Jamie Boyle, one of my Board members and longtime mentors in the law, does his usual brilliant job in deconstructing the relationship of patents and drug discovery .

I agree fully with Jamie’s writing here. He does a very elegant job in noting that the patent system is itself not the cause of the lack of research into diseases of the global poor, but that the drug companies that depend on patents are also blocking the creation of new incentive systems that might address market failures in global disease research.

His key point for me is that patents are like religion. Boy howdy, is that ever my experience.

I’ve had the temerity to suggest on occasion that patents aren’t the big problem in global disease research – that our research at science commons indicates the problems are much more to do with fundamental knowledge gaps, process failures, non-patent-related transaction costs. That isn’t popular in many places.

I’ve also had the temerity to suggest that prize models need to be accompanied by systematic changes in the fundamentals of drug discovery: knowledge sharing as a first principle, investment in biobanks to move materials around the world smoothly, investments in web infrastructure to make a scientist in Brazil as powerful as a scientist in Pfizer’s Groton offices. Also not popular in some places (actually not popular either in the prize advocate community or the pharma community, oddly).

I don’t believe prize models are going to scale as long as the fundamental uncertainty of drug discovery persists – we have to change the game at the same time we change the rewards granted to the winners. Remember how little we know about the body: we don’t know how Tylenol works, much less how to predict what a new drug is going to do.

In all the costs of drug discovery there’s one big one, clinical trials, and it comes from knowledge gaps. We don’t know if Magic Drug X is going to kill people or not until we give it to humans and watch to see how many die. That knowledge gap costs money – lots and lots and lots of money. We have to eliminate that knowledge gap and lower the cost so that more can play, and more can fund – and in turn, so that we can have process competition at the funding level like prize models without an $80B pot of gold needing to be located. Otherwise, only rich people will play, and they’ll play by market rules. That’s what markets do, as Jamie points out. The question is how to manage the places where the markets fail, and we can do that only if we lower the chance of failure by bridging the knowledge gaps, and doing so in a public and open access manner.

We’ll know we’ve been successful not when a prize model replaces the pharma dependence on patents, but when it sits alongside and outcompetes the patent system. I am personally looking forward to that day. To get there we’ve got a lot of roads to walk, and we need to get away from patents as religion – whether we’re pro or con on the topic – and we need to focus on filling the knowledge gaps that drive up costs and steal precious research cycles.