From Fundamental Physics to the Private Sector

Parent Collection
Graduate Research Ethics: Cases and Commentaries - Volume 3, 1999
Contributors
Brian Schrag
Editor(s)
Brian Schrag
Authoring Institution
Association for Practical and Professional Ethics (APPE)
Publisher
Association for Practical and Professional Ethics
Year
1999
Rights
The Association for Practical and Professional Ethics (APPE) grants permission to use these case and commentary material with the citation indicated above.
Discipline(s)
Computer, Math, and Physical Sciences
Physics
Research Ethics
Topics
Collaboration
Intellectual Property and Patents
Case Study / Scenario
Description

This is a case in which universities who traditionally have collaborated in research find themselves unable, or unwilling, to collaborate as they move into the commercial market. This failure in collaboration comes at the expense of providing a more cost effective (and probably more environmentally friendly) service to the medical world and, ultimately, the public.

Body

Part 1

Part 2

Part 1

Most research projects in nuclear physics necessitate the use of particle accelerators. Because the number of accelerators is quite limited and because a single project may require tens to hundreds of physicists, scientists from competing institutions frequently collaborate.

Six particular nuclear physics research groups from Huge University, Technological University, Ivy University, Private University, Popular University, and Selective University are no exception; in fact, these groups, especially Huge, Ivy and Selective, share a long history of collaboration.

Furthermore, nuclear physics experiments are rarely conceived with a practical application in mind; therefore, physicists are driven solely by the curiosity of how matter is put together. Consequently, the nuclear physics community does not have the machinery in place to convert the ideas developed in academia for the private sector.

In July 1994, an article in Popular Cross Disciplinary Research outlined the possibility of using laser techniques often employed in accelerator physics to revolutionize conventional magnetic resonance imaging (MRI). According to the article, this technique would allow doctors to use MRI to observe brain function in a noninvasive manner. Should this technology be applied to human subjects, it would require the patient to inhale a special, laser-treated gas, which could then be monitored via MRI.

Several universities believed that this new technology could be quite lucrative and applied for funding to research this new technique. The National Institutes of Health (NIH) immediately saw promise in this new MRI technique and funded nuclear physics groups from the six universities that traditionally collaborated. Researching the new technique, however, did not require the use of a national laboratory, nor did it require tens to hundreds of scientists. Consequently, each of the six universities conducted independent research with the hope of producing new, marketable MRI techniques and hardware.

Huge University and Ivy University emerged as the leaders in the new field, matching each other patent for patent. Since the group at Ivy spearheaded the collaboration that wrote the original article in Popular Cross Disciplinary Research, they claimed the first patent, which secured the rights to the idea of using the technique for medical imaging.

Unfortunately, the new technique was still far from practical, given the state of the art. It required the use of two large, expensive, difficult-to-maintain lasers that could be operated only by experts. Huge had discovered that several classes of atoms, including the atoms that composed the gas necessary for the MRI technique, could be prepared using a rather counterintuitive choice of lasers. This new class of lasers is far cheaper and much easier to operate and maintain, making the ideas discussed in the article practical. Because this choice of lasers required a new understanding of the physics involved, the group at Huge was granted a patent for using the lasers to treat atoms in this particular way.

Groups at Ivy U. and Huge U. each began building an apparatus that would produce the specially treated gas to be used for the new MRI technique. Ivy finished first and patented its new machine. Huge finished a few months later, but its machine had the added capability of being able to produce and deliver the gas with the same machine. Huge also received a patent.

Both groups continued to work diligently on their research. Ivy employed the new class of lasers to prepare their gas in the method patented by Huge. Huge used the laser-treated gas to perform MRI experiments on rats. Ivy's results suffered severely because it did not employ Huge's patented delivery system, vaulting Huge into the forefront of this new field. It is instructional to note that to date, neither university has infringed upon the other's patent because patents only protect against commercial uses and not against research uses.

At present, NIH is prepared to fund a start-up company formed by members of the Huge group. However, the Huge group cannot form a company that markets the new MRI technique. If it were to do so, it would be violating Ivy University's patent. The Huge group, however, could create a company that would sell its new machine to other institutions.

Ivy is in a similar predicament. It cannot produce an MRI machine to be sold to hospitals, unless it either uses a sub-par delivery system and sub-par lasers at a much higher cost or violates Huge U's patents.

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Discussion Questions

1. Given that the two institutions are unwilling to license patents to each other, does the Huge group have a moral obligation to society to accept the start-up money for a company and mass produce this MRI technique for hospitals? Does it matter that the patents are held by universities (i.e., entities that are reluctant to sue to protect their patents)?

2. What obligation(s) does either institution have to NIH, given that NIH intended its funding to be used to help humans?

3. Which takes precedent - the lives of humans who could benefit from this technique or the issues of intellectual property? If one says that intellectual property is more important, then how does one justify keeping this treatment from those who could benefit from it? Conversely, if lives of humans are more important, then how does one persuade scientists to continue to pursue similar avenues of research, given that their only compensation is the intellectual property that they gain?

