Steady the Course: Property Rights in Genetic Material

Abstract

This paper defends the current legal regimes for the creation of property rights in the human genome and related forms of intellectual property. The basic trade-off of any system of intellectual property is the desire to spur innovation on the one hand while preventing the creation of blockades once patents are recognized. It argues that the creation of multiple patents not only increases the risk of blockade but creates the offsetting benefit of different ways to reach any business objective. The paper then reviews and rejects various strategies that may be used to both respect patent rights and undo blockades, including condemnation of patents and regimes of compulsory licenses. It also argues that the current rules on genomic patenting meet the general standards for valid patents, and concludes against many critics that the current system offers about the right mix between private rights and public access.

Note: A previous version of this paper was posted in June 2002.

Keywords: patents, antitrust, genome, condemnation, compulsory licenses