Patent, Then Publish

"The patent system added the fuel of interest to the fire of genius."

– Abraham Lincoln, as quoted on the exterior of the Commerce Dept. building in Washington D.C.

On July 5, 1979, the patent office in Washington D.C. received the first biotech patent application from scientists working at a young California company called Genentech.

That application was quickly followed by dozens of others. The company’s pursuit of patent protection for its scientific inventions ensured the company’s future and made possible the development of the biotech industry itself.

In fact, over Genentech’s 40-year history, nearly 20,000 patents have been issued worldwide covering the inventions made by its researchers, as well as in its engineering and manufacturing operations. They protect some of the most important innovations in biotech and gene science, making the company one of the most prolific patent creators in the life sciences and a major contributor to the collective knowledge that is advancing medical science throughout the entire industry.

“In the pharmaceutical industry, innovation is life or death,” says Mike Varney*, Genentech’s EVP of Research and Early Development. “If you are not innovative you will not be in this business for very long,” says Varney.

Co-founder Herb Boyer knew that to attract great scientists from the academic world, the company had to allow them to publish the results of their work and gain the credit for their inventions and the recognition of their scientific peers. Publishing also allowed scientists to share knowledge with the larger scientific community, which could help foster new ideas in labs around the world.

Co-founder Bob Swanson agreed with the importance of scientific recognition and transparency to the spread of knowledge – but he also knew that to be a viable business, the company needed to protect the work of its researchers from simply being copied and exploited by competitors. Boyer also recalled his experience as a researcher at Stanford University when he and colleague Stan Cohen published their work on recombinant DNA technology before the university filed for a patent – which meant it wasn’t eligible for protection outside the U.S.

“We ended up not getting the full value of the technology,” he recalled.

So the two agreed to adopt a novel strategy of “patent, then publish.” The idea was simple in concept: When researchers had results they felt were worthy of submitting for publication, they would first have to present them to the company’s attorneys to have a patent application filed.

“We developed this idea that we are going to publish our work, because we think we get more benefit from doing that than we lose by telling our competitors what we're doing,” Bob Swanson recalled. While the process of filing a patent application sometimes resulted in a slight delay in publication, it was normally a matter of days or weeks, not months. “By and large,” said Swanson, “the patent people danced to the scientific beat.”

By and large the patent people danced to the scientific beat.

At first, they weren't even sure they could get a patent on the work they were doing; it was simply too novel. But in early 1980 the Supreme Court issued a decision that made biotech patents possible – and opened the door for Genentech. Without that decision, “the industry would never have gotten started,” said Genentech’s general counsel, Sean Johnston.

The patent and publish strategy was powerful for many reasons. For the industry, Genentech was instrumental in the education of patent examiners in the early days of biotech, when the science was still largely unknown. For the business itself, patent licensing provided a large share of the company’s early revenues before new discoveries came to market. By 1985, the year Genentech’s first product was approved by the FDA, the company had 117 issued patents with almost 2,000 pending worldwide.

And the push to publish made Genentech a top choice for scientific recruiting, then and now.

“It turned out to be very important because as soon as our young scientists at Genentech started publishing, they got a lot of recognition, and that just brought in so many more talented people.” Boyer said.

Today, Genentech’s decision to protect and share its scientific advances has created a patent portfolio that is not just ahead of its competitors, but also that of most elite academic research institutions.

But the greatest achievement of Genentech’s patent work remains what it always has been: the advancement of science.

“Not only do we encourage people to publish, we require it,” says Varney. “Visibility as a scientist, both internally and externally, is an incredibly important part of the growth of a scientist’s career at Genentech.”

*While Mike Varney was an employee at the time this article was published, he has since retired from Genentech.