Open house or closed shop? - Who Owns Science? - private ownership of scientific discoveries and inventions - Cover Story

As a result of hothouse pressure to patent scientific discoveries, the debate and sharing of experimental results that traditionally stimulated research are giving way to a culture of secrecy

There was a time when basic scientific knowledge was considered primarily to be a public good. The argument was that since most of it was produced through public funding - namely the government's support of universities - and intended to benefit society as a whole, no one should be able to control access to it by others.

Today, however, all that has changed. The key role of science at the heart of the modern "knowledge economy" means that what was previously seen as a public good is being transformed into a private commodity.

Two industries in particular have been responsible for this shift. One is the biotechnology industry, where information about the detailed structure of living cells and individual genes, previously of interest primarily to the laboratory biologist, now offers the possibility of being rapidly transformed into profitable pharmaceutical products or medical screening technologies.

The second is the information technology industry. Up to now, mathematical formulae were considered to be too abstract - and, by implication, too accessible to anyone with the appropriate intellectual skills - to be considered private property. But the reliance of high-powered computing on sophisticated mathematical algorithms has led to a growing acceptance that even mathematical formulae can in certain circumstances be treated as private property.

A controversial trend

Under challenge in both cases is an important distinction that, previously, was used to define the limit of what could be patented. This is the distinction between a scientific "discovery" (which could not be patented) and a technical "invention" (which can).

Today, however, the speed with which scientific discoveries can be turned into technical products and the large commercial profits that can be generated by this process means that, in practice, the distinction between discovery and invention has become blurred. As a result, the moral distinction between what should and what should not be patented has once again become highly contentious.

Industry's argument is straightforward. If it has "paid" for a certain useful scientific discovery by supporting the scientists - either in its own laboratories, or even in a university - who made it, then it has a right to seek a return on its investment by charging others for using this discovery (or even keeping it for its own exclusive use).

"In practice, the distinction between invention and discovery in areas such as genetics and information technology is becoming increasingly meaningless and irrelevant," says patent lawyer Simon Cohen of the London-based company Taylor Johnson Garrett.

This interpretation is increasingly accepted by the courts. In a number of landmark cases, for example, both U.S. and European courts have upheld the claim that the knowledge of the sequence of chemical bases that makes up a human or animal gene - whose undisputed status as a major "discovery" is endorsed by its announcement in the pages of prestigious journals such as Nature and Science - can be patented.

The only caveat is that this knowledge must be shown to have some potential commercial value. But that is seldom difficult to demonstrate, for example by using knowledge of, say, a gene discovered to be involved in breast cancer to design a test to seek out mutations in the gene that indicate increased susceptibility to the disease. The courts have given similar endorsement to the patenting of mathematical algorithms.

At the same time, however, this trend - and particularly the patenting of scientific discoveries on living processes such as animal cell lines or genetically engineered animals - has become increasingly the target of critics such as environmentalists and animal rights supporters concerned at the potential implications on control of access to scientific knowledge that it represents.

Three criticisms in particular are being widely heard. The first, primarily from the scientific community, is that the growing ability to patent scientific "discoveries" is encouraging researchers to construct a wall of secrecy around their work that directly challenges the traditions of open communication on which modem science has depended for its vitality and success.

Up to now, science has thrived on the sharing of experimental results, often very preliminary, between colleagues. Much of science develops through debates that take place in forums that can range from the laboratory coffee room to international conferences.

But scientists are now being warned that, if they discuss their results openly prior to publishing them in a scientific journal, they run two risks. One is that, if someone reports these discussions - for example, in the proceedings of a conference - this can be taken as a form of "publication" that can jeopardize their chance of being awarded a patent.

This is because, at least in Europe, a patent application must be made before an invention or discovery is made public (the rules in the United States are more flexible, allowing a scientist a "grace period" of 12 months after publication of a new discovery during which a patent application can be filed).

The second risk is that an unscrupulous colleague, overhearing an original idea from another researcher, may hastily incorporate it into his or her own patent application, without divulging where the idea originated from.

In order to avoid either situation arising, scientists are now being advised - for example, by patent lawyers - not to divulge their results to colleagues until it has been completed and full patent protection has been applied for.

Secrecy on the campus

The result is a growing "culture of secrecy" in universities where even researchers working in neighbouring laboratories are reported to be increasingly reluctant to discuss their findings, even though failure to do so may slow down the scientific discovery process.

The issue of growing secrecy on university campuses was highlighted at a recent meeting sponsored jointly by the Massachusetts Institute of Technology and the American Association for the Advancement of Science.

"Part of the failure lies with academics who think 'by God, I'm going to be rich," Alan Goldhammer of the Biotechnology Industry Organization told the meeting. John Deutch, former dean of science at MIT, described secrecy as "a major threat to science and . . . antithetical to the purpose of universities."

A second criticism, coming mainly from critics of genetic engineering, is that permitting patents on biomedical discoveries - such as new genes, or even parts of genes - is inherently immoral, as humans have no moral basis for claiming commercial rights over living matter.

The third question addresses the issue of North-South equity in a world where both scientific knowledge and economic power are unequally divided. Here the argument is that those countries that are already the most economically powerful are being allowed to increase their dominance by exploiting the fact that they also control access to the scientific knowledge that increasingly provides the basis of this power.

The battle is far from over. Many scientists, for example, are now insisting that information derived from their efforts be placed in the public domain. Those attending an international meeting in Bermuda in February 1996, for example, designed to establish a common framework for human genome sequencing - deciphering the precise sequence of the amino-acid bases that make up a single strand of human DNA - urged that all sequence data produced by centres funded for large-scale sequencing should be placed in the public domain.

Most of those engaged in these debates accept that the distinction between discovery and invention is no longer, in itself, a valid basis for determining the boundary line between public and private knowledge. The challenge ahead is to rewrite the rules of the game in a socially equitable and morally acceptable way.

David Dickson, British journalist

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