Title

Why It Is Time to Eliminate Genomic Patents, Together with Natural Extracts Doctrine That Have Supported Such Patents

Abstract

The constitutional purpose of intellectual property is to “promote the progress of science and useful arts.” Given the utilitarian basis of patents, it is critical that policies and laws must be continually adjusted to reflect the needs of new technologies. When the law tries to shield itself from rather than confront the realities of underlying technologies, patents end up actually subverting rather than promote technological progress. This paper explores why the natural extracts doctrine belongs to the class of doctrines that subvert progress. The doctrine, established over a century ago to enable the patenting of purified compounds for use as drugs, represent codification of old, outdated science, by allowing genes to be patented. While this paper does not give a whole scale solution regarding the policies that best incentivize biotechnological innovations, it does show how the natural extracts doctrine and the genetic patents it has spawned can impede innovations in the biotechnological context. It ends by offering a glimpse of how eliminating the natural extracts doctrine can remove not only some of unnecessary wrinkles in current patent law but more importantly the many current and future patent shackles to biotechnological innovations.

Disciplines

Food and Drug Law | Health Law and Policy | Intellectual Property Law | Internet Law | Law and Economics | Medical Jurisprudence | Science and Technology Law

Date of this Version

July 2006