March 29, 2025 • 40 mins
We welcome Prof. Andrew Torrance, distinguished Professor of Law at the University of Kansas and visiting scholar at MIT, to discuss the complex legal landscape surrounding user innovation and patents. The conversation delves into the freedom and challenges of product innovation, the balance between open and closed inventions, and the ethical implications of experimental treatments. They also explore the historical and ongoing impact of FDA regulations and the role of patents in fostering or hindering innovation. Sponsored by Wazoku, this episode is essential listening for innovators, legal experts, and anyone interested in the intersection of technology, law, and ethics.
00:00 Introduction and Wazoku Sponsor Message
00:27 Upcoming Reinvention Summit
01:01 Previous Episodes Recap
01:28 Introducing Andrew W. Torrance
02:01 Legal Aspects of Free User Innovation
03:29 Experimenting and Sharing Innovations
09:02 Selling Innovations and Legal Implications
11:07 Influencers and Legal Responsibilities
17:21 Trust in the FDA and Alternative Medicine
24:38 Patient Rights and Experimental Drugs
30:44 Patenting Innovations
38:54 Closing Remarks and Contact Information
39:44 Final Wazoku Sponsor Message
Andrew on SSRN: https://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=625609
Ted Talk: https://youtu.be/g8GTg_632qY?si=lieqXrcdwUWD1l_l
Andrew's most recent talk on “Innovation Hypercycles: The Rise and Fall of Technology Hotspots”, https://facultyaffairs.ku.edu/distinguished-professors
Mark as Played
Transcript
Episode Transcript
Available transcripts are automatically generated. Complete accuracy is not guaranteed.
(00:00):
Welcome to another episode ofthis series on the work of open
innovation and free user innovation.
It's brought to you by our friendsat Wazoku, Wazoku, are pioneers of
total innovation, transforming how ourorganizations solve challenges, drive
growth, and deliver measurable results.
As the world's only networkedinnovation marketplace Wazoku connects
(00:22):
people, ideas, technology to createscalable, impactful innovation.
You can find our friends at Wazoku, at wwdot Wazoku, dot com, or you can join us
at the Reinvention Summit this April 29thand 30th here in Dublin, Ireland, where I
will host so many of the brilliant gueststhat we've had on the innovation show.
(00:43):
Since its inception, we're gonnahave Seth Godin, Alex Osterwalder
here in Dublin himself, RitaMcGrath, my friend Charles Conn, the
Patagonia Chairman, Elvin Turner.
Kahan Krippendorf, and so many, many more.
Please do join us.
You can find out details atthereinventionsummit.com.
So far, we've covered thework of Eric Von Hippel.
(01:04):
We've covered patient innovationwith Pedro Oliviera, and one of the
questions that comes up with allthis is, well, if you make a product,
are you covered for that product?
Is it legal that you share that product?
They were the questions that came to meand then I sought out with Eric's help.
One of the world's best expertson this leading expert on law
(01:26):
with free user innovation.
We welcome to the show DistinguishedProfessor of Law at the University
of Kansas and visiting scholarat mit, Andrew w Torrance.
Welcome to the show.
Thanks very much, Aiden.
It's delightful to be here.
It's great to have you with us, man.
And Andrew was just telling me, wefound out we're gonna claim him.
(01:47):
Him as one of us Irish.
So he is Irish, he is bit Viking in there.
Bit of cel from the Scots,bit of Channel Islands, the
whole nine yards, all mixed up.
But you're Irish man.
We're claiming you.
I appreciate that.
Thank you.
Great to have you.
So let's launch into this.
The question that Iasked there, is it legal?
So the answer is, it's complicated.
(02:11):
There are all sorts ofthings that are legal.
And the way that I think aboutit, I think it's a good way for
others to think about it, is that.
The default is that thingsare typically legal.
Now I'm talking about, you know,the United States, Britain,
Australia, Canada, New Zealand,places with similar legal systems.
Generally speaking, what you doin your everyday life is legal
(02:35):
unless you're told otherwise.
And you can look into the laws, you canlook on the signs on the street, or maybe
an official from the government willremind you from time to time, you know,
if you're going a little fast in a slow.
On a slow street, but the default isthat you are free to do what you want.
(02:56):
And there's a wonderful metaphor, whichis that your freedom or my freedom
ends where my fist touches your nose,so I can interfere with you right up
to the point that I'm touching you.
And at that point, your rights kick inand my rights become secondary to yours.
(03:19):
But generally speaking, as long asI'm not interfering with other people,
there's a lot of things that I can do ina tremendous scope of freedom of action.
Let's build it.
So, I am a patient, I'm a free user.
I've built a product.
I think to myself, you know what, Ithink others could benefit from this.
I might give it to a few friendsfirst that I know maybe suffer
(03:42):
from the same ailment as me.
Say it's a healthcare product,
but then I wanna, do something about it.
Yeah, that's a good place to go.
And there's a couple of tiersthat we can walk through.
So the, the first tier is,I think about an invention.
I don't make it, but I thinkabout it completely, 100% free.
(04:05):
Second step, I go beyond thinking aboutit and I decide to tinker and make it.
In almost all circumstances, that'salso legal unless the government
has specifically prohibited thatparticular type of invention.
So for example, if you're workingon a medical device, no problem.
(04:25):
You can do that.
If you're working on a thermonuclearweapon, the government may have a few
things to say about that, and I wouldn'tgo there if I were you as an innovator.
Yeah, there's a variety of reasons inaddition to the law not to do that.
So, you can make things, you can inventthings, and then the next step would
(04:47):
be could you use them on yourself?
I. And generally speaking, yes,you can use them on yourself.
Now you start to get into an area of law,which is a little bit murky when you use
things on yourself, and it intersects withthe law of essentially mental illness.
So if you started to experimenton yourself with your innovation.
(05:12):
For example, this is afamous example, trip panning.
Do you know what trip panning is?
It's drilling holes in your head.
People used to do this in themiddle ages to release the demons.
I suspect they probably had migraineheadaches didn't typically end well,
although sometimes people would claimthat there was alleviation of the head
(05:33):
pain or the headache pain, probablybecause the other pain was overwhelming.
When you start to engage in crazybehavior like that, the government
might start to pay attention.
They might decide.
Maybe through your loved onesreporting you or your neighbor
saying, worried about this guy.
He's poking holes in his head.
(05:54):
They might come and try and assessyou and see whether they think that
you're in your right mind and if you'renot, you know, you enter the mental
health system, but as long as you'renot doing that sort of thing, you
can generally experiment on yourself.
Then you mentioned the case of.
I've got some friends theymight benefit from this.
(06:15):
So the first stage there isyou tell your friends about it.
You phone them up and tell them orally.
You bring them over and let them see yourinvention or you send them an email with
a description or a picture, et cetera.
No problem in general for you tospread that type of information.
Especially when the languagethat accompanies it is neutral.
(06:36):
So you're not saying to afriend who really relies on you
and looks to you for advice.
You're not saying do it right now.
You'd be, you'd be reallydumb not to do it right now.
Put it in your mouth, turn it on.
As long as it's sort of presentedin a neutral fashion, that's
generally gonna be okay.
The next step after that might be yougive a version of it to your friends.
(07:01):
You give a physical versionto your friends, so you
send it to them in the mail.
You walk it over to theirhouses, you, they come over
to your house and they use it.
That starts to trigger someresponsibilities on your part because
depending on what this invention.
Does to your friends, you mightstart having a little bit of
liability for damage that occurs.
(07:25):
On the other hand, if your friendsare sophisticated people, intelligent
people, wise, people who know enough tosay no and have decent judgment, and you
give them a copy of your invention, andlet's say you give them a little bit of
information about how it works and theygo ahead and use it of their own accord.
(07:45):
In a good state of mind, generallyspeaking, the responsibility transfers
to them and you're still okay.
The next step might be you decide to shareit more broadly, so maybe you put up a
website and you put up some schematics.
