[Ip-health] The Path to Racial Justice Runs Through This Agency

Tahir Amin tahir at i-mak.org
Thu Feb 11 09:08:23 PST 2021


https://www.nytimes.com/2021/02/09/opinion/biden-patent-office.html

*The Path to Racial Justice Runs Through This Agency*

President Biden should choose the next director of the U.S. Patent and
Trademark Office carefully

On his first day as president, Joe Biden signed an executive order
<https://www.whitehouse.gov/briefing-room/presidential-actions/2021/01/20/executive-order-advancing-racial-equity-and-support-for-underserved-communities-through-the-federal-government/#:~:text=Affirmatively%20advancing%20equity%2C%20civil%20rights,the%20whole%20of%20our%20Government.&text=By%20advancing%20equity%20across%20the,historically%20underserved%2C%20which%20benefits%20everyone.>
proclaiming
a “whole-of-government equity agenda.” Among other things, the order
requires the head of each federal agency to identify and seek to redress
structural inequities in its operations.

When it comes to the advancement of racial equity, some agencies
immediately come to mind — the Departments of Housing and Urban
Development, Education, and Health and Human Services, to name just three.
Mr. Biden’s picks for these agencies will be closely scrutinized by anyone
who cares about racial justice.

But one appointment crucial to the achievement of that goal consistently
flies under the radar: the director of the U.S. Patent and Trademark Office
— a position that for the nation’s entire history, with the exception of
Michelle Lee, a Barack Obama appointee, has been filled by a white male
<https://www.uspto.gov/about-us/past-uspto-leaders>.

A division of the Department of Commerce, the Patent and Trademark Office
grants patents (rewards in the form of time-limited monopolies issued by
governments) and trademarks, as the Constitution directs, to “promote the
Progress of Science and useful Arts <https://www.uspto.gov/about-us>.”
Though the connection is less obvious than for agencies that deal with
civil rights, poverty, health care or housing, there is a direct line
between what the agency does and the systemic disenfranchisement of Black
people.

Structural racism has a long history in our patent system. Like redlining
<https://www.federalreserve.gov/boarddocs/supmanual/cch/fair_lend_fhact.pdf>,
the patent system played a huge role in denying Black people opportunities
for upward mobility — opportunities that were readily available to white
people. Enslaved people weren’t allowed to patent their inventions
<https://www.americanbar.org/groups/intellectual_property_law/publications/landslide/2018-19/march-april/colorblind-patent-system-black-inventors/#83>.
In the South, their white enslavers often got the patents instead. (The
cotton gin and the mechanical reaper are thought to have been at least
partly invented by people who were enslaved.) The ingenuity of Black people
was appropriated and monetized. Their resulting low rates of patenting were
weaponized <https://www.nature.com/articles/d41586-020-03056-z> by some to
argue that Black people lacked ingenuity.

Even today, Black people account for only a tiny fraction of patent
holders. Research
<https://www.nber.org/system/files/working_papers/w16331/w16331.pdf> by
Lisa Cook, an economist at Michigan State University who served on Mr.
Biden’s transition team, indicates that from 1975 to 2008, fewer than 1
percent of people granted patents were Black. Whether that’s due to
structural issues in the Patent and Trademark Office or to systemic
barriers Black people face that make them less likely to apply for patents
is unclear; the agency’s colorblind
<https://www.americanbar.org/groups/intellectual_property_law/publications/landslide/2018-19/march-april/colorblind-patent-system-black-inventors/#72>
approach
means it doesn’t collect demographic data about applicants. Since we can’t
fix what we don’t measure, the next director must make changing this a
priority. And, given the agency’s historical lack of diverse leadership,
the Biden administration should strongly consider a person of color for the
role.

While representation matters, any equity agenda for the Patent and
Trademark Office has to go far beyond who is in charge, or even who gets a
patent. In addition to fighting a pandemic that has disproportionately
harmed Black and brown people
<https://www.cdc.gov/coronavirus/2019-ncov/covid-data/investigations-discovery/hospitalization-death-by-race-ethnicity.html>,
America is in a drug-pricing crisis fueled by unchecked patenting.

An analysis <https://www.i-mak.org/2019-bestselling/> conducted by my
organization, the Initiative for Medicines, Access, & Knowledge, found that
the 10 best-selling medicines in the United States in 2019 had been granted
an average of 131 patents each, with up to 38 years of monopoly protection
— far longer than the 20 years intended by law. With generic competition
blocked during these added years of monopoly protection, drugmakers are
free to increase prices at whim. The average price hike over five years was
71 percent, though the Patent and Trademark Office has yet to acknowledge
the link between patent monopolies and drug prices.

The new director could help fix this troubling pattern. While patent
reviews are the purview of patent examiners, the director sets some of the
rules of engagement. The director could, for example, make it more
difficult to extend the life of a patent or make it easier for generic
manufacturers or others acting in the public interest to challenge unjust
patents.

Since the start of the pandemic, one-tenth of Black and Latino families and
one-sixth of Indigenous families
<https://cdn1.sph.harvard.edu/wp-content/uploads/sites/94/2020/09/NPR-Harvard-RWJF-Race-Ethnicity-Poll_091620.pdf>
in
the United States reported being unable to afford prescription medicines to
manage a major health issue. Countries with predominantly Black and brown
populations are vulnerable because wealthy countries have eaten up existing
Covid-19 vaccine stocks
<https://www.nytimes.com/2020/12/15/us/coronavirus-vaccine-doses-reserved.html>
instead
of sharing knowledge and allowing manufacturers in other countries to boost
the global vaccine supply. This is the predictable outcome of a system that
refuses to budge on intellectual property rights even in the midst of the
worst pandemic in a century.

The Patent and Trademark Office is largely insulated from these human
consequences of the system it oversees. Few avenues exist for people to
engage with the office, which, despite being a public agency, interacts
almost exclusively with people and entities seeking patents for commercial
reasons — businesses and universities, mostly — and very little with those
who stand to suffer immensely from those monopolies. For example, a majority
<https://www.uspto.gov/about-us/organizational-offices/public-advisory-committees/patent-public-advisory-committee/patent>
of
the agency’s “public” advisory committee members
<https://www.uspto.gov/about-us/organizational-offices/public-advisory-committees/patent-public-advisory-committee/patent>
are
representatives of corporations, including several from the pharmaceutical
sector. Is it any wonder that the interests of Black people are overlooked,
when you consider how vastly underrepresented
<https://www.nytimes.com/2019/12/09/us/black-in-corporate-america-report.html>
they
are in corporate America?

For too long, the Patent and Trademark Office has operated as though equity
isn’t part of its mandate. But the right leader will understand that the
patent system is one of the most powerful instruments for justice in our
federal arsenal. To stay true to its promise of equity across government,
the Biden administration must choose wisely.

Priti Krishtel (@pritikrishtel <https://twitter.com/pritikrishtel?lang=en>)
is a founder and an executive director of the Initiative for Medicines,
Access & Knowledge, a nonprofit organization working to address structural
inequities in how medicines are developed and distributed.

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-- 
Co-Founder and Co-Executive Director
Initiative for Medicines, Access & Knowledge (I-MAK)
*Website:* www.i-mak.org
*Big Think:* How pharmaceutical companies game the patent system
<https://www.youtube.com/watch?v=5d6RT4InlKQ>
*Email:* tahir at i-mak.org
*Skype: *tahirmamin
Twitter: @IMAKglobal @realtahiramin
*Tel:* +1 917 455 6601 <(917)%20455-6601>/+44 771 853 9472
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