According to the July 14 issue of The Indiana Lawyer, “During the last decade, the number of patent infringement cases filed in U.S. courts has increased nearly 74 percent.” This upward trend in patent litigation is likely to continue as the field of biotechnology research expands. Newly awarded patents cover such items as technology that allows for targeted therapeutic gene replacement and the discovery of genetic markers that identify women who are more likely to experience early-onset menopause.
These developments remind us of the good and bad aspects of the constant influx of new ideas into the world and the creative individuals who stand behind them. Inventors are those imaginative people who court the borders of the possible, ingeniously turning ideas into realities and theory into practice. In such processes, action – and therefore moral decision-making –cannot be avoided. Inventors face countless moral questions. Does my invention use the proper means to attain its ends? Will my product enhance morally sound behaviors and practices? Who can justly reap the benefits of my innovation? The faithful inventor might continue on, "Will my invention help or hinder people in their quest to know God?"
A Christian Foundation
Behind these questions lie the intimately related issues of ownership, private property, and patents. Understanding Christian doctrines supporting private property can help us begin to analyze the compatibility of Christian teachings and patents, laying a moral framework for evaluating the patent system as a whole.
According to Christian teaching, God has destined the earth and all it contains for the use of all human individuals. This “universal destination of goods” does not mean that in the beginning human persons jointly owned the material world, with each having an equal share. Rather, it means that nothing in “subhuman” creation ever comes with a label saying: “this good is meant for this person but not that one, this group but not that.” In the beginning and now, God provides material goods for the use of all.
Private property is the way in which humans realize this universal destination of material goods in a way that promotes human moral, spiritual, and material flourishing. The biblical commandment, “Do not steal,” reminds us that private property is the normative way through which the world's goods are possessed, used, consumed, and exchanged.
By making free exchange possible, property allows us to satisfy our needs without resorting to force. Private property allows people to have secure, uncontested use of those goods that are necessary for people to fulfill their specific vocation from God. It also acknowledges the fact that, as Thomas Aquinas notes, things owned in common tend not to be looked after as well as things owned individually.
Into the Realm of Ideas
Thus, private property is an idea central to the promotion of both virtue and the public good. The nature of patent protection extends this logic into the realm of “intellectual property,” or ownership of ideas, processes, and new inventions. A patent, according to the United States Patent and Trademark Office, is “a property right granted ... to exclude others from making, using, offering for sale, or selling the invention ... for a limited time in exchange for public disclosure of the invention when the patent is granted.” Abraham Lincoln bespoke the value of this legal mechanism: “The Patent System added the fuel of interest to the fire of genius.”
Patents are granted when the invention meets the requirements of newness (non-obvious, a novelty), usefulness (utility, industrial applicability), clarity (meaning the inventor provides a detailed description allowing others to see exactly what was done), and evidence of an inventive step (human ingenuity).
The patent process is an incentive for investors and researchers, who can't afford to take risks without the possibility of earning back the costs of research and development. James E. Rogan, former director of the United States Patent and Trademark Office, has described the heavy financial burden of research in the pharmaceutical industry in an interview in Religion and Liberty: “The average cost of bringing one new medicine to market is approximately $500 million. ... On average, only three out of every ten prescription drugs generate enough revenue to meet or exceed average research and development costs.”
The patent process encourages the advancement and continuation of scientific and other kinds of research into more and better ways of being stewards of our talents and resources on this earth. As the Biotechnology Industry Organization (BIO) points out in its Primer: Genome and Genetic Research, Patent Protection and Twenty-first Century Medicine, “Obtaining a patent is just one way of releasing information into the public domain.” However, this one way often provides the greatest incentive to share the wealth of knowledge. In the end, it is this knowledge that is most critical to the advancement of research, especially considering that patents don't last forever.
We must not forget that by ensuring that scientists and companies have a personal stake in the success of their work, the benefits of morally licit research accrue to all of society in the form of better medicines and other products that alleviate suffering in the world. After all, as Justice Felix Frankfurter so aptly noted, “The average person reaps the benefits of this form of property, because the inventor has created it under a patent system that rewards the inventor only if society does derive benefit from it."