The Irrationality of Speculative Gene Patents

The burgeoning interest over the last decade in technology transfer at universities in the United States has driven contentious debates over patent policy. In this context, biotech patenting has become the poster-child for claims that the proliferation of patenting by universities, and in the private sector, is undermining scientific norms and threatening innovation. Commentators have expressed particular fears about the negative effects of biotech patenting on the public information commons and concerns about emerging “patent anticommons.” This chapter argues that the standard (finite) commons model is being misapplied in the biotech arena because, owing to the complexity of biological processes and the power of existing biotech methods to produce genetic data, biomedical science is, in crucial respects, an unbounded, uncongested common resource. These findings imply that strategic biotech patenting of problem-specific research tools (i.e., single-nucleotide polymorphisms, drug targets) is not economically justified and therefore is irrational.