This article was first published in: 98 American Journal of International Law 641(2004)


This article addresses the corrosive interplay between the patent-based and the sovereign- based systems of ownership of genetic material. In patent-based systems, genetic material is increasingly “owned” by corporations or research institutions which obtain patents over such material. In sovereign-based systems, the national government owns or extensively controls such material. As more patents issue for synthesized genes in developed countries through the patent system, more raw genetic material is legally enclosed by the governments of developing nations, which house most of the world’s wild or raw genetic material. This interactive spiral of increased enclosure results in the sub-optimal utilization, conservation and improvement of vital genetic material.

This article adds to the scholarship that critiques the patenting of genetic material in the United States by focusing on the international collateral damage occasioned by overbroad patenting in this area. In addition, it takes the first comprehensive critical look at the sovereign-based system. It argues that sovereign ownership or extensive control over genetic material (i) risks creating an anticommons in raw genetic material (ii) threatens the liberty and autonomy of individuals and indigenous communities whose property contains such material and (iii) is premised on a flawed approach in international law that has led to broad and unenforceable regimes that will increase tensions between nations. Moreover, the interaction between the patent-based and the sovereign-based systems risks setting off a major trade dispute under the TRIPS Agreement.

To repair this situation, I propose a framework for a more open system for genetic material. I recommend that the United States take into account the adverse reaction of other countries when determining as a utilitarian matter whether and, if so, to what extent to allow patents for genetic material. Expansive patent rights over genetic material can cause innovation in the biotechnology field to fall to suboptimal levels because they cause sovereigns in the world’s most genetically diverse nations to curtail access to the raw material that contributes to such innovation. For their part, genetically-rich developing countries should, inter alia, adopt more selective and value-added approaches to enclosure.


Intellectual Property Law | International Law | International Trade Law

Date of this Version

October 2004