Patents for genetic inventions: a tool to promote technological advance or a limitation for upstream inventions?

Abstract

Today's conventional wisdom among economists and lawyers is heavily weighted toward the proposition that strong and broad patent rights are conducive to economic progress. Concerns have been raised as to the extent to which strong patent rights could build up barriers to follow-up research and thus hinder technological advance. This poses a number of difficulties particularly in the area of genetics with respect to the scope of protection and the definition of what is patentable. This article considers the problems of ‘anti-commons’, limitations for upstream inventions, patent thickets and royalty stacking with licenses for genetic inventions. A survey of 53 biotechnology companies in Switzerland builds the empirical basis of the investigation. The survey results confirm that the concepts of ‘anti-commons’, ‘patent thickets’ and ‘royalty stacking’ are indeed relevant. However, they are not highly relevant for the Swiss biotechnology industry from an economic point of view. A broad research exemption combined with a protection limited to concrete disclosure functions of DNA patents and compulsory licensing arrangements are considered as feasible remedies for overcoming certain difficulties with gene patents.