So that other people could build it,some schematics, instructions, et cetera.
(08:10):
Generally speaking, that's okay as well.
That sort of falls under free speech,so you can disseminate the idea over
the internet or you can put a posteror a billboard up outside your house.
Generally speaking, that's okay.
Again, if you are trying to influencepeople actively to do it or to use it
(08:31):
and you turn out to influence people who.
Maybe need a little bit of extrahelp to make decisions, you could
start to trigger a little bitof responsibility and liability.
But generally speaking, youcan disseminate the ideas.
The next stage is where thingsstart to transfer into what
I'd call the border lands.
(08:52):
The lands where we'renot quite sure it's okay.
We're not quite sure.
It's not Okay.
The intersection of the face and the fist.
Well it's it's analogous to that.
Yeah, exactly.
You start to sell it, let's say, oryou start to disseminate it widely
to people that you don't know.
But let's talk about the sellingpoint, because once you start to
(09:15):
sell and maybe you think this is agreat invention, there's a wonderful
market out there, I can't keepgiving these things away for free.
It's costing me money.
I just wanna make my money back.
I just want to, I wantto be even on the deal.
You start selling to people.
Well, in the countries that I mentionedin the Anglo-American legal system,
selling is a magical threshold.
(09:40):
Once you start to sell, the governmentreally perks up its ears, starts
paying attention, and I'll usethe United States as an example.
The federal government has a lot of power.
Over anything that crossesthe boundaries of a state.
They call it interstate commerce.
So if you sell some things locally,generally speaking, the federal government
(10:04):
is less interested in what you're doing.
But if you sell something to somebodywho lives in the next state over,
it's crossed a state line, suddenlythe federal government has very
strong authority to regulate thattype of sale, that type of commerce.
So at that point.
All of the federal agencies havejurisdiction over what you're doing.
(10:24):
If it's a food item or a medical device.
The Food and Drug Administration, ifit has to do with the environment, the
EPA, if it has to do with crimes, theFBI if it has to do with, you know,
selling it for too high an amount ofmoney there's a variety of agencies
that might try and regulate the price.
But in general, once you startto sell things, you've triggered.
(10:49):
The might of the federal governmentsand they have strong legal standing to
pay attention and to start regulatingthe sale, which could include regulating
whether or not you're allowed to sell it.
So that's really where thingsstart to get into the strong legal
realm where you need to be careful.
It's so timely, Andrew, because Iwas watching, there's a series on
(11:10):
Disney called The Age of Influence.
I dunno if you saw it yet, butit covers all these influencers
who are scam artists essentially.
And actually, I. You, you don't knowactually for sure if they are or not,
because they have these products.
The products are damaging people.
And I, I thought when I waspreparing for you, I, I thought
of that was like, oh, well.
That's kind of what's happened and peopleeither purposely build an audience on
(11:33):
whatever platform and then they get toa point where somebody goes, Hey, you
should sell this product, or I willpay you to advocate for this product.
And in many cases, they don'tknow what they're advocating for.
So I thought that was a relevant pieceto just pull into the conversation.
And if you have any case studiesof that or any thoughts on that,
I'd love you to share them.
(11:54):
It's very relevant.
Aiden, one of the ways inwhich it's relevant is that.
If you are passively sellingsomething, that's a slightly different
case than if you're selling itand making promises about it or
instructing people how to use it.
This is often wherepeople get into trouble.
They not only sell a littlemedical device, but they say,
you know, stick it in your ear,stick it in as far as it will go.
(12:18):
It will really release that ear pressure,you know, as it pops through the
Tim PanAm and destroys your hearing.
Generally speaking, you don't wannabe making promises like that or
instructing people like that and.
Again, the interstate commerce powertriggers the FDA, the food and Drug
administration to heavily regulateexactly that kind of sale or transfer.
(12:43):
And, and in fact, what the FDA doesprimarily is it looks at people's products
before they're allowed on the market.
And it looks at the instructions andthe description that comes with it, and
they regulate the words very heavily.
So if you're going to make a claim thata drug cures a disease, gotta go through
(13:03):
all sorts of tests in order to earn theright to describe in the packaging that it
will help you with a particular disease.
So words are really where the battlegroundis for the FDA in a lot of cases.
But if you don't say anythingabout it, you're is, you're
still in sort of the gray area.
But if you're selling it.
(13:25):
The federal government can reallydo what it wants in terms of
regulation, as long as it's reasonable.
Now you talked about influencers.
I don't have a lot of experience withinfluencers and you know, the, the
only role as an influencer I play iswith my kids and we're well beyond
the point where I can influenceanything that they think or do.
(13:45):
Mine stopped listening aroundmaybe 12 months, I think.
Yeah, well, you're luckyyou had the full 12 months.
But with respect to influencers, youknow, this, this phenomenon on the
web where you get people who have noparticular expertise, but because people
like them, because people like their,you know, the shininess of their skin
(14:06):
or have fluidly they can talk, or thefact they can bust a couple of dance
moves in a, you know, in a mall foyer.
People will listen to what they say.
And once an influencer starts to makeclaims about a product that's being
sold, the influencer or anybody elsewho's making those claims starts to
attract some legal responsibilityfor the truth of those claims.
(14:32):
So making false claims ininterstate commerce is not
something that you're allowed to do.
You might get away withit if you're not caught.
But not only the federal government,but the state government and
the local government might alldecide to question your claims.
And they have a variety of laws thatenforce, for example, honesty in
(14:56):
commerce and even if the governmenthas not written down these laws.
There is a very rich set of what we callcommon law rules, some of which go back
2000 years to the, the fall of the RomanEmpire, well, I guess 1500 years to
the fall of the Roman Empire, and, andthey really guard against false claims.
(15:16):
I. And you know, overreachingin advertising or slandering
the reputation of somebodywho's trying to sell something.
And those are things youdon't need the government for.
You can take people to court under thecommon law and claim fraud, for example,
or false advertising or disparaging thename of a, of a, you know, of a merchant.
(15:41):
So there's a long, there'sa lot of different legal.
Tools in the toolkit that startto kick in once you start to sell.
There's a, there's a dilemma in allof this, we did a show a few months
ago now with Dan Ariely on his book,misbelief, which is essentially about
misinformation and how misinformationcan lead people into conspiracy
(16:05):
theories, et cetera, et cetera.
Brilliant, brilliant book.
Highly, highly recommend it.
guy.
Brilliant guy.
Brilliant guy.
And.
He was a victim himself ofbeing a target for influencing
the covid vaccine, et cetera.
And the reason I'm mentioningthat is there's a, in an age of
so much misinformation and sucha difficulty to find the truth.
(16:30):
If you were ill, and I thought about thiswhen I was talking about Pedro and Eric.
Somebody's ill, God forbid they have abad diagnosis, and they say, I don't trust
typical medicine, which happens a lot.
And they go, I'm gonna takematters into my own hands.
And then I go looking for.
Some solution somewhere.
(16:52):
And this is very murky, and thisis where they can be led by an
influencer and people, people die.
And I, I'm not, I'm not saying I'mnot either for either side, so I'm
not influencing any decision here,
but I just wanted to share yourthoughts in, in your world.
How do you view those situations?
Because it's a perfect storm in a wayfor people to buy a product because
(17:15):
they think it's the right thingand they're trying to do the very
best for themselves or a loved one.
Sure.
You know, I'll, I'll just declaremy own sort of bias, which is I take
drugs that have gone through the FDAand if it's been through that rigorous
process, I have a lot of faith thatit's probably not gonna kill me.
(17:36):
I. And it's probably gonna havea positive effect on whatever
disease indication I'm using it for.
There's actually a book behind me calledreputation and Power by an author in
the political science department or thegovernment department at Harvard, in which
he talks about the growth , of trust inthe FDA and what's amazing and the
(17:56):
sort of long and short of it is that.