4. Is it ethical for the Huge group to form a company that manufactures machines that prepare and deliver the gas needed to perform the new MRI technique and then sell these systems to another company or institution, knowing that the buyer probably will infringe upon Ivy University's patent?

5. If Ivy should decide to commercially produce new MRI systems that abide by Huge University's patents, is it ethical to provide a machine with sub-par performance, with a substantially higher cost, and which only experts in physics can operate? Would it matter if the cost were so high that only the rich could benefit from the new technique?

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Part 2

Not to be outdone, Ivy attempted to claim the rights to another important procedure. The gas used for inhalation lost its unique properties too quickly to be used in humans unless its container were properly coated for storage. The coating procedure was developed during the days of nuclear accelerator experiments and by this time had become a widely used technique among several divisions of physics and chemistry experiments.

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Discussion Questions

6. The process of patenting an idea can be quite costly. Some ideas are never patented because they are not cost effective. Does the Ivy Group have the moral right to patent an idea well after it became public knowledge among physicists and chemists who are not experts in this particular field?

Notes

Brian Schrag, ed., Research Ethics: Cases and Commentaries, Volume 3, Bloomington, Indiana: Association for Practical and Professional Ethics, 1999.

Citation
. . From Fundamental Physics to the Private Sector. Online Ethics Center. DOI:. https://onlineethics.org/cases/graduate-research-ethics-cases-and-commentaries-volume-3-1999/fundamental-physics-private.
Author's Commentary on "From Fundamental Physics to the Private Sector"

Question 1

Question 2

Question 3

Question 4

Question 5

Question 6

This case shows that ethical issues arise even when none of the parties involved commit obvious ethical violations.

It might be tempting to confine the study of ethics to situations in which one or more of the parties involved has committed some obvious violation of ethical principles. Once this stance is taken, many make secondary the study of ethics on the grounds that "the people I deal with on an everyday basis are reasonably ethical." This case reminds us that the study of ethics is important nevertheless, and should always be at the forefront of our thought process.

In this case, Huge and Ivy are confronted with ethical dilemmas even though both parties have operated in a manner that, at least at first glance, seems ethical. After all, both parties want to see the new MRI technique succeed, and neither party is hindering the progress of the other. This case also reinforces the fact that ethics plays an important role in fundamental science, despite the fact that its experiments are rarely conceived with a practical application in mind. Furthermore, it may remind us that the study of ethics doesn't always ask us to choose between a '"right" and "wrong" answer. This fact can be troubling to some scientists, and it is worth discussion.

It is also instructive to note that this case never focuses on one individual. Often our case studies revolve around interactions between individuals, which can lull us into believing that these are the only ethical situations that we need to look out for. One might argue that behaving ethically does not just involve doing what is right for one's own situation, but also involves understanding how ethical decisions are dealt with between groups.

We must be willing to approach ethics with forethought. It is not sufficient to just wait for a situation to present itself and then "behave ethically." Ethical behavior must involve understanding (or at the bare minimum, attempting to understand) what ethical decisions might lie ahead. In the end, the reader may note that the downfall of the parties involved in this case is not that they took an unethical step along the way, but rather that they failed to consider the ethics of their research before they began.

Question 1

The first topic this question is likely to raise is how a moral obligation to society differs from what is legally right (i.e., patent law). Too often, the two are deemed to be identical. Although one could argue that both parties have a moral obligation to society to mass produce the new technique, one cannot argue that the most efficient manner for either party to do so would necessarily be legal. Furthermore, this question is a good way to get students to think about the ultimate purpose of science. Is the ultimate goal of science to search for truth, to better society or to do something else? What do you do when the search for truth conflicts with bettering society?

Question 2

One interesting way to approach this question might be to ask. "Why do we call the funding we get for experiments 'grants'?" The word "grant" carries a connotation of "free money"; however, most would argue that grant recipients have some sort of responsibility to the entity that funded the research. At the vary least, scientists have the obligation to show that the money was spent wisely. If they fail to do so, they will not receive any more grants and will no longer be able to practice science.

Question 3

This is an especially interesting topic for scientists whose livelihoods depend on ideas that do not or have yet to bear practical applications. Many scientists' careers are based on developing abstract, entirely theoretical notions. Occasionally, these abstract theories will yield an application (either directly or indirectly) that is highly profitable. Some examples include the CD player, the internet and quantum computing. This question asks the reader how to maximize public gain from scientific applications without squashing a valuable reservoir of talent that could produce new, applicable science.

Question 4

This question requires readers to look beyond the ethical questions presented to them and instead examine how their choices place others in a situation where there is an ethical decision to be made. In other words, is it good enough to behave in a way that passes the ethical decision on to another party?

Question 5

This question asks readers to weigh the pursuit of truth, utilitarianism and patent law all at once. This discussion can be especially rich because many, if not most, of the ethical decisions that we must make require deciding between choices, all of which have good intentions. It is important to remember that the study of ethics is not only important when trying to decide between right and wrong, but also when deciding between two "right" options.

