Protection of Biotechnological Inventions: A Burden Too Heavy for the Patent System

By Padron, Miguel Sanchez; Uranga, Mikel Gomez | Journal of Economic Issues, June 2001 | Go to article overview

Protection of Biotechnological Inventions: A Burden Too Heavy for the Patent System


Padron, Miguel Sanchez, Uranga, Mikel Gomez, Journal of Economic Issues


Patent protection for biotechnological inventions has attracted growing public criticism since 1980, when the US Supreme Court in the landmark Diamond v. Chakrabarty case held by a margin of one vote that the first patent on a genetically engineered living organism should be honored. In fiscal year 1999 Technology Center 1600 (USPTO), which handles patents in biotechnology, organic chemistry, and pharmaceuticals, received more than 31,000 patent applications. "The growth of these patent filings is largely due to innovations in biotechnology which have resulted in new areas of research and development, such as genomics and bioinformatics" (Dickinson 2000, 2).

Biotechnology Patenting: Views from Distinct Spaces

The use of patents in biotechnology began before the basic questions of patentability in this field had even been framed clearly. However, since it takes patent offices and courts years to construe the level of technological skills of a particular year, the validity of a biotechnological patent may be validated by litigating the science of the early 1980s in the year 2000.

This picture is completed by adding three features:

* The very broad patents being issued in biotechnology. On this topic see Merges and Nelson 1990, Barton 1995, and Roberts 1994.

* The use of patent law by large companies to weave a web of patents around a product or a particular research area to pre-empt imitators and deter competitors from carrying out research in that area.

* Under US patent laws, pending patent applications were maintained in secrecy by the PTO until the patent was granted. [1]

Against this background the need to scrutinize hundreds of patent documents and huge databases to provide background state of the art and to avoid infringement becomes a nightmarish task.

Furthermore, the present concern with patenting all kinds of biotechnological matter is beginning to restrict the development of biotechnology to a private path where claims on behalf of society are difficult to accommodate because of legal hurdles of all types. This may even prevent the subsequent reentry of a technology into the public domain for humanitarian purposes (see Normile 2000, 843; The Guardian, November 15, 2000; Berrier 1996, 474; The Guardian, July 1, 2000).

What is going wrong may seem simple to identify, but in the present circumstances it cannot be too strongly stated: although the patent system has for long been formally connected to morality, many members of the patent community have taken the view that "protecting advances in the life sciences for commercial purposes raises no new moral dilemmas and does not require any new legislative action" (Carey 1995, 226). Further, US Congressional hearings have resulted in the view that "patent law is not the place to exercise moral judgements about scientific activity" (Schapira 1997, 171, quoted in Drahos 1999a). This, of course, raises the issue of where, and by whom, this question should be dealt with.

To answer the question, we consider it useful to note the existence of different points of view held by two mutually and, to a great extent, isolated communities. One airs its multi-centered points of view in cyberspace and either takes an anti-patent stand, period, or considers that the patent system is a human-made institution which should be subject to democratic control. In this space, morality is in command and moral choices are justified by a deontological ethics which stresses that ethical decisions should be taken at levels other than that of the individual.

The other community airs its views in journals and, by and large, accepts patents for what they are: an enshrinement of private property. In this space, patents are seen as a device whereby market economies try to cope with the peculiarities of knowledge as a public good: non-rivalry and non-excludability. Non-rivalry (once produced, the provision of knowledge to an additional individual has zero marginal cost) implies that the widest dissemination of knowledge at zero cost is desirable. …

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