There's a lot of skepticism aboutgovernment departments different
constituencies, trust or distrust,different government departments in the
us but there is one agency, the Food andDrug Administration, which has maintained
faith at an incredibly high level.
When you ask people in polls.
(18:17):
Even up to the present day, peoplein general in the US really like the
idea of the FDA and they really likewhat the FDA does and they trust the
decisions that the FDI MA FDA makes.
Ironically, they have noidea what the FDA does.
They have no idea what thetests are, and blind faith, I
think, is usually a bad idea.
(18:38):
However.
I generally think it's good to havean agency that can bring scientific
expertise to bear on figuring outwhether things are safe and effective.
However, sometimespeople are in extremists.
Sometimes they can't find a drug or adevice or a method that can help them,
(19:01):
and they get desperate, and it's, inthose circumstances, I think that.
The legal framework I'm talking aboutis most powerful because it does
enable people to go beyond what'sbeen approved to a certain extent.
They can experiment on themselves.
I. To a large extent difficultto experiment on others
(19:24):
without triggering liability.
But you can suggest ideas to others.
You can experiment withalternative techniques.
So there's a lot of liberty in theAnglo-American legal system for doing
things on your own, for talking topeople about ideas that you have and
experiment experimentation in general.
(19:48):
When people are in desperate straits andthe conventional medical system doesn't
offer any solutions, I understand whypeople turn to alternative medicine.
I would be very cautious about itmyself, but I don't think that I would
prevent other people if they wereof sound mind and intelligent and
(20:08):
thoughtful people with the right motives.
I think in general, I would notstand in the way of letting them go
beyond the regulated medical system.
There are limits, of course, andmany things that they try don't work.
And a lot of alternativemedicine is complete bunk.
Now, presumably some of itisn't because everything, every
(20:30):
medicine starts as alternativemedicine before it's regulated.
So there's probably some gold in them.
Bar hills.
Along with a lot of fools gold and a lotof dangerous stuff that can hurt people.
But what that returns back down to anillegal sense is what do we allow people
to do themselves if it's their decision?
(20:51):
And what the law generally allowsyou to do is a lot of stuff if
it's yourself, and it allows youto tell people a lot of things.
Even if those things might not betrue, because we have a very robust
protection for freedom of thought,freedom of expression, and even freedom
of disseminating information to others.
But when you start to do things to otherpeople, you've entered the tort system.
(21:18):
If you do damage to them, they can sueyou for a variety of torts for injury.
Also, the federal government the localgovernment and the state government
has an interest in preventing youfrom engaging in assault or battery.
So one, one doctor's idea of treatmentcould be the patient's idea of assault
(21:40):
and battery, and there are lots of caseswhere doctors in good faith are trying to
help patients and if it involves physicaltouching, the patient might not agree
and might be able to sue for battery.
So stick to yourself,stick to your thoughts.
Generally speaking, you've got alot of liberty to act and to think,
(22:03):
start to do it to other people.
Start to sell it.
The law starts to kick in and themore you do it to other people,
the more you influence people that.
Can't really think wisely for themselves.
Minors, for example, people with mentalincapacity people who are unconscious.
The more the law steps in to protectthem, it makes it harder and harder
(22:25):
for you to do what you wanna do, evenif you think that it's for the best.
And then start to sell it, start todistribute it in interstate commerce.
Then governments have very strongpositions to regulate and sometimes
to punish what you're doing.
There's so many elements ofthe system here that's at play.
You mentioned the trust in the FDA,for example, and because of, I suppose
(22:49):
that there's more platform TV oron-demand TV like Netflix or Hulu in
the States, or Disney or Apple tv, youhave series now being made that probably
would've been not been made before
the horrific story of PurduePharma and the Sacklers and
Dope Sick.
For example, watching something like that.
(23:11):
And then, and then on top of that, ifyou have this availability heuristic
of these short bits of informationsaying, oh, they're all crooked and
Then you have indigenous medicines, forexample, which a lot of medicine came
from plants or nature in the first place.
Aspirin, I think is atree bark or something like
(23:31):
that.
, and then there's a patent on it.
It's sealed and then it, and then youhave all these stories that Oh, yeah,
they won't let your cure get out there.
They, because it will be a threatto their product and natural
medicine and psychedelics now,and mushrooms and everything.
And it's that storm that, you cansee where it really is a trust issue?
(23:54):
I agree.
Where do you allocate trustis an important question.
Do you allocate it only to thegovernment or do you allocate it to.
All the people or a subset of the people.
And I think in the Anglo-American system,the default has been that the people get
to keep a lot of trust in themselves.
Even when others mightnot think they deserve it.
(24:17):
We trust people to makedecisions for themselves.
We trust people to take responsibilityif they make mistakes, when they
do things on themselves when theystart to interfere with other people.
That's, again, when the legal systemand, governmental oversight kicks in.
I I wanted to mention somethingthat I think is related to this.
(24:38):
Back in 1987, there was a movementthat arose around the AIDS crisis.
It is called ACT Up or the, I think itwas the AIDS Coalition to Unleash Power.
And one of the reasons that the ActUp movement arose was the perception
(24:59):
that the FDA was not, regulating andapproving drugs fast enough that could
have a beneficial effect on peoplewho are suffering from HIV aids.
Now, the FDA's position, I think waswe're approving them as fast as we can
test them, and they're not ready yet.
I think that was more or less theofficial position and the ACT Up folks,
(25:23):
their position was, we can't wait.
We are dying.
Our loved ones are dying.
We're dying by the thousands,and if there's a drug.
That's not quite ready for prime time.
If we're gonna die anyway,let us use those drugs.
Let us make the decision about whetherto use antiretrovirals rather than
(25:45):
you, the FDA, act as the gatekeeper andwait four or five years until you're
absolutely certain that it does work.
And Act Up was largely successful.
It.
Convinced the FDA to loosen thestrictures a little bit and to release
some of the, you might think of themas experimental drugs before those
(26:05):
drugs had gone through the fullbattery of FDA tests and approval.
I. Now this sort of continuedthis idea that maybe the FDA
should release more drugs and letindividuals test themselves with it.
It continued until there was acase called Abigail Alliance.
Abigail was a young girl with whatappeared to be a terminal condition.
(26:30):
Her parents and her loved ones and acoalition of people tried to get the FDA
to give permission to a company that wasworking on a drug that might help Abigail
to allow that company to give the drug.
To Abigail so the doctorscould give her this drug.
She was going to die anyway,was the position they took.
(26:51):
So what's the worst that can happen?
If this drug doesn'twork, she will also die.
Or what happens if thedrug is bad for her?
Well, she's going to die anyway, soshe might just die a little bit faster.
I think.
Hopefully I'm giving justice to thearguments, but these were very
well-meaning people that wanted to dowhatever they could to save Abigail.
(27:11):
Now, the reason I mention theAbigail Alliance case is it went
to the DC Court, which is a veryinfluential low level court in the
District of Columbia and the us.
But despite the fact it's a low levelcourt, it has a lot of influence
because it's in DC that DC Courtgave some hope to the family.
(27:31):
That maybe they didn't need permissionfrom the FDA to get this drug.
But then it went up to the appeals courtin dc, which has authority over the lower
court, and the appeals court essentiallyreversed the judgment and said there
is no fundamental due process rightsfor any patient to get access to a drug
(27:53):
that has not been approved by the FDA.
Essentially, the Constitution does notgive terminal patients the right to access
drugs before the FDA has approved them.
However.
Despite the fact that sadly, Abigaildid pass away this idea that the FDA was
sitting on a hoard of unapproved drugsthat could potentially help people even
(28:17):
before they were approved officially.
It really gnawed away at the activistsand it eventually convinced the FDA
to loosen their rules a little bit sothat in extreme cases such as Abigail,
it would be easier from then on forthe FDA to give not approval, but to
(28:37):
allow people to use these experimentaldrugs if there was no other alternative.
So in the case of terminal illpatients, that's the strongest argument.