Question 6

At this point, the reader may ask about the four universities that did not emerge as players in this case study. After all, at least six universities contributed to the pool of basic science research that Huge and Ivy applied to new MRI techniques. What do Technological University, Private University, Popular University and Selective University deserve?

Michael Pritchard's Commentary on "From Fundamental Physics to the Private Sector"

This is a case in which universities who traditionally have collaborated in research find themselves unable, or unwilling, to collaborate as they move into the commercial market. This failure in collaboration comes at the expense of providing a more cost effective (and probably more environmentally friendly) service to the medical world and, ultimately, the public. These universities were able to move into this position because of NIH support in the initial phases of their research. That is, public monies have been used to create a stalemate between competing institutions. As described here, the universities were motivated to seek NIH support by the promise of lucrative returns.

Presumably, NIH support was intended to facilitate developing a new MRI technique that would enhance the ability of doctors to observe patients' brain function. Perhaps NIH saw the promise of financial gain as a necessary means to encourage further MRI research. But for NIH, the promise of financial gain for the universities was simply a carrot to encourage needed research, not a final end. In a capitalist venture for individual institutions, the universities had much to gain. However, by failing to insist that this research is not simply a capitalist venture for individual institutions, NIH apparently failed to take advantage of the opportunity to further the collaborative efforts of institutions that already had a good track record of collaborative work. This goal might have been accomplished by restricting the proprietary claims of NIH-supported institutions to the results of their research.

In the absence of NIH restrictions Huge and Ivy have emerged as intense, uncooperative giants, apparently with large appetites for financial gain and considerably smaller appetites for sharing their research gains in ways that enhance their commercial ventures.

Bearing this background in mind, I now turn to the specific questions raised by the case.

  1. Huge should not directly violate Ivy's patent rights. The fact that universities have been reluctant to sue to protect patents does not mean that they always will be, or that they will be in this case. Quite apart from the respective merits of the ethical arguments either side might produce, blatant disregard of patent rights is an open invitation for expensive litigation, and that is a battle that Huge will not win. Litigation costs, fines and the like are themselves ethically relevant considerations for Huge. The costs it would have bear in this case would be at the expense of other commitments the university has (to its faculty, students and the public).
  2. I should think that both Huge and Ivy have moral reasons for working very hard to try to reach working agreements to make the most cost-effective MRI process available for medical practice. These reasons derive both from their support from NIH and their public missions as universities. I would say that the universities' obligations are to both NIH and the public.
  3. I don't think that this case really raises the question of which is more important, human lives or intellectual property, at least not in the abstract. Instead, the case raises questions of responsibility. The seriousness of the responsibilities here pivots around the great value we attach to human life. However, there are limits to what sorts of demands we make on people (and institutions) to develop and market products designed to support human life. For example, we know that improvements in automobile safety can save human lives. However, that does not mean that automotive companies have an obligation to make cars as safe as is technically possible. Cars must be both affordable to the public and at least somewhat profitable to the companies. Minimum legal standards of safety may not always suffice, but there are also acceptable limits of safety that fall far short of saving as many lives as is technically possible. Although I believe that both Huge and Ivy have obligations to try to work out an agreement for public benefit, that does not mean that each has an unconstrained obligation to do so at any cost. That is not to argue that human life has less value; it simply means that there are limits to what can reasonably be expected. (I should add, however, that it appears that neither Huge nor Ivy has reached that limit.)
  4. This question is related to Question 1, but it is somewhat more complicated. As long as there is a reasonable chance that Ivy will eventually work out an agreement with Huge, Huge should not knowingly sabotage the deal by selling its systems to those it is known will violate Ivy's patent rights. That would kill any deal with Ivy, and it would invite the same sorts of litigation discussed in 1, only this time between Ivy and all of its other competitors. Short-term gains will probably give way to long-term losses. Huge needs to keep its eyes steadily on the morally desired end -- a cost-effective MRI process that will benefit doctors and their patients. Complicity (however legally acceptable) with others who are prepared to violate another's patent rights is not the moral high road; in fact, it's unlikely to be a successful road at all.
  5. If Ivy makes a serious effort to reach a reasonable agreement with Huge, but Huge remains uncooperative, it seems ethically acceptable for Ivy to provide the machine itself, provided that it will perform reasonably well despite its higher cost. If by "sub-par" means "unacceptably poor," then everyone should wait until a better quality MRI process is available.
  6. This question asks whether a company has the moral right to patent an idea for a specific process well after it has become public knowledge "among physicists and chemists who are not experts in this particular" field. If it is legally permissible, it is difficult to argue that it is not morally permissible in a case like this one. I don't know if it would be legally permissible. However, even if it is, not everything one has a moral right to do is morally right to do. Depending on the impact of asserting such a moral right on the availability and affordability of the MRI process, this distinction could be an important one to bear in mind. 

Author: Michael Pritchard, Western Michigan University.