortunately, especially in a knowledge-based economy, it is exceedingly difficult to distinguish between the two types of claims.

The implications of the change are profound. The benefit of allowing someone to protect their particular innovation in mousetrap design is clear: it offers an incentive for people to bring new inventions to the market and allows them to more easily recoup their research costs, safe in the knowledge that their hard-earned design won't be stolen. Patent Office representative Charles Van Horn explains that the power of patents derives from their unique ability to allow the bearer "the crucial right to exclude others." This protection, he says, "enables a person who is licensed by a patent holder to invest the dollars often necessary to bring an idea to the public." Van Horn's point is arguable, though it seems plausible enough when applied to specific innovations. But most people would agree that conferring exclusive rights to the concept of trapping mice gives the lucky patent owner an unfair advantage and establishes a new tollbooth where there needn't be one.

A growing number of scientists, business executives, and even patent lawyers worry that the system has gone awry. Many argue that our patent system has not adapted to the radically new kinds of claims now being foisted upon it. It doesn't help matters that the system is vested in age-old ideas about land ownership, as indicated by the term "intellectual property ," as well as by the way the Patent Office files ownership claims to this highly conceptual landscape. Even though the quantity of paper at the U.S. Patent Office has grown phenomenally, the design of the system hasn't changed since Thomas Jefferson, the nation's first patent administrator, devised it. In a rabbit's warren of a library, the stapled sheaves of paper establishing each individual patent are stacked chronologically in piles of precisely defined categories within "shoebox" file drawers. Hundreds of rows of these drawers cover aisle after aisle from floor to ceiling in a system that emulates the way a registry of deeds accounts for parcels of land. Yet this antiquated, property-based system must now cope with what John Perry Barlow, former Grateful Dead lyricist cum commentator on cyberspace, has nicely termed "the most unreal estate imaginable."

In the United States today, the courts are conflicted about whether you own the rights to your own telephone number, your genetic material, or even your life story. But what does seem largely settled is that all this unreal estate can legitimately be traded, bought, and sold. From U.S. Supreme Court rulings to international trade negotiations, the industrialized world has moved surprisingly swiftly to institutionalize the notion of knowledge as a commodity. Unfortunately for most of us, many of the key decisions that have solidified this expansive view of ownership have come about with little public debate. Because these new realms are still so poorly understood, and we lack a workable framework to effectively delimit the scope of intellectual property claims, it seems that anything can be owned today.

Part of the problem reflects Judd's mousetrap complaint: the difficulty, especially in high-tech fields, of drawing a line between a specific invention and an entire area of endeavor.

When the Wisconsin-based biotechnology firm Agracetus succeeded in inserting particular genes into cotton in 1988, it sought patent protection not for its modified cotton plant or its novel process, but for all genetically engineered cotton achieved by any means. The U.S. Patent Office initially said yes, then changed its mind after a chorus of objections. The ensuing legal battle has yet to be fully resolved.

When a team of researchers at the National Institutes of Health (NIH) made medical history by employing a new technique to successfully treat two girls with a rare genetic disorder, they parlayed the experiment into a patent on all so-called ex vivo human gene therapy. The claim is so vast that doctors around the country watched dumbstruck as exclusive rights to an entire new field of medicine were sold to the highest bidder, ultimately, in this case, a Swiss pharmaceutical firm.

Or take a case straight out of Jurassic Park . The premise of Michael Crichton's book and the subsequent blockbuster movie was that mosquitoes, hermetically encased in amber for millennia, contained in their bellies the DNA of dinosaurs they had bitten -- DNA that could be used to clone the Jurassic creatures. Crichton made a fortune by bringing the idea to the public, but in fact a private titleholder owns any conceivable application that might derive from the concept of using ancient DNA encased in amber. In a well-publicized and controversial experiment in 1995, Raul J. Cano, a prominent molecular biologist and founder of the San Francisco-based Ambergen Corporation, claimed to have successfully extracted DNA from an ancient microorganism trapped in amber. Many scientists expressed skepticism, speculating that the purportedly ancient genes Cano found might have derived from modern-day microorganisms contaminating his samples. But the skeptics are not allowed to freely replicate the experiment, as scientific tradition would dictate. Based on his single experiment, Cano garnered a patent that gives him two decades of exclusive rights: not to the microorganism he found or to the method he used to extract it, but to the recovery of any and all organisms -- bacteria, fungi, protozoa, viruses, microalgae, pollen, or arthropods -- from amber or other natural resins. Even Albert P. Halluin, Cano's patent lawyer, concedes that the monopoly ownership Cano won is "extremely broad."