They're going to die anyway.
So what's the worst that can happen?
They die of a different cause, and I'mcertainly not trying to make light of
any of those decisions and say thatit's better to die one way or the other.
(28:58):
But essentially theargument was, we can't wait.
You've gotta give us accessto these things as long as we
meet these extreme conditions.
And one of the reasons I bringthis up is that this, in a way
is pushing at the boundaries.
That gray boundary between wherelaw regulates and where law doesn't
(29:18):
regulate, and the act Up folks andthe folks that came after them,
they really pushed that boundary.
In favor of the patient, and they pushedit so that the government authority and
the legal authority was lessened andthe authority of the individual to make
decisions about themselves, providing,of course, that they're wise in the right
(29:39):
mind and not mentally incapacitated.
They gained more freedomto make decisions.
So it's interesting thatover the past 30 years or so.
This frontier has been pushed backmodestly to allow individuals more
freedom to make decisions about their ownmedicine, for example, than they could
(29:59):
before, of course, with strict conditions.
But even so liberty haspushed forward a little bit.
Now, there are critics of thiswho say, this opens the floodgate.
It essentially nullifies the authorityof the FDA, which is there to prevent
people from dying from bad drugsand crank cures and alternative
(30:22):
medicine that has no basis in truthor maybe even could harm you, but.
For whatever reason, the FDA, thegovernment, congress and the public
appear to be more or less comfortablewith a little bit more freedom of
people to make their own choices inthat respect than they were before.
(30:44):
I have one more for you, which is, if wewere to build it up the other way and go,
okay, I have something that's of value.
Some of the cases that Pedroand Eric covered, for example,
I have something that's value.
I now may want to patent it.
And I read in your work that this isa deep part of your expertise as well.
(31:05):
I want to do something about that.
Maybe you have some advice for somemaker or some inventor who's created
something, who knows it's of value, whowants to get it out there, but actually
wants to keep the value, doesn't wantto give away the IP or get it stolen.
It's a great question.
The answer to It is not easy.
It's a little bit complicated, butI'll walk through the way that I
think about those particular issues.
(31:27):
In 2019, I had the opportunity tobecome the head of IP at a place
called the Broad Institute in Boston.
It's the full name I think is theBroad Institute of MIT and Harvard.
It's an institute that collects togethersome of the finest biomedical researchers
in the world, and they produce absolutemarvels in terms of medicines and
(31:50):
treatments and devices and algorithms.
So I, I spent two years there.
I. Running the IP policy for thebroad, and one of the things that I
learned is that they had been thinkingfor years before I arrived about
this balance between open and closed.
(32:12):
And I'm not for, I'm not suggestingfor a moment that they got
the balance absolutely right.
But what the Broad Institute decided todo was to have a very aggressive patenting
policy and a lot of the inventionsthat come out of the broad, such as.
Crispr genome editing are worth billionsand will eventually be worth trillions,
(32:33):
so they have a patenting policy wherethey patent really good inventions.
However, even though they receive patentsand a lot of their patents are extremely
evaluable, they have a policy of lettingresearchers use those inventions.
For non-commercial research.
(32:55):
So they free up researchers aroundthe world not to seek a license.
They can simply use it and there is alicense right on the website of the Broad
Institute that says, here are the usesyou can make of our patented technologies
without seeking permission from us.
So non-commercial or research oriented?
(33:17):
. Just to bring it into a common folk language like my own would be?
It's almost like Creative Commons licensethat you would see, like a Wikipedia.
, exactly.
It's very much like that.
And essentially what it says is we'renot gonna come after you we're not
gonna sign a piece of paper that saysyou can do whatever you want, but as
long as you follow the rules and youstay non-commercial and research based.
(33:41):
All around the world, regardlessof the country, the laboratory,
you can access our technology.
Now the idea there is twofold.
One, one is it really worthgoing after a laboratory
research with a bunch of lawyers?
It's unfair.
It doesn't look good.
It's expensive, and you're nevergonna get money out of them.
(34:02):
So why even bother?
So there's a pragmatic side towhy you don't want to bother going
after people who are innovatingwith patented inventions or
processes, but not for money.
As long as they're non-commercial,it's really not worth your while.
But then there's also a philosophical,a little more high-minded reason,
which is we don't want patents clampingdown on the next phase of innovation.
(34:27):
We don't want people afraid to thinkthoughts and afraid to practice inventions
that might lead to improvements and mightlead to brand new horizons in innovation.
So we don't want to get away with that.
It's also, practicallyspeaking, not worthwhile.
So why don't we just affirmatively set.
(34:49):
That part of innovation free andwe'll focus on the big companies
that are using our inventions, whichare patented without permission.
And those big companiesshould know better.
They themselves have SES oflawyers and deep pockets that
they can fight back with.
I think that is a really good balance.
(35:11):
It may not be the perfectbalance, but it's a really
good balance because patents.
And I think that patents do servea purpose in certain circumstances.
For example, in the biomedical drugcontext patents I think are very helpful
in allowing people to attract capital thatyou need to develop a complicated drug.
(35:37):
I don't think patents are as useful ifyou develop a new type of clo peg, for
example, but for a drug that requires.
Billions of dollars of investment andyears of FDA testing to get through the
testing process and be licensed a patent.
Sort of holds that money and investmenttogether long enough that you can
(35:59):
get that drug onto the market.
So there are certain circumstances,I think, where the arguments
for patents are very strong.
It's also an equalizer.
Small inventors who may not havemoney, may not have influence, they may
not have strong, powerful friends.
They might have a patent.
And it might equalize theirbargaining power when they go up
(36:22):
against a larger company that'ssimply trying to rip them off.
But if you have too many patents ontoo many things, especially trivial
little innovations that don't reallyadvance technological innovation, they
don't contribute to human progressin any more than a trivial sense.
That can gum up the works of innovation,not only by allowing the patentees
(36:47):
to tie down the innovators inlitigation, but even worse than that.
And I think, the damage is far higherin the respect I'm about to say.
I think that the mere fear that somebodymight come after you with a patent
can be enough to cause an innovator.
To not even bother to pursue aparticular line of reasoning.
(37:10):
So instead of being an inventor whichcould benefit the world, they go
into chiropractic, which can benefita person's back, but maybe doesn't
contribute in the long term as muchas a breakthrough innovation might.
So I, my view of patents is thatthey should be used judiciously.
There are all kinds of instances inwhich they are probably not worthwhile.
(37:32):
There are some instances where theyserve a very important purpose, but
that's usually in a big corporatecircumstance or where you've got very
unequal bargaining power between alittle gal who's got an invention and a
big party who's trying to rip them off.
So, yeah, I straddlethe line in that respect.
(37:54):
I'm neither pro nor con, but Ido think you've gotta slice the
baby in the best way possible.
Cancel project close peg, cancel project.
Right, right, right,
. I was thinking about one of the things that patents are
valuable for hugely is runway.
(38:14):
Like I always think it gives you enoughrunway to do the work to then almost
just recuperate , your investment even,and have maybe a little bit left over.
But one of the, most beautiful ideas, andI think it talks so well to your work and
the work of Eric Von Hippel is Jonah Salk,the inventor of the polio vaccine and.
People may know this or not, but hewas asked, why didn't you patent it?
(38:37):
And I'm sure he got a lot ofpressure, I'm sure, from his family
and loved ones who were like, youcould have been a billionaire.
And he said, well, couldyou patent the sun?
And I love that spirit and thatspirit's at the heart of your work.
Eric's work, Pedro, whowe spoke to as well.
Andrew, absolute pleasuretalking to you man.
Where can people findout more about your work?
You've Ted Talks out there as well.
(38:58):
I link to them in the show notes.
Where's the best placefor people to reach you?
I have a website at the Universityof Kansas School of Law, so you
could search on Torrance and ku.
I also have a repository of almost all ofmy papers, which are available for free.
I don't lock them up with anysort of intellectual property.
