Patenting Science: Protecting the Domain of Accessible Knowledge

Abstract

For the most part, the contributions to this volume examine commodification as it applies to cultural products. In this chapter, we look at the effect of commodification on scientific and technological activity. Differences between cultural and scientific production and within the intellectual property laws applicable to these enterprises alter the debate on the relationship between commodification and what (for reasons set out below) we prefer to call the ‘domain of accessible knowledge.’ Some issues are less contentious in the context of technological production while others take on new dimensions. Furthermore, the role that patents play in the organization of scientific research and the nature of international obligations applicable to patenting combine to impose significant constraints on the strategies available to those who would expand public access at the inventive frontier. This chapter proceeds as follows: after discussing the nature of the commodification debate and the constraints unique to scientific and technological production, we explore ways in which the domain of accessible knowledge could be reconstituted. In our discussion of these strategies, we draw on previous work in which we analyzed various substantive methods for curbing perceived encroachments on the public domain to see how each would fare if challenged under the TRIPS Agreement; we then investigated the relationship between the dynamics of domestic legislative procedures and TRIPS dispute resolution outcomes. In this piece, we continue our examination of the domestic efficacy and TRIPS compatibility of substantive alterations to the patent system: strengthening the non-obviousness (inventive step) requirement; narrowing the scope of patent claims; and recognizing new occasions in which the government may use patented inventions without authorization (but with payment). As in our other pieces, our purpose is not to predict the outcome of future disputes—there are far too few WTO precedents for that. Rather, our goal is to explore how the interpretive approaches pursued at the international level affect the ability of TRIPS members to keep their laws attuned to the developments and needs of science. Taking our four articles together, we argue that under certain interpretations of TRIPS, a variety of prophylactic substantive steps to protect the domain of accessible scientific knowledge could be taken, that each has a different pay-off as a matter of domestic policy, but that there is little relationship between the strength of the obstacle posed by TRIPS and the impact of the approach on innovation. Furthermore, we see reason to worry that the analytical tools utilized to date carry a strong potential for altering the political economies of member states in ways that create a one way ratchet in favor of increased commodification. We conclude that a map of the public domain of the type charted by Pamela Samuelson must do more than consider the effects of various domestic laws and policies because the international system (as currently administered) shapes the legal landscape on which individual nations are operating. To alter that landscape, patent strategists should consider a variety of approaches. But we suggest that it may be particularly fruitful to adapt the rhetoric of scholars seeking to promote the public domain in domestic copyright law. The differences we see in the commodification debate may not, after all, reflect genuine differences between cultural and technological production. Rather, it may be that copyright scholars better appreciate the value in framing the public's interest as a right to access.

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