A Virtue-Centered Approach to the Biotechnology Commons (or, the Virtuous Penguin)

University of Maine Law School, Closing in on Open Science Symposium

32 Pages Posted: 17 Nov 2006

See all articles by David W. Opderbeck

David W. Opderbeck

Seton Hall University - School of Law

Date Written: 2006


This essay sketches out a virtue ethics/virtue jurisprudence approach to biotechnology intellectual property policy.

The debate over biotechnology intellectual property policy seems intractable. Instrumentalists dicker about how to tweak incentives in order to produce the best mix of innovation and disclosure, without stepping back to ask whether the consequentialist approach is best on a broad scale. Hegelians seem to have little to say about biotechnology, given that researchers seem to bear little resemblance to the artists and poets who most obviously pour their personalities into their work. Postmodern critics offer some trenchant critiques of the current system, but suggest few alternatives that could be realized in contemporary biotechnology.

Perhaps the biotechnology "thicket" has as much to do with these conflicting underlying philosophies of intellectual property as it does with individual patent rights that must be cleared to conduct research in this field. Virtue ethics may illuminate a path forward. By situating biotechnology as a community dedicated to human flourishing, and focusing on the practices that move that community ever towards its goal, the assumptions and language we use to describe biotechnology intellectual property policy may begin to change. As these assumptions begin to change, perhaps a move towards a more open community of biotechnological science will also become more tractable.

Keywords: intellectual property, open source, open science, open access publishing, biotechnology, virtue ethics, virtue jurisprudence, aristotle

Suggested Citation

Opderbeck, David W., A Virtue-Centered Approach to the Biotechnology Commons (or, the Virtuous Penguin) (2006). Available at SSRN: https://ssrn.com/abstract=945473 or http://dx.doi.org/10.2139/ssrn.945473

David W. Opderbeck (Contact Author)

Seton Hall University - School of Law ( email )

One Newark Center
Newark, NJ 07102-5210
United States
973-642-8496 (Phone)

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