(39:18):
On a place called SSRN.
So if you searched on SSRN and Torrance,you'd come up against all my papers.
I'll save you the bother.
I'll put the links in the show notesfor those people listening to us.
Absolute pleasure.
Talking to, a good Irish man with agood heart distinguished professor
of law at the Kansas University.
(39:39):
Andrew w Torrance, thankyou for joining us.
It was a pleasure, Aiden.
Thanks very much.
Once again, thanks to our friends.
The sponsors of this series WazokuPioneers of Total Innovation, transforming
how organizations solve challenges,drive growth, and deliver measurable
results as the world's only networkedinnovation marketplace Wazoku connects
(40:00):
people, ideas, and technology tocreate scalable, impactful innovation.
You can find our friends at Wazoku, at ww.
Wazoku, dot com.
See you soon
Welcome to another episode ofthis series on the work of open
innovation and free user innovation.
It's brought to you by our friendsat Wazoku, Wazoku, are pioneers of
total innovation, transforming how ourorganizations solve challenges, drive
growth, and deliver measurable results.
As the world's only networkedinnovation marketplace Wazoku connects
(00:22):
people, ideas, technology to createscalable, impactful innovation.
You can find our friends at Wazoku, at wwdot Wazoku, dot com, or you can join us
at the Reinvention Summit this April 29thand 30th here in Dublin, Ireland, where I
will host so many of the brilliant gueststhat we've had on the innovation show.
(00:43):
Since its inception, we're gonnahave Seth Godin, Alex Osterwalder
here in Dublin himself, RitaMcGrath, my friend Charles Conn, the
Patagonia Chairman, Elvin Turner.
Kahan Krippendorf, and so many, many more.
Please do join us.
You can find out details atthereinventionsummit.com.
So far, we've covered thework of Eric Von Hippel.
(01:04):
We've covered patient innovationwith Pedro Oliviera, and one of the
questions that comes up with allthis is, well, if you make a product,
are you covered for that product?
Is it legal that you share that product?
They were the questions that came to meand then I sought out with Eric's help.
One of the world's best expertson this leading expert on law
(01:26):
with free user innovation.
We welcome to the show DistinguishedProfessor of Law at the University
of Kansas and visiting scholarat mit, Andrew w Torrance.
Welcome to the show.
Thanks very much, Aiden.
It's delightful to be here.
It's great to have you with us, man.
And Andrew was just telling me, wefound out we're gonna claim him.
(01:47):
Him as one of us Irish.
So he is Irish, he is bit Viking in there.
Bit of cel from the Scots,bit of Channel Islands, the
whole nine yards, all mixed up.
But you're Irish man.
We're claiming you.
I appreciate that.
Thank you.
Great to have you.
So let's launch into this.
The question that Iasked there, is it legal?
So the answer is, it's complicated.
(02:11):
There are all sorts ofthings that are legal.
And the way that I think aboutit, I think it's a good way for
others to think about it, is that.
The default is that thingsare typically legal.
Now I'm talking about, you know,the United States, Britain,
Australia, Canada, New Zealand,places with similar legal systems.
Generally speaking, what you doin your everyday life is legal
(02:35):
unless you're told otherwise.
And you can look into the laws, you canlook on the signs on the street, or maybe
an official from the government willremind you from time to time, you know,
if you're going a little fast in a slow.
On a slow street, but the default isthat you are free to do what you want.
(02:56):
And there's a wonderful metaphor, whichis that your freedom or my freedom
ends where my fist touches your nose,so I can interfere with you right up
to the point that I'm touching you.
And at that point, your rights kick inand my rights become secondary to yours.
(03:19):
But generally speaking, as long asI'm not interfering with other people,
there's a lot of things that I can do ina tremendous scope of freedom of action.
Let's build it.
So, I am a patient, I'm a free user.
I've built a product.
I think to myself, you know what, Ithink others could benefit from this.
I might give it to a few friendsfirst that I know maybe suffer
(03:42):
from the same ailment as me.
Say it's a healthcare product,
but then I wanna, do something about it.
Yeah, that's a good place to go.
And there's a couple of tiersthat we can walk through.
So the, the first tier is,I think about an invention.
I don't make it, but I thinkabout it completely, 100% free.
(04:05):
Second step, I go beyond thinking aboutit and I decide to tinker and make it.
In almost all circumstances, that'salso legal unless the government
has specifically prohibited thatparticular type of invention.
So for example, if you're workingon a medical device, no problem.
(04:25):
You can do that.
If you're working on a thermonuclearweapon, the government may have a few
things to say about that, and I wouldn'tgo there if I were you as an innovator.
Yeah, there's a variety of reasons inaddition to the law not to do that.
So, you can make things, you can inventthings, and then the next step would
(04:47):
be could you use them on yourself?
I. And generally speaking, yes,you can use them on yourself.
Now you start to get into an area of law,which is a little bit murky when you use
things on yourself, and it intersects withthe law of essentially mental illness.
So if you started to experimenton yourself with your innovation.
(05:12):
For example, this is afamous example, trip panning.
Do you know what trip panning is?
It's drilling holes in your head.
People used to do this in themiddle ages to release the demons.
I suspect they probably had migraineheadaches didn't typically end well,
although sometimes people would claimthat there was alleviation of the head
(05:33):
pain or the headache pain, probablybecause the other pain was overwhelming.
When you start to engage in crazybehavior like that, the government
might start to pay attention.
They might decide.
Maybe through your loved onesreporting you or your neighbor
saying, worried about this guy.
He's poking holes in his head.
(05:54):
They might come and try and assessyou and see whether they think that
you're in your right mind and if you'renot, you know, you enter the mental
health system, but as long as you'renot doing that sort of thing, you
can generally experiment on yourself.
Then you mentioned the case of.
I've got some friends theymight benefit from this.
(06:15):
So the first stage there isyou tell your friends about it.
You phone them up and tell them orally.
You bring them over and let them see yourinvention or you send them an email with
a description or a picture, et cetera.
No problem in general for you tospread that type of information.
Especially when the languagethat accompanies it is neutral.
(06:36):
So you're not saying to afriend who really relies on you
and looks to you for advice.
You're not saying do it right now.
You'd be, you'd be reallydumb not to do it right now.
Put it in your mouth, turn it on.
As long as it's sort of presentedin a neutral fashion, that's
generally gonna be okay.
The next step after that might be yougive a version of it to your friends.
(07:01):
You give a physical versionto your friends, so you
send it to them in the mail.
You walk it over to theirhouses, you, they come over
to your house and they use it.
That starts to trigger someresponsibilities on your part because
depending on what this invention.
Does to your friends, you mightstart having a little bit of
liability for damage that occurs.
(07:25):
On the other hand, if your friendsare sophisticated people, intelligent
people, wise, people who know enough tosay no and have decent judgment, and you
give them a copy of your invention, andlet's say you give them a little bit of
information about how it works and theygo ahead and use it of their own accord.
(07:45):
In a good state of mind, generallyspeaking, the responsibility transfers
to them and you're still okay.
The next step might be you decide to shareit more broadly, so maybe you put up a
website and you put up some schematics.
So that other people could build it,some schematics, instructions, et cetera.
(08:10):
Generally speaking, that's okay as well.
That sort of falls under free speech,so you can disseminate the idea over
the internet or you can put a posteror a billboard up outside your house.
Generally speaking, that's okay.
Again, if you are trying to influencepeople actively to do it or to use it
(08:31):
and you turn out to influence people who.
Maybe need a little bit of extrahelp to make decisions, you could
start to trigger a little bitof responsibility and liability.
But generally speaking, youcan disseminate the ideas.
The next stage is where thingsstart to transfer into what
I'd call the border lands.
(08:52):
The lands where we'renot quite sure it's okay.
We're not quite sure.
It's not Okay.
The intersection of the face and the fist.
Well it's it's analogous to that.
Yeah, exactly.
