Patenting the Sun

  In his 1955 interview with Edward R. Murrow on See It Now, Dr. Jonas Salk stated that he did not and would not obtain a patent on his polio vaccine, infamously saying, “Could you patent the Sun?”  Although Dr. Salk was a great researcher and humanitarian, this statement was at best inaccurate and at worst a lie.  Yet, this grandiose gesture by Salk, made worldwide on American television at the pinnacle of his achievement, resonates with those hostile to a patent system.

  From his earliest days, Salk dedicated himself to knowledge, and he excelled in everything he did.  He chose to be a researcher rather than a physician, indicating that research “may have momentous consequences.”  When approached by the National Foundation for Infantile Paralysis, he eagerly joined the fight against polio. For two centuries, the polio virus raged with little to fight it. Even quarantine was not a guarantee, and the scourge reached epidemic proportions in 1952-53.  Polio scared Americans almost as much as the threat of nuclear war in this period.  After years of intense effort, Salk and his team found a vaccine, based upon killed virus, that was rolled out in a massive trial in 1954, and introduced for treatment on April 12, 1955, a day of national rejoicing.  It was on that night that Salk made his comment to Murrow.

  In later life, Salk continued his efforts and helped virtually eradicate polio.  Although the later Sabin vaccine, based on attenuated, live virus, has also become well known, Salk’s vaccine is still recognized as viable and perhaps superior.  He soon afterward founded the Salk Institute, wrote books on biophilosophy, and for the remainder of his life received honors for halting the devastation of polio.

  With his lifetime of self-sacrifice, it is clear that Salk did not make his endeavor for money.  He worked 16-hour days, 7-days a week for years on end to develop the vaccine, and his dream was to continue research at institutions, which he did for the remainder of his life.  Still, he was being funded, and scientific achievements, especially ones of this magnitude, are patented, at least for defensive purposes.  For example, the discoverers of insulin, like Salk, did not want patent protection, but the University of Toronto went to great lengths to have insulin patented, with the goal to control manufacturing standards.

  Salk biographies indicate that attorneys for the National Foundation for Infantile Paralysis and the University of Pittsburgh indeed investigated patenting Salk’s monumental treatment.  They found, however, that the patent laws then, as now, have rather strict prohibitions on patenting something already commercially known, and they determined that they could not obtain a patent on the Salk vaccine because of pre-existing research (or prior art).  It is assumed that the bad news of this patentability study was communicated to Salk prior to his national interview, especially since any release of an invention to the public affects patent rights.

  With the utmost respect for his achievements, why would Salk take the high road and misrepresent his patent situation for the polio vaccine? Snippets of the See It Now interview show Salk replying to Murrow’s question, “Who owns the patent on this vaccine?,” that the public owns the patent rights to his vaccine, and then grinning “There is no patent. Could you patent the Sun?”  Since Salk knew that his patent rights were compromised, thwarting a patent filing, the public did indeed “own” the vaccine, i.e., there was no patent exclusivity to exclude anyone from manufacturing their own, identical vaccine.  Still, his throwaway line about the patent system remains misleading.

  Clearly, Salk was a great humanitarian, and patents apparently did not then fit into his philosophy.  Indeed, his moral explanation was cleaner than a much more complicated confession that he lost his patent rights due to others’ research predating his own (or perhaps Salk’s own public disclosures did his patent in).  Possibly, Salk did not believe in patents, despite being funded by institutions that did.  Indeed, a search of the U.S. Patent Office records does not find any Salk patents prior to 1993.  But toward the end of his life, during his AIDS research, seven patents issued with his name.  So, who knows what Salk actually thought of the patent system?

  Whatever Salk’s motivations, his offhand comment has been unjustly used against patents.  There are few individuals who can make the extraordinary monetary investment in R&D without the protection of the patent system.  Companies then and now would not support such endeavors without the possibility of the limited exclusivity afforded by patents, particularly in the life sciences arena. 

  We are thus afforded two visions of the patent system: Edisonian and Salkian.  Both men were immensely talented and committed innovators.  Edison availed himself of the patent system and obtained more patents than anyone across a wide swath of innovation.  Salk was a consummate researcher and later philosopher, supported by many institutions, perhaps uninterested in patenting or any such commercial concerns. Obtaining a reward for an endeavor vs. the mere thrill of the endeavor. Commercial vs. Academic.

  A current case before the Supreme Court, Myriad, concerns the issue of patenting natural things.  Instead of the Sun, Myriad Genetics obtained patents on aspects of human genes.  Issues here concern whether gene patents are appropriate under the patent laws.  Again, large funding is required for biotech research, and Justice Scalia and other Justices dismissed the argument that innovators should just invent for humanitarian reasons without any recompense or patent.

  For whatever reason, Salk and his sponsors were unable to patent the polio vaccine, which was world-changing.  Patentees today, in this economy, cannot be altruistic, and people should not look to Salk for inspiration unless quite wealthy and immune to real life.  Salk wove a nice tale explaining his loss of patent rights as a moral duty.  The patent system provides an incentive to individuals and companies to create, adding “the fuel of interest to the fires of genius,” Abraham Lincoln said.  Some individuals are not interested in that incentive, and want to just do research, like Salk. His support system (and his great discovery), however, insulated him somewhat from the economic reality of research costs. 

  Edison is famous for saying that “genius is one percent inspiration, and ninety nine percent perspiration.”   Both Edison and Salk were innovators extraordinaire, but Edison had no support system and had to obtain funding for everything.  The patent bargain was crucial to Edison’s entrepreneurship.  He was acutely aware of the need to protect his investments through patenting, and with his invention of the light bulb, phonograph, movie projector and many other breakthroughs, we are all the better.  The Supreme Court needs to carefully consider rewarding not only the inspiration but also consider the perspiration to make most modern innovations commercially viable, such as the ones in Myriad.

  Can you patent the sun? Clearly not. Can you patent new photovoltaics and engineered bacteria to capture the sun’s energy? Yes.

Raymond Van Dyke

Ray Van Dyke is a patent practitioner and educator in Washington, DC.

This article, entitled “Don’t Use ‘Could You Patent The Sun?’ Against Myriad,” appeared on the IP360 website on June 3, 2013.

http://www.law360.com/articles/446797/don-t-use-could-you-patent-the-sun-against-myriad