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The post-COVID era has been especially hard on patent lawyers working in the biopharma space.
“I don’t think it’s an accident that during the COVID pandemic, we saw bus signs that said patents kill,” said Emily Michiko Morris, David. L. Brennan Endowed Chair and Associate Director of the Center for Intellectual Property Law & Technology at the University of Akron School of Law. “And being an academic who is critiquing that narrative is not always easy.”
Her comments were made during November’s Biotechnology Innovation Organization (BIO) IP Counsel Committee Conference for the event’s Fireside Chat. Yet, as panelists discussed, IP rights are drivers of innovation, not frustrators of it, and protecting patent rights is paramount to ensuring continued innovation in the years to come.
A tough era for IP law
“Some of you may remember that when you started law school, a lot of law schools did not offer classes in IP,” recalled Morris. “And schools certainly didn’t offer classes in patent law. So it’s only been recently, in the last 15 years or so, that IP has really come to the fore. But unfortunately, I think we also live in an era of history in which IP is viewed with a fair amount of skepticism and even derision in some cases.”
But as Morris notes, the popularity and derision of patent law is a pendulum swing.
“I tell my students, enthusiasm around the patent system kind of waxes and wanes throughout history,” Morris said, noting that the 80’s saw a great deal of enthusiasm around patents, as well as around the technology they were protecting.
“But now we live in a society where people are suspicious of the technology itself,” she continued, “and therefore they are certainly going to be suspicious of any kind of patent rights on these technologies—and particularly when it comes to biopharmaceuticals. I think everyone rightly feels that healthcare is a right, and that anything that stands between you and the care you need, necessarily should be removed as a barrier.”
The point of healthcare is to get it to patient populations, the problem, panelists noted, is that there are a number of damaging misperceptions about what role patent law and IP rights, more generally, play in that particular dynamic.
Two areas of research against each other
“I think the connection between the thought leadership that comes out of academia and the policy actions that we get in DC and elsewhere is important,” said Jonathan Barnett, Torrey H. Webb Professor of Law at USC Gould School of Law. “It’s worth understanding that transmission mechanism, in part because, unfortunately, sometimes policy actions, both in the life sciences and IT space, are not based on sound evidence.”
The reason for this, Barnett asserts, is that there tends to be two big categories of scholarly writing when it comes to patent law.
“On the one hand, there’s ideological writing, and that theoretically could be pro-patent, but it’s almost universally anti-patent,” Barnett stated. “These are scholars who often have an ideological commitment against the notion of any form of property rights or a secure form of property rights in the biopharmaceutical area.”
The other area of research, Barnett continued, encompasses but extends beyond legal academia and incorporates economic principles and methodologies.
“It’s evidence-based. It’s fact-based. And it tends not to be ideological,” said Barnett. “What I think we need to work towards is a transmission mechanism that filters in fact-based arguments and filters out ideological arguments. But that can sometimes be challenging when you start to interact with policy makers who themselves may have certain ideological predispositions or favor certain constituencies.”
And unfortunately, the polarized research on IP law is reflected in the polarization of public policy, leading to the phenomenon of evidence-based policy being replaced by ideologically driven policy.
“When you look at some of the rhetoric that people use, it’s surprising that people are not being as objective as they should when it comes to biopharmaceuticals,” noted Morris. “I tell people, if you’re in biopharmaceuticals and you’re doing anything in the IP space, particularly the patent space, it is presumed (until you rebut it with clear and convincing evidence) that whatever you are doing is for strategic reasons and solely to raise prices and maintain prices at very high levels.”
But the polarization, Barnett noted, is simply not painting the full picture.
It’s more complicated
Barnett’s book, The Big Steal, dives into just how complicated the world of patent law can be by investigating how the mix of ideological beliefs and business interests drove a broad weakening of U.S. patent and copyright protections just as the digital economy and platform markets were rising. Throughout his entire research, he found a repeated pattern.
“What happens is that there’s initially a study with a provocative finding that fits an existing narrative. It’s typically a theoretical argument with an anecdotal fact,” he began. “But then empirical researchers step in and test that theory. And what they typically find is either the world’s more complicated or that result usually doesn’t hold.”
Case closed right? No.
“If you look at the citations, what you find is that the original study, even though it has been heavily qualified or rebutted, continues to receive far more citations than all of the other studies,” Barnett said.
“If you’re mostly not being careful about proving actual causation, it’s really easy to just churn that out,” added Morris. “And it’s really easy to make a nice sound bite out of it that’s going to be cited time and time and time again. But, if you’re explaining, you’re losing. And if you’re having to explain the facts on the ground, you’re fighting an uphill battle.”
But despite that uphill battle, the panelists did see opportunities for improvement. “Part of the gap in the literature is that many researchers just don’t understand industry, so interfacing with industry helps us,” he concluded.
The BIO IPCC Conference is one such event where academics can interface with industry, but Barnett mentioned another initiative that he developed with colleagues at the University of Gothenburg and UC Berkeley: the Eira Initiative, which also works to connect industry with academia.
“Hopefully our collective efforts will bear fruit,” he added.
Likewise, Morris is part of the long-standing Intellectual Property Policy Institute (IPPI) at the University of Akron, which promotes rigorous, fact-based research on how intellectual property rights support innovation and creativity.
Indeed, with concerted and consistent collaboration and education, IP and biopharma experts are confident that they can turn the tide from anti- to pro-patent in the coming years.
