During the golden age of the unregulated food industry, Chicago slaughterhouses boasted that they processed every part of the animal except for the squeal. How times have changed: agricultural businesses in the US and Australia no longer rely on cheap labour, economies of scale, and the absence of regulation. Instead they are turning to patent protection, in ways that might amuse, bewilder or horrify some observers.
One example is the US patent for a new cut of steak. Oklahoma State University researchers are seeking protection for the extraction of the “Vegas Strip steak”, inconveniently situated inside the cow and thus hitherto processed by abattoirs as hamburger meat.
Invention of a new processing technique potentially adds value for consumers and the abattoirs, in addition to a revenue stream for the university if the patent is licensed to meat processors. Patenting of university research is big business, with licensing helping to build billion-dollar endowments at Stanford and other leading institutions. It is consistent with one rationale for patent law: an economic incentive for innovation.
That law is blind to whether the innovation involves cows, silicon chips, advanced composites, pharmaceuticals, or the hula hoop. Accordingly,there is no reason in principle to exclude novel methods of processing animals and crops. The Vegas Strip steak patent is interesting because it illustrates pressures facing universities to commercially exploit research. It also potentially involves dilemmas about patent trolling, patent holders “extorting” undeserved payments from consumers and competitors or stifling research through threats of litigation over alleged patent infringements. Patent protection doesn’t last forever, but there are legitimate concerns about abuses by trolls in the short term.
The patent also illustrates questions about agribusiness practices and patent law. Patent protection has traditionally centred on innovations in hardware, with law and history students for example encountering patents for innovative ploughs, the Sunshine-brand harvester and the refrigeration equipment that allowed Australia to ship millions of tonnes of lamb and other meat to Europe. Recently, research entities such as CSIRO have had major success in using patents and plant breeders rights to commercialise the results of research into drought and disease resistant grains, tastier fruits and fish, better cotton, and low-maintenance sheep.
There has, however, been eloquent criticism of the patent mind-set or of a growing “patentisation” of areas of commercial activity where patents may not be needed. A patent lawyer is not the solution to every problem; most patents are not commercially viable and many introduce confusion rather protecting true innovation.
Alongside increasing use of the “reach for a patent lawyer” strategy on farms, factories and universities, there are arguments that as public policy we should be requiring true innovation and shouldn’t be encouraging egregious monopolies. One example is Matthew Rimmer’s incisive 2011 analysis “Owning Omega-3: Monsanto and the Invention of Meat”.
There is also a healthy scepticism about patents. Some are truly valuable. Others - and as former farm boy I might be forgiven for questioning the Vegas patent - are probably only valuable as the basis of a media release and a hug from the Vice-Chancellor. In some industry sectors, continuous improvement, impeccable service and strategic repackaging may be more important than patent law. Strong protection for pharma patents (where there’s typically a long lead-time and research investment), weak protection for cuts of steak and hula hoops?
Patent law is a matter of assertion: the patent holder makes and defends claims about the originality of the invention. The cost of challenging those claims potentially deters many people who encounter “junk patents”. If universities are going to patent ostensibly new ways of carving a cow, they might also want to contribute - through legal clinics - to public interest litigation that challenges patents that should never have been granted, chills (ie deters) research and cannot be successfully defended from a legally informed critique. Craig Emerson might find a little bit of the Gonski money to encourage that critique and thereby the clever country to which all parties pay lip service.
Moves to patent everything except the squeal - no doubt an over-enthusiastic US patent attorney is working on even that - are inevitable. As Australian researchers, civil society advocates and investors await the US Supreme Court decision in the ‘Myriad’ gene patents case we might think about whether there’s over-stretch in patent protection. Can and should businesses protect their innovation without relying on patents, and without rewarding lawyers?
Should we also be asking some uncomfortable questions about policy-making, and for example criticise the ongoing ‘penny wise, pound foolish’ cuts to the Australian Law Reform Commission (ALRC), author of landmark advice on patent law. If we want a smart economy we need both properly funded universities and a patents dialogue based on informed independent legal advice.