Abstract

http://ssrn.com/abstract=1822223
 


 



Food and Drug Law as Intellectual Property Law: Historical Reflections


Kara W. Swanson


Northeastern University - School of Law

April 15, 2011

Wisconsin Law Review, Vol. 2011, Issue 2, pp. 331-398
Northeastern University School of Law Research Paper No. 49-2011

Abstract:     
This Article returns to the late nineteenth and early twentieth centuries to consider food and drug law as intellectual property law. Today, Americans are engaged in two separate debates about food and drugs. One centers on the safety of these consumables, and the effectiveness of the Food and Drug Administration. The other is spurred by serious questions of equity involving the ownership and pricing of patented pharmaceuticals and crops, and centers on patent law and the Patent and Trademark Office. These debates were once part of a single broad conversation about food and drugs. This Article uses an historical perspective to understand the separation of these debates and to consider the opportunities that arise from considering food and drug law as intellectual property law. It argues both that early food and drug law was influenced by intellectual property concerns and that the separation of intellectual property policy from federal food and drug regulation was neither inevitable nor inconsequential. Drawing on the history of science, technology, and medicine, this Article reexamines the early pure-food-and-drug movement as, in part, an anti-intellectual-property movement. It uncovers the opposition to trade secrets that supported an alliance between medical opponents to proprietary medicines and agricultural opponents to artificial foods that successfully supported early federal food and drug regulation, and the simultaneous failure of a medical campaign against drug patents. By considering the historical shift in the pharmaceutical market from trade secrets to patents in relation to the recent trend toward patents in agribusiness, this Article considers the lessons from history for a reunification of food and drug policy with intellectual property policy.

Number of Pages in PDF File: 68

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Date posted: April 25, 2011 ; Last revised: February 21, 2014

Suggested Citation

Swanson, Kara W., Food and Drug Law as Intellectual Property Law: Historical Reflections (April 15, 2011). Wisconsin Law Review, Vol. 2011, Issue 2, pp. 331-398; Northeastern University School of Law Research Paper No. 49-2011. Available at SSRN: http://ssrn.com/abstract=1822223

Contact Information

Kara W. Swanson (Contact Author)
Northeastern University - School of Law ( email )
400 Huntington Ave.
Boston, MA 02115
United States
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