Monday, January 16, 2017

CRISPR, intellectual property, and Latour

Further to the IPBiz post
Politics in the academia of intellectual property?
, one notes that Professor Lemley's reference to the lack of understanding by the transistor's inventors of the potential of the transistor appeared in several law reviews. As noted in 2008:

See Mark A. Lemley & R. Anthony Reese, Reducing Digital Copyright Infringement Without Restricting Innovation, 56 STAN. L. REV. 1345, 1387 n.160 (2004) (counting "the inventors of the transistor, who anticipated its use in hearing aids" among "the inventors who did not recognize the potential of their ideas"); Mark A. Lemley, Ex Ante Versus Ex Post Justifications for Intellectual Property, 71 U. CHI. L. REV. 129, 137 n.29 (2004) (same).

A later law review article by Michael Carroll [ 70 Ohio St. L.J. 136 ] relied on this faulty perception:

Our reliance on the allegedly superior information of private innovators is a subject warranting further study. We know from experience that innovators often misjudge the likely market value of their innovations. For example, a number of pioneering inventors undervalued their innovations. See, e.g., Lemley, Ex Ante Versus Ex Post, supra note 31, at 139 (collecting sources).

[Michael Carroll has an A.B. from the University of Chicago, was a journalist in Chicago, and is a Professor of Law at
American University.]

A more recent law review, discussing CRISPR, also cites to Lemley's "Ex Ante" paper [The CRISPR Revolution: What Editing Human DNA Reveals About the Patent System's DNA (64 UCLA L. Rev. Disc. 392)].

**There is another implicit CRISPR/Lemley tie-in, through a reference to CRISPR being somewhat a Latour-esque area (which IPBiz does NOT believe). Note CRISPR: the latest biotech hype at

One Latourian hybrid now fascinating researchers and the public is the gene-editing technique CRISPR-Cas9. What began with an attempt to build a better yogurt now has journalists speculating about Brave New World (1932) scenarios. Scientists, ethicists, entrepreneurs, and officials across the globe want to reap the benefits while guarding against errors and side effects.

Of Latour, wikipedia writes:

In the laboratory, Latour and Woolgar observed that a typical experiment produces only inconclusive data that is attributed to failure of the apparatus or experimental method, and that a large part of scientific training involves learning how to make the subjective decision of what data to keep and what data to throw out. Latour and Woolgar argued that, for untrained observers, the entire process resembles not an unbiased search for truth and accuracy but a mechanism for ignoring data that contradicts scientific orthodoxy.

Latour and Woolgar produced a highly heterodox and controversial picture of the sciences. Drawing on the work of Gaston Bachelard, they advance the notion that the objects of scientific study are socially constructed within the laboratory—that they cannot be attributed with an existence outside of the instruments that measure them and the minds that interpret them. They view scientific activity as a system of beliefs, oral traditions and culturally specific practices— in short, science is reconstructed not as a procedure or as a set of principles but as a culture

The transistor/hearing aid saga would be an extreme example of Latour-esque activity, because the underlying "data" (a non-existent article in the New York Times and citations to it) are not present, and the actual Bell Labs public demonstration involved three different tangible applications of the transistor, none of which involved a hearing aid.

**BUT note a later reference to Lemley's understanding of inventors' understanding of patent value in Masur, 2 J. of Legal Analysis 687:

These conceptions of large quantities of uncertainly valued patents credit inventors with little ability to discern the worth of innovation in their own commercial fields, contrary to evidence that patent applicants have "a fairly good sense ex ante as to which of their patents will be the most valuable (Burk & Lemley 2009, 52)."

[ Burk, Dan L., & Mark A. Lemley. 2009. The Patent Crisis and How the Courts Can
Solve It. Chicago: The University of Chicago Press. One notes that, if it were true that the transistor inventors thought only of hearing aids, as Lemley stated in 2004, then the 2009 text is problematic.]

Separately, Masur gives a rather incomplete "history" of the patent grant rate saga, among other things omitting reference to the paper of Clark, who gave a figure of about 75% years before the Lemley paper.

A number of separate studies have attempted to determine the proportion of
patents approved by the PTO, with varying results. One early study found that
the PTO grants approximately 97 percent of the patents it examines (Quillen &
Webster 2001), a figure that was later revised downward to 85 percent (Quillen,
Webster, & Eichmann 2002); another study found a grant rate of approximately 75
percent (Lemley & Sampat 2008). n16 Irrespective of the precise figure, there
is ample evidence to indicate that patent examiners are performing poorly when
it comes to weeding out invalid patent applications (Merges 1999; Schaafsma


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