Letter to Kevin Kimberlin

It doesn’t seem that long ago that you were in our M∙CAM offices at an annual meeting talking about the future of innovation and the central role Spencer Trask and M∙CAM would play in migrating the markets from the industrial to the innovation economy.  That was 2006.  My, how time flies.  I was reminded of your visits a few weeks ago when you wrote the Wall Street Journal opinion about the commercial importance of illegal gene patents and medical innovation.  As a “co-founder” of Myriad Genetics, I regrettably understand the desire you had to monetize the scourge of breast cancer as investing on fear has been a safe bet for centuries.  I’m also deeply grateful that the U.S. Supreme Court confirmed what we said back then.  The patent Myriad acquired on natural genetic mutations was invalid and the fact that Myriad received it didn’t make it any more legal.  You can buy a patent examiner's integrity but you can't buy legality or morality.  Many of their other patents are susceptible to invalidity and, in time, they will be tested in the market.

(Note: The breathless coverage of Angelina Jolie's mastectomy on CNN and elsewhere appears to be timed to attempt to influence the Supreme Court's decision by the people who wanted to trade the fear of cancer - Kevin's Myriad.)

For those of you who don’t remember the man that funded Edison’s light bulb, Spencer Trask also kept the New York Times out of bankruptcy in 1896 and became a funding partner for the now dishonored Moody’s Investors Service.  His relentless support of actual invention – Marconi’s wireless telegraph, the phonograph and other breakthroughs – fostered many industries that persist to this day.  His investments sought to stimulate the betterment of humanity – not the economically elitist selective culling of cancer patients based on their ability to feed investor returns.

It seems fitting that, on this same week that Kevin’s venture was found to have violated patent law, we actually did something here at M∙CAM that actually is sympathetic to the impulse of his firm’s namesake, Spencer Trask.  Also in 1896, Charles Dow and Edward Jones launched an equity index that sought to quantify an average performance of a class of industrial stocks that reflected the American economy.  One hundred and seventeen years later, we launched the Innovation 30 – an index of public equities that match the Dow’s market scale and volatility but represent firms that have prioritized innovation in their businesses.  Interestingly enough about ½ of the Dow components get replaced with firms that more accurately measure the impact of the innovation economy.  If you measure the productive deployment of actual research, development and deployment, you can find several new companies that more accurately reflect the productive economy.  You can also, through the substitution, measure consistent and substantial out-performance in those equities over time.  And best of all, you don't need to follow Myriad's lead in breaking the law to do it.

What does this mean in everyday life?  Well, that’s a good question.  Kevin’s Myriad Genetics built its enterprise on a violation of patent law.  In his justification for making breast cancer detection the domain of economically equipped women, Kevin insisted that the labor associated with the description of a naturally formed gene justified the firm’s patent claims.  This logic drove centuries of colonial arrogance that asserted that putting a boat in the water and sailing for a few months gave misfit seamen the “right” to the continents on which they landed.  Exploitation of nature and people – who cares!  It was done with considerable effort.  Innovation which involves violating the law (to say nothing about morality and regard for human life) is not innovative – it’s un-Constitutional.  When we measure genuine innovation, we actually measure legality and then take the next step: we measure the degree to which legal innovation is put to productive use.

The Supreme Court decision is a hollow victory.  The fact that the Court had to rule on an abuse of the law that enriched shareholders at the expense of human life is a travesty.  While we can take some solace in the fact that the law was upheld – an all too infrequent occurrence of late – we should be gravely concerned with a humanity that perpetuates the mercenary impulses of those who trade on mortality.  Far from the rich cultural and philanthropic legacy of Spencer Trask – whose contributions to the arts expanded MoMA, literature and culture – Kevin’s last stand will be remembered by the press offensive trying to influence the Supreme Court by celebrating painful therapeutic and prophylactic mastectomies. 

The Supreme Court decision was the first step towards emancipating nature from the misappropriation of inhumane actors.  There are many more.  For those of you who wish to build on the impulse unleashed by the Myriad decision, I would invite you to become part of a campaign of bringing light to this illegal and unethical practice.  Using M∙CAM’s All Patents Considered website, get a perspective on other efforts to expropriate nature and then use your networks to get people informed and engaged.  And Kevin, the world doesn’t need more Myriads – we need a little more of what Spencer Trask actually sought to manifest over a century ago.