Postcard from the Reality-Based Universe: "Wish You Were All Here!" A Meditation on the Relationship between Science, Intellectual Property Law, and the Rights of Indigenous Populations in Plant Genetic Resources
Schmidt, Dorothy E., Environmental Law
I. INTRODUCTION A. The Debate B. Setting the Stage 1. Stakes and Stakeholders 2. The Nature of IP Law C. In Search era Center II. SCIENCE, TECHNOLOGY & EXPERTISE A. What is Science? B. Technology & Patents C. Who is an Expert? III. THE POLITICS OF BIOPIRACY AND THE RIGHTS OF INDIGENOUS POPULATIONS A. Issues and Arguments: Biopiracy, Biocolonialism, and Scientific Imperialism 1. Examples of Harm 2. Arguments Against Biopiracy IV. INTELLECTUAL PROPERTY LAW & BIOLOGICAL "INVENTIONS" A. Boundaries of IP Rights in Biology in the United States 1. US Protections for Plant Breeders 2. Utility Patents on Products of Nature Under U.S. Law B. International IP Law 1. National Variation 2. Indigenous Rights Under The Convention on Biological Diversity 3. The Empire Strikes Back: WTO/TRIPS V. RECONSIDERING IP LAW & INDIGENOUS RIGHTS A. The Rhetoric Problem B. IP Law: Too Hot, Too Cold, or Just Right? C. Creativity and Progress in the Useful Arts VI. CONCLUSION A. A Teachable Moment? B. Embracing a Reality-Based View of the Universe C. The Creative Animal, IP Incentives, and the Fate of the Planet D. Asking the Right Questions
What, then, is the waste land? It is the land where the myth is patterned by authority, not emergent from life; where there is no poet 's eye to see, no adventure to be lived where all is set for all and forever: Utopia!
--Joseph Campbell (1)
Over the past couple of decades, I have heard many news reports claiming various egregious abuses of patent rights in food crops or medicinal plants by some large corporation. The underlying accusation generally goes like this: Someone with lots of money is claiming exclusive rights in a plant, thereby depriving a population of traditional users of their rights to grow their own crops, or use their own traditional medicines. Having studied patent law, I wanted to understand what was really behind these reports, because in reality, patents cover only new inventions by individual inventors and cannot cover widely-used traditional crops or knowledge. As it turns out, such stories are generally misleading, based on misunderstandings of the law or distortions of fact. Yet they also contain a kernel of real injury and a causal link between the injury and patent law that is not especially tenuous.
A. The Debate
The "biopiracy" debate concerns the ways in which corporations in "developed" nations have used intellectual property (IP) law to reap substantial profits based on biological resources from "developing" countries. One side argues for the rights of relatively poor "developing" nations to benefit from their remaining riches in biodiversity--riches that often are rapidly vanishing. On the other side, IP scholars point out that current IP laws simply do not apply to the rights being asserted, not least because the main rationale of IP law is to stimulate new creations. The arguments on either side are rooted in fundamentally different attitudes toward science and technology, a difference central to this Comment. Biopiracy is a broad topic, but I will limit my discussion to patent rights in plant resources as a central issue in the debate, and one that illustrates how science figures into the argument. I will then explore the arguments on either side, consider their assumptions about science, innovation, and creativity, and conclude by arguing for a central role for science in formulating a new relationship between intellectual property and indigenous rights grounded in objective reality rather than hostile rhetoric.
Since rhetoric--the artful use of language plays such an important role in this area, I should clarify my policy for using certain terms of art. The astute reader will have noticed that I placed the words "developed" and "developing" in quotes above. …