You start to sell it, let's say, oryou start to disseminate it widely
to people that you don't know.
But let's talk about the sellingpoint, because once you start to
(09:15):
sell and maybe you think this is agreat invention, there's a wonderful
market out there, I can't keepgiving these things away for free.
It's costing me money.
I just wanna make my money back.
I just want to, I wantto be even on the deal.
You start selling to people.
Well, in the countries that I mentionedin the Anglo-American legal system,
selling is a magical threshold.
(09:40):
Once you start to sell, the governmentreally perks up its ears, starts
paying attention, and I'll usethe United States as an example.
The federal government has a lot of power.
Over anything that crossesthe boundaries of a state.
They call it interstate commerce.
So if you sell some things locally,generally speaking, the federal government
(10:04):
is less interested in what you're doing.
But if you sell something to somebodywho lives in the next state over,
it's crossed a state line, suddenlythe federal government has very
strong authority to regulate thattype of sale, that type of commerce.
So at that point.
All of the federal agencies havejurisdiction over what you're doing.
(10:24):
If it's a food item or a medical device.
The Food and Drug Administration, ifit has to do with the environment, the
EPA, if it has to do with crimes, theFBI if it has to do with, you know,
selling it for too high an amount ofmoney there's a variety of agencies
that might try and regulate the price.
But in general, once you startto sell things, you've triggered.
(10:49):
The might of the federal governmentsand they have strong legal standing to
pay attention and to start regulatingthe sale, which could include regulating
whether or not you're allowed to sell it.
So that's really where thingsstart to get into the strong legal
realm where you need to be careful.
It's so timely, Andrew, because Iwas watching, there's a series on
(11:10):
Disney called The Age of Influence.
I dunno if you saw it yet, butit covers all these influencers
who are scam artists essentially.
And actually, I. You, you don't knowactually for sure if they are or not,
because they have these products.
The products are damaging people.
And I, I thought when I waspreparing for you, I, I thought
of that was like, oh, well.
That's kind of what's happened and peopleeither purposely build an audience on
(11:33):
whatever platform and then they get toa point where somebody goes, Hey, you
should sell this product, or I willpay you to advocate for this product.
And in many cases, they don'tknow what they're advocating for.
So I thought that was a relevant pieceto just pull into the conversation.
And if you have any case studiesof that or any thoughts on that,
I'd love you to share them.
(11:54):
It's very relevant.
Aiden, one of the ways inwhich it's relevant is that.
If you are passively sellingsomething, that's a slightly different
case than if you're selling itand making promises about it or
instructing people how to use it.
This is often wherepeople get into trouble.
They not only sell a littlemedical device, but they say,
you know, stick it in your ear,stick it in as far as it will go.
(12:18):
It will really release that ear pressure,you know, as it pops through the
Tim PanAm and destroys your hearing.
Generally speaking, you don't wannabe making promises like that or
instructing people like that and.
Again, the interstate commerce powertriggers the FDA, the food and Drug
administration to heavily regulateexactly that kind of sale or transfer.
(12:43):
And, and in fact, what the FDA doesprimarily is it looks at people's products
before they're allowed on the market.
And it looks at the instructions andthe description that comes with it, and
they regulate the words very heavily.
So if you're going to make a claim thata drug cures a disease, gotta go through
(13:03):
all sorts of tests in order to earn theright to describe in the packaging that it
will help you with a particular disease.
So words are really where the battlegroundis for the FDA in a lot of cases.
But if you don't say anythingabout it, you're is, you're
still in sort of the gray area.
But if you're selling it.
(13:25):
The federal government can reallydo what it wants in terms of
regulation, as long as it's reasonable.
Now you talked about influencers.
I don't have a lot of experience withinfluencers and you know, the, the
only role as an influencer I play iswith my kids and we're well beyond
the point where I can influenceanything that they think or do.
(13:45):
Mine stopped listening aroundmaybe 12 months, I think.
Yeah, well, you're luckyyou had the full 12 months.
But with respect to influencers, youknow, this, this phenomenon on the
web where you get people who have noparticular expertise, but because people
like them, because people like their,you know, the shininess of their skin
(14:06):
or have fluidly they can talk, or thefact they can bust a couple of dance
moves in a, you know, in a mall foyer.
People will listen to what they say.
And once an influencer starts to makeclaims about a product that's being
sold, the influencer or anybody elsewho's making those claims starts to
attract some legal responsibilityfor the truth of those claims.
(14:32):
So making false claims ininterstate commerce is not
something that you're allowed to do.
You might get away withit if you're not caught.
But not only the federal government,but the state government and
the local government might alldecide to question your claims.
And they have a variety of laws thatenforce, for example, honesty in
(14:56):
commerce and even if the governmenthas not written down these laws.
There is a very rich set of what we callcommon law rules, some of which go back
2000 years to the, the fall of the RomanEmpire, well, I guess 1500 years to
the fall of the Roman Empire, and, andthey really guard against false claims.
(15:16):
I. And you know, overreachingin advertising or slandering
the reputation of somebodywho's trying to sell something.
And those are things youdon't need the government for.
You can take people to court under thecommon law and claim fraud, for example,
or false advertising or disparaging thename of a, of a, you know, of a merchant.
(15:41):
So there's a long, there'sa lot of different legal.
Tools in the toolkit that startto kick in once you start to sell.
There's a, there's a dilemma in allof this, we did a show a few months
ago now with Dan Ariely on his book,misbelief, which is essentially about
misinformation and how misinformationcan lead people into conspiracy
(16:05):
theories, et cetera, et cetera.
Brilliant, brilliant book.
Highly, highly recommend it.
guy.
Brilliant guy.
Brilliant guy.
And.
He was a victim himself ofbeing a target for influencing
the covid vaccine, et cetera.
And the reason I'm mentioningthat is there's a, in an age of
so much misinformation and sucha difficulty to find the truth.
(16:30):
If you were ill, and I thought about thiswhen I was talking about Pedro and Eric.
Somebody's ill, God forbid they have abad diagnosis, and they say, I don't trust
typical medicine, which happens a lot.
And they go, I'm gonna takematters into my own hands.
And then I go looking for.
Some solution somewhere.
(16:52):
And this is very murky, and thisis where they can be led by an
influencer and people, people die.
And I, I'm not, I'm not saying I'mnot either for either side, so I'm
not influencing any decision here,
but I just wanted to share yourthoughts in, in your world.
How do you view those situations?
Because it's a perfect storm in a wayfor people to buy a product because
(17:15):
they think it's the right thingand they're trying to do the very
best for themselves or a loved one.
Sure.
You know, I'll, I'll just declaremy own sort of bias, which is I take
drugs that have gone through the FDAand if it's been through that rigorous
process, I have a lot of faith thatit's probably not gonna kill me.
(17:36):
I. And it's probably gonna havea positive effect on whatever
disease indication I'm using it for.
There's actually a book behind me calledreputation and Power by an author in
the political science department or thegovernment department at Harvard, in which
he talks about the growth , of trust inthe FDA and what's amazing and the
(17:56):
sort of long and short of it is that.
There's a lot of skepticism aboutgovernment departments different
constituencies, trust or distrust,different government departments in the
us but there is one agency, the Food andDrug Administration, which has maintained
faith at an incredibly high level.
When you ask people in polls.
(18:17):
Even up to the present day, peoplein general in the US really like the
idea of the FDA and they really likewhat the FDA does and they trust the
decisions that the FDI MA FDA makes.
Ironically, they have noidea what the FDA does.
They have no idea what thetests are, and blind faith, I
think, is usually a bad idea.
(18:38):
However.
I generally think it's good to havean agency that can bring scientific
expertise to bear on figuring outwhether things are safe and effective.
However, sometimespeople are in extremists.
Sometimes they can't find a drug or adevice or a method that can help them,
(19:01):
and they get desperate, and it's, inthose circumstances, I think that.