The U.S. patent system, like its European forebears, was designed to reward innovation, guard against secrecy, and, as Abraham Lincoln once put it, to add "the fuel of interest to the fire of genius." The idea is that by offering an inventor monopoly protection for individual inventions, the government can help spur innovation. The notion has, by any estimation, been a powerful and fruitful one. Many of today's patents, however, make a mockery of these idealized goals. Even Forbes magazine, not known for its radical critiques of capitalism, decried the situation in an editorial in 1993. Especially in high-tech fields, Forbes editors wrote, "the patent system has become a lottery in which one lucky inventor gets sweeping rights to a whole class of inventions, and stymies development by inventors."

But the problem goes well beyond the issuance of unfathomably broad patents. Take the case of Ashleigh Brilliant, a California-based writer and former history professor who, notwithstanding his last name, makes his living largely by coining prosaic sayings and claiming private ownership of them. So far, Brilliant has copyrighted more than 7,500 aphorisms. Former television newscaster David Brinkley learned about Brilliant's literary legerdemain the hard way. When Brinkley published his 1996 memoir, Everybody Is Entitled to My Opinion , Brilliant sued, documenting that he had copyrighted that saying years before. Brinkley called it "a shakedown," but his publisher, Random House, quietly coughed up royalties for use of the expression. The case was but one of more than a hundred infringement cases Brilliant has successfully mounted.

Corporations, of course, have long registered their pithy slogans and jingles as company trademarks and, like Brilliant, threatened lawsuits to prevent others from using them. But today these kinds of ownership claims have ballooned into unprecedented realms. The Chicago-based Qualitex Company successfully claimed exclusive rights to a color: the "special shade of greengold" of pads they manufacture for dry-cleaning presses. In a case that reached the U.S. Supreme Court in 1995, Qualitex blocked a rival manufacturer from making a green-gold pad by claiming to own that particular hue as a company trademark. The high court ruled that Qualitex had a valid claim to the color. How could they rule otherwise, Justice Stephen G. Breyer asked in the decision, considering that the courts had already allowed companies to own sounds (such as those three chimes NBC uses with its peacock logo) and even fragrances (in a case allowing a company exclusive use of a scent on sewing thread)?

The examples seem fanciful, but the climate is insidious. The Mattel Corporation, for instance, has hauled a publishing firm into court for producing a hobby magazine for Barbie enthusiasts. Mattel argues that its ownership claims on Barbie extend to the realm of publications about the doll. The esteemed British mathematician Sir Roger Penrose claims rights to a nonrepeating geometric pattern he discovered. Sir Penrose is suing Kimberly-Clark for putting the pattern on its Kleenex brand of quilted toilet paper. One Manhattan law firm specializing in intellectual property law is now even arguing that professional athletes may have the legal right to patent or copyright unique moves that they use in competition, thereby, at least theoretically, preventing their opponents from using them.

Is there no limit to what people or companies can own? Should there be? Several recent court cases have come up against this question when firms have claimed rights to their employees' thoughts. In a case now on appeal, a Texas court ordered Evan Brown, a computer programmer, to reveal his idea for a software procedure to his former employer, DSC Communications of Plano, Texas, even though Brown had never used or developed the notion during his tenure with the firm.

Brown's case grew out of a bitter severance. Brown had been fired after working at DSC for ten years. But before leaving the company, he had mentioned to higher-ups his idea for a program that could automatically convert old software code into newer language. DSC has -- so far successfully -- claimed rights to this information, arguing that it is covered in an employment agreement Brown signed. The provision in question claims that all ideas an employee might have that relate to DSC's line of business are the rightful property of the company. The company's position, as its general counsel, George Bunt, explains, is, "If a janitor came up with a method of cleaning a hardwood floor suggested to him by his work in cleaning a DSC hardwood floor, technically the idea belongs to DSC."

