Proprietary Rights and the Norms of Science in Biotechnology Research

Abstract

As basic research in biotechnology yields increasing commercial applications, scientists and their research sponsors have become more eager to protect the commercial value of research discoveries through intellectual property law. Some scientists fear that these commercial incentives will weaken or even undermine the norms that have traditionally governed scientific research. In this Article, Professor Eisenberg examines the interaction of proprietary rights in inventions with these traditional scientific norms. Trade secrecy, she argues, is an undesirable strategy for protection of basic research discoveries because it impedes dissemination of new knowledge to the scientific community. She finds that patent law is in many respects more congruent with scientific norms than trade secrecy because it is premised on disclosure rather than secrecy. Professor Eisenberg demonstrates, however, that the fit between the patent system and the norms and incentives of the scientific community is hardly perfect. Patent law may operate to delay the dissemination of knowledge to other researchers. Moreover, by granting rights to exclude others from using patented inventions for a term of years, the patent system threatens the interest of the scientific community in the free use and extension of new discoveries. Professor Eisenberg concludes that greater sensitivity to the impact of patent law doctrine on scientific norms will help to reconcile the norms and incentives of these two systems.

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