Semiconductor Chips, Genes and Stem Cells: New Wine for New Bottles?

Abstract

This paper provides an analogy between early semiconductor technology and the economics surrounding the semiconductor industry and isolated genes, stem cells and related bioproducts, as well as the economics surrounding the biotechnology industry, to make the case for sui generis (of its own class) intellectual property protection for isolated bioproducts. Just as early semiconductors failed to meet the patent social bargain requiring novelty and non-obviousness in the 1980’s, isolated genes and stem cells presently fail to meet the patent bargain requirements of non-obviousness and eligible subject matter. Nevertheless, like early semiconductor chip designs, the high cost of upstream bioproduct research and development, coupled with the need to sustain continued economic growth of the biotechnology industry, mandates that Congress provide some level of exclusive rights to ensure continued funding for this research. Sui generis intellectual property protection for isolated bioproducts would preserve the incentive to continue innovation. As illustrated in the semiconductor industry, however, any sui generis protection for this technology must include limitations that address the need to provide an appropriate level of public access to facilitate downstream product development and enrich the public domain.