This trend rose up to bite academia on the behind in 2002, when Duke University lost an important case in federal court. To fend off a claim that its physics lab infringed on a former professor's patents, Duke asserted the "experimental use" exemption in patent law, which gave researchers doing purely academic work immunity from patent infringement claims.
But a federal appeals court found that Duke was, at heart, a business -- albeit one largely devoted to academic research. The judges pointed out that the university wasn't shy about "pursuing an aggressive patent licensing program" of its own. They narrowed the experimental use exemption to a pinprick, applying it only to research done "solely for amusement, to satisfy idle curiosity, or for strictly philosophical inquiry." The Supreme Court upheld the interpretation in 2003, jacking up the cost of basic research for everyone.
Navigating through patent thickets has become a permanent, and costly, part of any researcher's existence, especially in the life sciences.
Graff says this phenomenon is becoming especially pronounced in stem cell science, which is especially dependent on collaboration but is already being cordoned off by commercial entities claiming property rights to essential research. The best solution, he says, may be for academic institutions -- where 45% of all stem cell research is performed -- to create collaborative patent pools so they can more freely disseminate information and technology without giving up all their potentially lucrative patent rights.
Until that happens, however, programs like CHOC's will remain at the mercy of patent holders. Dethlefs says he believes that neural stem cells could be an important therapeutic tool and that Schwartz's program fed directly into CHOC's responsibility to serve its patients. Meanwhile, he says, "we're considering our options," which is the sort of thing you hear from people who don't have many options.
--
Michael Hiltzik's column appears Mondays and Thursdays.
Reach him at michael.hiltzik@latimes.com, read his previous columns at www.latimes.com/hiltzik, and follow @latimeshiltzik on Twitter.