The legal framework I'm talking aboutis most powerful because it does
enable people to go beyond what'sbeen approved to a certain extent.
They can experiment on themselves.
I. To a large extent difficultto experiment on others
(19:24):
without triggering liability.
But you can suggest ideas to others.
You can experiment withalternative techniques.
So there's a lot of liberty in theAnglo-American legal system for doing
things on your own, for talking topeople about ideas that you have and
experiment experimentation in general.
(19:48):
When people are in desperate straits andthe conventional medical system doesn't
offer any solutions, I understand whypeople turn to alternative medicine.
I would be very cautious about itmyself, but I don't think that I would
prevent other people if they wereof sound mind and intelligent and
(20:08):
thoughtful people with the right motives.
I think in general, I would notstand in the way of letting them go
beyond the regulated medical system.
There are limits, of course, andmany things that they try don't work.
And a lot of alternativemedicine is complete bunk.
Now, presumably some of itisn't because everything, every
(20:30):
medicine starts as alternativemedicine before it's regulated.
So there's probably some gold in them.
Bar hills.
Along with a lot of fools gold and a lotof dangerous stuff that can hurt people.
But what that returns back down to anillegal sense is what do we allow people
to do themselves if it's their decision?
(20:51):
And what the law generally allowsyou to do is a lot of stuff if
it's yourself, and it allows youto tell people a lot of things.
Even if those things might not betrue, because we have a very robust
protection for freedom of thought,freedom of expression, and even freedom
of disseminating information to others.
But when you start to do things to otherpeople, you've entered the tort system.
(21:18):
If you do damage to them, they can sueyou for a variety of torts for injury.
Also, the federal government the localgovernment and the state government
has an interest in preventing youfrom engaging in assault or battery.
So one, one doctor's idea of treatmentcould be the patient's idea of assault
(21:40):
and battery, and there are lots of caseswhere doctors in good faith are trying to
help patients and if it involves physicaltouching, the patient might not agree
and might be able to sue for battery.
So stick to yourself,stick to your thoughts.
Generally speaking, you've got alot of liberty to act and to think,
(22:03):
start to do it to other people.
Start to sell it.
The law starts to kick in and themore you do it to other people,
the more you influence people that.
Can't really think wisely for themselves.
Minors, for example, people with mentalincapacity people who are unconscious.
The more the law steps in to protectthem, it makes it harder and harder
(22:25):
for you to do what you wanna do, evenif you think that it's for the best.
And then start to sell it, start todistribute it in interstate commerce.
Then governments have very strongpositions to regulate and sometimes
to punish what you're doing.
There's so many elements ofthe system here that's at play.
You mentioned the trust in the FDA,for example, and because of, I suppose
(22:49):
that there's more platform TV oron-demand TV like Netflix or Hulu in
the States, or Disney or Apple tv, youhave series now being made that probably
would've been not been made before
the horrific story of PurduePharma and the Sacklers and
Dope Sick.
For example, watching something like that.
(23:11):
And then, and then on top of that, ifyou have this availability heuristic
of these short bits of informationsaying, oh, they're all crooked and
Then you have indigenous medicines, forexample, which a lot of medicine came
from plants or nature in the first place.
Aspirin, I think is atree bark or something like
(23:31):
that.
, and then there's a patent on it.
It's sealed and then it, and then youhave all these stories that Oh, yeah,
they won't let your cure get out there.
They, because it will be a threatto their product and natural
medicine and psychedelics now,and mushrooms and everything.
And it's that storm that, you cansee where it really is a trust issue?
(23:54):
I agree.
Where do you allocate trustis an important question.
Do you allocate it only to thegovernment or do you allocate it to.
All the people or a subset of the people.
And I think in the Anglo-American system,the default has been that the people get
to keep a lot of trust in themselves.
Even when others mightnot think they deserve it.
(24:17):
We trust people to makedecisions for themselves.
We trust people to take responsibilityif they make mistakes, when they
do things on themselves when theystart to interfere with other people.
That's, again, when the legal systemand, governmental oversight kicks in.
I I wanted to mention somethingthat I think is related to this.
(24:38):
Back in 1987, there was a movementthat arose around the AIDS crisis.
It is called ACT Up or the, I think itwas the AIDS Coalition to Unleash Power.
And one of the reasons that the ActUp movement arose was the perception
(24:59):
that the FDA was not, regulating andapproving drugs fast enough that could
have a beneficial effect on peoplewho are suffering from HIV aids.
Now, the FDA's position, I think waswe're approving them as fast as we can
test them, and they're not ready yet.
I think that was more or less theofficial position and the ACT Up folks,
(25:23):
their position was, we can't wait.
We are dying.
Our loved ones are dying.
We're dying by the thousands,and if there's a drug.
That's not quite ready for prime time.
If we're gonna die anyway,let us use those drugs.
Let us make the decision about whetherto use antiretrovirals rather than
(25:45):
you, the FDA, act as the gatekeeper andwait four or five years until you're
absolutely certain that it does work.
And Act Up was largely successful.
It.
Convinced the FDA to loosen thestrictures a little bit and to release
some of the, you might think of themas experimental drugs before those
(26:05):
drugs had gone through the fullbattery of FDA tests and approval.
I. Now this sort of continuedthis idea that maybe the FDA
should release more drugs and letindividuals test themselves with it.
It continued until there was acase called Abigail Alliance.
Abigail was a young girl with whatappeared to be a terminal condition.
(26:30):
Her parents and her loved ones and acoalition of people tried to get the FDA
to give permission to a company that wasworking on a drug that might help Abigail
to allow that company to give the drug.
To Abigail so the doctorscould give her this drug.
She was going to die anyway,was the position they took.
(26:51):
So what's the worst that can happen?
If this drug doesn'twork, she will also die.
Or what happens if thedrug is bad for her?
Well, she's going to die anyway, soshe might just die a little bit faster.
I think.
Hopefully I'm giving justice to thearguments, but these were very
well-meaning people that wanted to dowhatever they could to save Abigail.
(27:11):
Now, the reason I mention theAbigail Alliance case is it went
to the DC Court, which is a veryinfluential low level court in the
District of Columbia and the us.
But despite the fact it's a low levelcourt, it has a lot of influence
because it's in DC that DC Courtgave some hope to the family.
(27:31):
That maybe they didn't need permissionfrom the FDA to get this drug.
But then it went up to the appeals courtin dc, which has authority over the lower
court, and the appeals court essentiallyreversed the judgment and said there
is no fundamental due process rightsfor any patient to get access to a drug
(27:53):
that has not been approved by the FDA.
Essentially, the Constitution does notgive terminal patients the right to access
drugs before the FDA has approved them.
However.
Despite the fact that sadly, Abigaildid pass away this idea that the FDA was
sitting on a hoard of unapproved drugsthat could potentially help people even
(28:17):
before they were approved officially.
It really gnawed away at the activistsand it eventually convinced the FDA
to loosen their rules a little bit sothat in extreme cases such as Abigail,
it would be easier from then on forthe FDA to give not approval, but to
(28:37):
allow people to use these experimentaldrugs if there was no other alternative.
So in the case of terminal illpatients, that's the strongest argument.
They're going to die anyway.
So what's the worst that can happen?
They die of a different cause, and I'mcertainly not trying to make light of
any of those decisions and say thatit's better to die one way or the other.
(28:58):
But essentially theargument was, we can't wait.
You've gotta give us accessto these things as long as we
meet these extreme conditions.
And one of the reasons I bringthis up is that this, in a way
is pushing at the boundaries.
That gray boundary between wherelaw regulates and where law doesn't
(29:18):
regulate, and the act Up folks andthe folks that came after them,
they really pushed that boundary.
In favor of the patient, and they pushedit so that the government authority and
the legal authority was lessened andthe authority of the individual to make
decisions about themselves, providing,of course, that they're wise in the right
(29:39):
mind and not mentally incapacitated.
They gained more freedomto make decisions.