These kinds of far-reaching claims to intellectual property contribute directly to a stifled research environment. American University law professor James Boyle, one of a new generation of intellectual property specialists to examine the issue, warns, "At some point, the public domain will be so diminished that future creators will be prevented from creating because they won't be able to afford the raw materials they need. An intellectual property system has to insure that the fertile public domain is not converted into a fallow landscape of walled private plots."

Few realize the extent to which we risk just such a fallow landscape. To get a sense of this problem, let's say that you develop a new razor and want to bring it to market. Your chances of success are extremely slim, and not just because a few large firms dominate the production and distribution of razors. To an astonishing extent, these large firms own the useful know-how amassed to date about shaving. No fewer than seventeen patents are listed on the package of Gillette's nonelectric sensor razor. If you, undeterred by the patent portfolios of Gillette and other firms, decide to investigate the matter further at the U.S. Patent Office library, you would face a baffling maze of narrow subdivisions, all laid out and designated like so many reserved parking spaces. Within the large and mature patent category covering cutlery, called Class 30, for instance, section 32 covers "razors with waste-collecting, razor-cleaning and/or dispensing"; section 43.1 covers "razor adjusting means." If your razor happened to tilt with respect to the handle, it would likely infringe U.S. Patent No. 4,026,016 -- one of the Gillette razor's seventeen -- that stakes a claim to a particular design for a "Razor Blade Assembly" allowing for a tilting blade.

What happens, though, when such proliferating mini-monopolies infiltrate more conceptual realms? Supposedly the Patent Office exempts scientific laws from consideration, but in 1995 Richard Stallman, a computer programmer and well-known critic of the patent system, testified that, in an effort to test the system, a colleague of his succeeded in winning a patent on Kirchoff's Law--an 1845 scientific theory holding that the electric current flowing into a junction equals the current flowing out. In 1994 Roger Schlafly, a California mathematician, even successfully staked a patent claim over two large prime numbers that can be used together as part of a program to encrypt electronic mail. Technically the patent gives Schlafly the legal right to sue anybody in the United States for using his numbers without permission. "I was kind of interested in pushing the system to see how far you could go with allowable claims," Schlafly told a reporter. But, as Schlafly noted, the numbers do satisfy the U.S. Patent Office's age-old conditions for patentability: they are useful, have not been employed similarly before, and their inclusion in this encryption technique is not obvious to a practitioner in the field.

When she learned of the Schlafly prime-number patent, law professor Pamela Samuelson (now at the University of California at Berkeley), an expert on software patents and copyrights, called it "outrageous" arguing that Schlafly's claims expanded the patent system far beyond legal precedent. But Samuelson couldn't say she was surprised. She had warned, back in 1989, of an impending "crisis in intellectual property law" as an "explosive growth of new technologies" stretches our system of intellectual property into ill-fitting new realms.

In the United States, Congress, state and federal courts, and the largest corporations have begun to fashion the institutional framework for a pervasive, expanded definition of ownership covering everything from the languages computers speak to natural functions of the human body. But for all these bureaucratic changes, few have addressed the vital issue of how society's valuable knowledge assets are now being apportioned. Left unchecked, the rush to claim nuggets of the knowledge economy threatens to limit our choice and diversity, stifle innovation, and foster needless monopolies that will increase the cost of goods and services we now take for granted. Most importantly, it threatens to widen even further the disparity between the haves and the have-nots.

Information and knowledge are not only the preferred new currency of commerce, they are also the enduring lifeblood of our civic culture. In the rush to claim terrain, most players in the new knowledge economy are ignoring this basic fact. An economy of ideas that is not tempered by a sense of civic-minded purpose is a disaster waiting to happen. Even a cursory survey finds administrators of libraries, museums, hospitals, photographic archives, universities, and research institutes all confronting unprecedented commercial pressures from companies and individuals staking private claims to material formerly considered part of the public domain. In each case the private claims threaten the viability of these organizations' public missions.

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Owning the Future : Staking Claims on the Knowledge Frontier

0395841755

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