[In This Issue]
Clark Wolf, Director of Bioethics
The author of the first U.S. Patent Act of 1793 was not a great fan of intellectual property (IP) rights. In a letter to a friend written in 1813, twenty years after the first Patent Act passed through Congress, Thomas Jefferson wrote:
“It has been pretended… that inventors have a natural and exclusive right to their inventions… If nature has made any one thing less susceptible than others of exclusive property, it is the action of the thinking power called an idea. Its peculiar character… is that no one possesses less because every other possesses the whole of it. He who receives an idea from me, receives instruction himself without lessening mine; as he who lights his taper at mine receives light without darkening me.”
Jefferson’s argument has a point. If I illegally grow someone else’s patented seeds in my field, and the patent holder doesn’t discover my piracy, it is likely that the owner will be no worse off than she or he would have been if I had grown some other crop or no crop at all. Unless I am a large volume producer, growing a quantity sufficient to change the market price of the crop in question, it might seem that an individual act of piracy harms no one.
But Jefferson did write our first patent act, and in the end he must be regarded as a defender as well as a critic of intellectual property. In the same letter to Isaac McPherson, he goes on to write:
“Society may give an exclusive right to the profits arising from [creative inventions] as an encouragement to pursue ideas which may produce utility,but this may or may not be done, according to the will and convenience of the society, without claim or complaint from anybody.”
Jefferson did not believe that patents are inappropriate or that they are morally wrong. His claim is that intellectual property rights are not natural rights. This distinguishes them, in his view, from inherent fundamental rights like the right to liberty. Jefferson believed that some rights, like the right to liberty, are inherent and fundamental, possessed equally by all people. These rights are not created by the constitution or by our legal institutions; they are merely secured by them. Thus the obligation to respect these inherent rights is universal whether the person in question is a U.S. citizen or not.
But intellectual property rights are different, Jefferson urged, since they are not natural rights. According to Jefferson, intellectual property rights really are created by the legal institution of patent and by the various other laws that protect various different forms of intellectual property. The goal of patents, in this view, is to provide a spur for creative innovation so that we can all gain benefits from technological advance. Jefferson discussed this issue with James Madison and others, and, in consequence, the Jeffersonian view of intellectual property found expression in Article 1, section 8 of the U.S. Constitution. That article specifically grants to the federal government the power to implement special protections for inventors and creators as a means “to promote the progress of Science and the Useful Arts.” But according to Jefferson, intellectual property institutions and patents are not put in place to protect rights. Patent laws create legal rights where no underlying moral rights exist in advance. Patent rights, Jefferson held, are a convenience, not a moral necessity.
Luther Burbank pursued his work in plant breeding at a time when patent protection was not afforded to innovation in plant science. In a 1911 article titled “How to Judge Novelties,” Burbank wrote that he was pleased with this state of affairs:
“No patents can be obtained on any improvements of plants, and I for one am glad that is so. The reward is in the joy of having done good work, and the impotent envy and jealousy of those who know nothing of the labor and sacrifices necessary, and who are by nature and cultivation kickers rather than lifters.”
But while Burbank was evidently pleased to see the products of his creative work put to productive use, it must have galled him that he received (at that point in his career) so little credit or reward for his efforts. Over time, he seems to have found less joy in the “impotent envy” of the “kickers.” In a letter passed on to Paul Stark and published after his death, Burbank wrote:
“A man can patent a mousetrap or copyright a nasty song, but if he gives the world a new fruit that will add millions to the value of the earth’s annual harvests he will be fortunate if he is rewarded so much as having his name connected with the result. Though the surface of the plant experimentation has thus far been only scratched and there is so much immeasurably important work to be done in this line, I would hesitate to advise a young man, no matter how gifted or devoted, to adopt plant breeding as a life work until America takes some action to protect his unquestioned right to some benefit from his achievements.”
What is this “unquestioned right to some benefit from his achievements” to which Burbank refers in the last sentence? As I interpret this passage, Burbank is expressing his conviction that creators have basic rights in the products of their creative intelligence and hard work, and if institutions fail to protect these rights, inventors have legitimate grounds for complaint. The rights in question cannot be rights, like Jeffersonian patent rights, that are created by the legal institutions that would protect them. Burbank’s view seems to be that people have a natural right to the intellectual property they create, and that institutions should be put in place to secure this antecedently existing right. According to Burbank, it is simply unfair when innovators in plant science are unable to assert legally valid claims in the products of their creative energies. Burbank’s views on this question are at odds with those of Jefferson. Where should our sympathies lie?
I suggest a personal test. Ask yourself whether you are persuaded that Luther Burbank had a legitimate complaint against a U.S. legal system that would not protect his proprietary claims to the results of his creative efforts. Ask “To what extent do I share Burbank’s sense that it is unfair when creative innovators have no control over the technologies they create?” I suggest that the strength of your conviction, if you have one, that Burbank had a legitimate complaint, is a measure of your conviction that intellectual property rights are natural rights that should be protected, not merely rights of convenience that we may protect or not as we see fit. To the extent that you regard Burbank’s complaint as valid, you express your acceptance of a view of intellectual property that is at odds with that of Thomas Jefferson.
In U.S. patent law, Burbank’s view has prevailed to a significant extent. When Congress considered implementation of the Plant Protection Act [PPA] of 1930, Burbank’s letter was introduced into the congressional debate. At this point, the value of Burbank’s research and his life work was unquestioned, and it was quite clear that Burbank had done his work in the absence of patent protection or any other form of intellectual property protection that would have enabled him to glean more financial profit from his research. By many accounts, Burbank’s letter was a crucial document in support of the PPA. (See Wilson 2002, pp. 33-36) But since it was obvious that IP protection was not necessary to spur someone like Burbank to pursue useful research, the motive of those who were persuaded by this letter cannot have been to “promote progress in Science and the Useful Arts.” They must simply have been convinced that creative innovators have basic underlying rights that deserve protection.
The principles that lie behind Jefferson’s and Burbank’s competing views of IP rights are still at odds in contemporary debates about the foundations of IP law. Patterns of reasoning that correspond to each of these views can be found in contemporary legal reasoning on patents and IP.
In Plants, Patents, Property, and Pirates Part II, the next installment of Bioethics in Brief, I will discuss further implications of these different conceptions of intellectual property, and their relevance for contemporary research in biotechnology.
Quotations from Jefferson are from his letter to Isaac McPherson, August 13,1813. They can be found in M.D. Peterson, Ed., The Portable Thomas Jefferson (NY: Penguin Books, 1975) pp. 529-30.
Quotations from Luther Burbank are widely reproduced and referenced in legal discussions of the history of plant patents. They both appear in Jack Wilson’s paper “Patenting Organisms: Intellectual Property Law Meets Biology,” in D. Magnus et al, Eds., Who Owns Life? (NY: Prometheus Books, 2002 pp. 25-58.)
[In This Issue]
Friday, March 30, ISU Lectures Program
4:00 p.m., Gallery Room, Memorial Union, "On John Muir's Trial: Nature in an Age of Liberal Principles," Donald Worster. Information
Volume 9, Issue 1
Published four times per year
by the ISU Office of Biotechnology
and the Bioethics Program.
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Editor: Camie J. Stockhausen
Bioethics Program Coordinator: Clark Wolf
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