So it's interesting thatover the past 30 years or so.
This frontier has been pushed backmodestly to allow individuals more
freedom to make decisions about their ownmedicine, for example, than they could
(29:59):
before, of course, with strict conditions.
But even so liberty haspushed forward a little bit.
Now, there are critics of thiswho say, this opens the floodgate.
It essentially nullifies the authorityof the FDA, which is there to prevent
people from dying from bad drugsand crank cures and alternative
(30:22):
medicine that has no basis in truthor maybe even could harm you, but.
For whatever reason, the FDA, thegovernment, congress and the public
appear to be more or less comfortablewith a little bit more freedom of
people to make their own choices inthat respect than they were before.
(30:44):
I have one more for you, which is, if wewere to build it up the other way and go,
okay, I have something that's of value.
Some of the cases that Pedroand Eric covered, for example,
I have something that's value.
I now may want to patent it.
And I read in your work that this isa deep part of your expertise as well.
(31:05):
I want to do something about that.
Maybe you have some advice for somemaker or some inventor who's created
something, who knows it's of value, whowants to get it out there, but actually
wants to keep the value, doesn't wantto give away the IP or get it stolen.
It's a great question.
The answer to It is not easy.
It's a little bit complicated, butI'll walk through the way that I
think about those particular issues.
(31:27):
In 2019, I had the opportunity tobecome the head of IP at a place
called the Broad Institute in Boston.
It's the full name I think is theBroad Institute of MIT and Harvard.
It's an institute that collects togethersome of the finest biomedical researchers
in the world, and they produce absolutemarvels in terms of medicines and
(31:50):
treatments and devices and algorithms.
So I, I spent two years there.
I. Running the IP policy for thebroad, and one of the things that I
learned is that they had been thinkingfor years before I arrived about
this balance between open and closed.
(32:12):
And I'm not for, I'm not suggestingfor a moment that they got
the balance absolutely right.
But what the Broad Institute decided todo was to have a very aggressive patenting
policy and a lot of the inventionsthat come out of the broad, such as.
Crispr genome editing are worth billionsand will eventually be worth trillions,
(32:33):
so they have a patenting policy wherethey patent really good inventions.
However, even though they receive patentsand a lot of their patents are extremely
evaluable, they have a policy of lettingresearchers use those inventions.
For non-commercial research.
(32:55):
So they free up researchers aroundthe world not to seek a license.
They can simply use it and there is alicense right on the website of the Broad
Institute that says, here are the usesyou can make of our patented technologies
without seeking permission from us.
So non-commercial or research oriented?
(33:17):
. Just to bring it into a common folk language like my own would be?
It's almost like Creative Commons licensethat you would see, like a Wikipedia.
, exactly.
It's very much like that.
And essentially what it says is we'renot gonna come after you we're not
gonna sign a piece of paper that saysyou can do whatever you want, but as
long as you follow the rules and youstay non-commercial and research based.
(33:41):
All around the world, regardlessof the country, the laboratory,
you can access our technology.
Now the idea there is twofold.
One, one is it really worthgoing after a laboratory
research with a bunch of lawyers?
It's unfair.
It doesn't look good.
It's expensive, and you're nevergonna get money out of them.
(34:02):
So why even bother?
So there's a pragmatic side towhy you don't want to bother going
after people who are innovatingwith patented inventions or
processes, but not for money.
As long as they're non-commercial,it's really not worth your while.
But then there's also a philosophical,a little more high-minded reason,
which is we don't want patents clampingdown on the next phase of innovation.
(34:27):
We don't want people afraid to thinkthoughts and afraid to practice inventions
that might lead to improvements and mightlead to brand new horizons in innovation.
So we don't want to get away with that.
It's also, practicallyspeaking, not worthwhile.
So why don't we just affirmatively set.
(34:49):
That part of innovation free andwe'll focus on the big companies
that are using our inventions, whichare patented without permission.
And those big companiesshould know better.
They themselves have SES oflawyers and deep pockets that
they can fight back with.
I think that is a really good balance.
(35:11):
It may not be the perfectbalance, but it's a really
good balance because patents.
And I think that patents do servea purpose in certain circumstances.
For example, in the biomedical drugcontext patents I think are very helpful
in allowing people to attract capital thatyou need to develop a complicated drug.
(35:37):
I don't think patents are as useful ifyou develop a new type of clo peg, for
example, but for a drug that requires.
Billions of dollars of investment andyears of FDA testing to get through the
testing process and be licensed a patent.
Sort of holds that money and investmenttogether long enough that you can
(35:59):
get that drug onto the market.
So there are certain circumstances,I think, where the arguments
for patents are very strong.
It's also an equalizer.
Small inventors who may not havemoney, may not have influence, they may
not have strong, powerful friends.
They might have a patent.
And it might equalize theirbargaining power when they go up
(36:22):
against a larger company that'ssimply trying to rip them off.
But if you have too many patents ontoo many things, especially trivial
little innovations that don't reallyadvance technological innovation, they
don't contribute to human progressin any more than a trivial sense.
That can gum up the works of innovation,not only by allowing the patentees
(36:47):
to tie down the innovators inlitigation, but even worse than that.
And I think, the damage is far higherin the respect I'm about to say.
I think that the mere fear that somebodymight come after you with a patent
can be enough to cause an innovator.
To not even bother to pursue aparticular line of reasoning.
(37:10):
So instead of being an inventor whichcould benefit the world, they go
into chiropractic, which can benefita person's back, but maybe doesn't
contribute in the long term as muchas a breakthrough innovation might.
So I, my view of patents is thatthey should be used judiciously.
There are all kinds of instances inwhich they are probably not worthwhile.
(37:32):
There are some instances where theyserve a very important purpose, but
that's usually in a big corporatecircumstance or where you've got very
unequal bargaining power between alittle gal who's got an invention and a
big party who's trying to rip them off.
So, yeah, I straddlethe line in that respect.
(37:54):
I'm neither pro nor con, but Ido think you've gotta slice the
baby in the best way possible.
Cancel project close peg, cancel project.
Right, right, right,
. I was thinking about one of the things that patents are
valuable for hugely is runway.
(38:14):
Like I always think it gives you enoughrunway to do the work to then almost
just recuperate , your investment even,and have maybe a little bit left over.
But one of the, most beautiful ideas, andI think it talks so well to your work and
the work of Eric Von Hippel is Jonah Salk,the inventor of the polio vaccine and.
People may know this or not, but hewas asked, why didn't you patent it?
(38:37):
And I'm sure he got a lot ofpressure, I'm sure, from his family
and loved ones who were like, youcould have been a billionaire.
And he said, well, couldyou patent the sun?
And I love that spirit and thatspirit's at the heart of your work.
Eric's work, Pedro, whowe spoke to as well.
Andrew, absolute pleasuretalking to you man.
Where can people findout more about your work?
You've Ted Talks out there as well.
(38:58):
I link to them in the show notes.
Where's the best placefor people to reach you?
I have a website at the Universityof Kansas School of Law, so you
could search on Torrance and ku.
I also have a repository of almost all ofmy papers, which are available for free.
I don't lock them up with anysort of intellectual property.
(39:18):
On a place called SSRN.
So if you searched on SSRN and Torrance,you'd come up against all my papers.
I'll save you the bother.
I'll put the links in the show notesfor those people listening to us.
Absolute pleasure.
Talking to, a good Irish man with agood heart distinguished professor
of law at the Kansas University.
(39:39):
Andrew w Torrance, thankyou for joining us.
It was a pleasure, Aiden.
Thanks very much.
Once again, thanks to our friends.
The sponsors of this series WazokuPioneers of Total Innovation, transforming
how organizations solve challenges,drive growth, and deliver measurable
results as the world's only networkedinnovation marketplace Wazoku connects
(40:00):
people, ideas, and technology tocreate scalable, impactful innovation.
You can find our friends at Wazoku, at ww.
Wazoku, dot com.
See you soon
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