Around MIT, Jerome Lemelson is a hallowed name. The late inventor’s 500- plus patents (more than any other individual save Thomas Edison) earned him enough to endow the Institute’s $500,000 Lemelson Prize for technological innovation. But to Seth Shulman, a journalist who is a frequent contributor to TR and a former Knight Science Journalism Fellow at MIT, Lemelson’s success epitomizes a growing scandal in the United States: the privatization of the “conceptual commons. ”
Shulman writes that Lemelson was often the first to file for a patent on ideas circulating in the intellectual air, such as combining videotape and the TV camera in the hand-held camcorder. Even if he never built a working model or his patent was issued belatedly, the priority of his claim allowed him to hold whole industries hostage, Shulman argues. “Lemelson’s technique -one he repeated throughout his career -was to demand royalties from the companies with existing products that could be construed as infringing his broad claims.”
“Charging rent on dreams,” Shulman calls it, and Lemelson is hardly the only one criticized for this practice in his book. Physicians patenting surgical procedures, seed companies suing farmers for selling part of a genetically engineered crop to neighbors for seed, and pharmaceutical firms purveying drugs derived from tropical plants without paying a cent to the indigenous tribes who first noticed their curative powers all come under Shulman’s lens. His book amounts to an eloquent warning against what he describes as “an uncontrolled stampede to auction off our technological and cultural heritage.”
The central problem, as Shulman sees it, is that the U.S. Patent Office has become remarkably generous in its evaluation of the traits that make an invention patentable, such as “novel,”“non-obvious,” and “made by man.”Many patented concepts today, such as the nucleotide sequence of a gene or a mathematical algorithm in a piece of software aren’t inventions at all but instead inhabit a nebulous zone experts call “actionable knowledge.” Far from spurring innovation, as the patent system was designed to do, the patenting of actionable knowledge threatens the free exchange of information and gives individuals and corporations a legal chokehold over ideas that should benefit all, Shulman contends.
The alternatives, unfortunately, are themselves non-obvious. Since the patent system is still mired in the language of land ownership-as evidenced by the term “intellectual property”-one solution might be to create the conceptual equivalents of national parks and zoning laws, he suggests. It’s an intriguing idea, and one that deserves further exploration. Somehow, we should all profit from the private redevelopment of the conceptual commons.