What if the solution to global warming was known, patented and withheld?
We’ve all heard this one before. The solution to global warming (read: fuel efficiency, cleaner water, cold fusion, perpetual motion, etc) has already been found, patented and withheld by a secretive organisation that will unveil it at the last minute when it suits their broader commercial objectives. At the moment they are making too much money from fossil fuels (etc etc) to bother rolling this new amazing technology out, but it will come, right when it suits them most.
Amongst the general public this is a frequent issue raised – what if someone patents the technology but fails to bring it to market for the benefit of everyone? Shouldn’t patents reward bringing the technology to commercial use, shouldn’t the period of monopoly depend on that? Well maybe that could actually work. (You get say 10 years and then another 10 after providing evidence of commercial use.) But that’s a separate discussion.
So, patent lawyers the world over will cite compulsory and crown use licenses as the eternal fix-all for such situations – if you don’t use your patented technology within a set period (usually around 5 years) then in almost every country in the world, a third party has the ability to ask the court for a licence.
Sure.
But who has heard of this problem actually being real let alone widespread? How many cases are there where the technology never makes it to market at all? (And we’re not talking here about technology utilised in some but not all countries, such as pharmaceuticals.)
There are very few if any proven examples of this. Why is that?
This was all sparked by a recent question sent to me from Denmark via the illustrious Jeremy Philips:
"Do you know of any interesting scientific evidence or comment that points directly to (specific) patent owners withholding patents? …I am speaking with a non-patent audience – as business people, they are very interested in practical illustrations of course…"
Here’s part of my answer, what would you add?
"I’m not aware of any clear-cut cases. The problem is that there is such a large gap between filing a patent application and getting a product to market that it is not a simple task at all to interpolate that a product was kept from the market after being ‘patented’.
There are all sorts of reasons why the product may have failed, or may need further technology to be developed first. Or indeed, that simple commercial considerations suggest investment in marketing rather than this technology today."
[Photo credit: Curious Expeditions]
3 Comments on “What if the solution to global warming was known, patented and withheld?”
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your scenario made me think of a quote I recently read from Isaac Asimov or Arthur Clarke, essentially saying that if something is going to be discovered, it will be discovered in the next 100 years or so, because the pace of technological advancements has accelerated so much in the 20th and 21st centuries that any advances are usually incremental in nature, and improved upon shortly thereafter. In other words, if someone has ever sat on a patent to wait for “the perfect moment” to enforce it, a competitor probably caught up to them so quickly that they were forced to enforce their patent rights pretty quickly. Pretty simplistic, but knowing what (little) I do about advances in small molecules, this is probably what happens most of the time.
Hey Thanks Michael
Hi Duncan,
It is an interesting myth that has some truth in it, let me explain. You don’t hear about many examples because they are largely confidential.
In general you can’t sit on an early stage patent and stiffle technological progress. The patent publishes (but see below!) and eventually everyone sees the technology and off they go as it is incredibly rare that an early stage patent can stop everyone.
The best route to stiffle technological innovation is to avoid patents completely and go for know-how/trade secrets. That fails ultimately due to the Issac Asimov/Arthur Clake rule. But you may be lucky and get more than 20 years if you shoot all your engineers and management before they can spill the beans. I have not heard of many mass homicides in the corporate world recently! No chance! Technology, especailly good technology, will out patents or no patents.
I have had experience of the submerged patent tactic to get some advantage here. The first scenario used to occur before we had publication of US patent applications, with publication and patent term only occuring at grant. In the area of Aluminium/Lithium I think Philips aluminium had a key patent that was submerged in the US patent office for 19 years through the practice of filing continuations, 13 or more in this case. It was issued just as the technology was taking off in a big way in aviation. To be fair I think they would have preferred their patent sooner and the delay was mostley down to the patent office.
I can comment on the folowing example as there is no connection to me so no one will be able to work out who is involved! In another example a know of an anti-counterfeiting technology that is submerged. The pending patent applications are abandoned and re-filed on an annual basis (not by me!). Why? Well the technology may have broader application than anti-counterfeiting. Also, once published in a patent application the counterfeiters will see how it works and hey presto the business is finished! So why keep the patents on evergreen hold? Just in case the technology goes goes public via a third party and then they can get effective patent protection for the other use if the dates are right!