'All Life is an Experiment': Research Tool Patents, Epistemological Monopolies, and the First Amendment
51 Pages Posted: 25 Aug 2013
Date Written: August 23, 2013
Patents on research tools — technological inputs to basic scientific research — have attracted significant scholarly attention. Most of the existing literature focuses on the potential for such patents to inhibit basic scientific research and downstream commercial development through creating tragedies of the anticommons. While some empirical work has cast doubt on the anticommons theory, the potential for research tools to inhibit basic research persists. Building upon these economic accounts of research tool patents, this Article examines the First Amendment implications of exclusive rights on foundational research technologies. Examining several prevailing theories of the First Amendment, it argues that exclusive rights on research tools may seriously jeopardize traditional First Amendment interests in facilitating a robust marketplace of ideas, ensuring individual self-realization, promoting democratic discourse, and checking central political authority.
Keywords: patents, First Amendment, research tools, biomedical science, tragedy of the anticommons, legal theory
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