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94 Nw. U. L. Rev. 77 (1999-2000)
Regulating Scientific Research: Intellectual Property Rights and the Norms of Science

handle is hein.journals/illlr94 and id is 87 raw text is: Copyright 1999 by Northwestern University School of Law Printed in U.S.A. Northwestern University Law Review Vol. 94, No. I REGULATING SCIENTIFIC RESEARCH: INTELLECTUAL PROPERTY RIGHTS AND THE NORMS OF SCIENCE Arti Kaur Rai* Among legal scholars, a debate is currently raging about the proper scope of intellectual property rights in non-commercial-or basic'-scien- tific research. The debate focuses on basic research in molecular biology, the foundational science of the large and dynamic biotechnology industry.! Associate Professor, University of San Diego Law School. I thank Larry Alexander, Stuart Ben- jamin, Julie Cohen, John Drobak, Rebecca Eisenberg, Susan Freiwald, Pauline Kim, Mark Lemley, Larry Lessig, Charles McManis, Stephen Munzer, Frank Partnoy, Michael Rappaport, Carol Steiker, and Chris Wonnell for helpful comments. I presented versions of this Article at Harvard University's Pro- gram on Ethics and the Professions, the University of San Diego, the Washington University School of Law, St. Louis, and the University of California at Los Angeles School of Law. 1 See, eg., Michael Davis, The Patenting of Products of Nature, 21 RuTGERS COMPUTER & TECH. L.J. 293 (1995); Rebecca S. Eisenberg, Intellectual Property at the Public-Private Divide: The Case of Large-Scale eDNA Sequencing, 3 U. CHI. L. SCH. ROUNDTABLE 557 (1996); Rebecca S. Eisenberg & Robert P. Merges, Opinion Letter as to the Patentability of Certain Inventions Associated with the Iden- tification of Partial cDNA Sequences, 23 AIPLA Q.J. 1 (1995); Matthew Erramouspe, Staking Patent Claims on the Human Blueprint: Rewards and Rent-Dissipating Races, 43 UCLA L. REv. 961, 962-65 (1996); Michael A. Heiler & Rebecca S. Eisenberg, Can Patents Deter Innovation? The Anticommons in Biomedical Research, 280 SCIENCE 698 (1998); Kate H. Murashige, Genome Research and Traditional Intellectual Property Protection-A Bad Fit, 7 RISK: HEALTH SAFETY & ENV'T 231 (1996); Diana Sheiness, Patenting Gene Sequences, 78 J. PAT. & TRADEMARK OFF. SOC'Y 121 (1996); G. Kenneth Smith & Denise M. Kettelberger, Patents and the Human Genome Project, 22 AIPLA QJ. 27 (1994); Stephen A. Bent & Paul M. Booth, Genomics Race Raises Ownership Boundary Issue, NAT'L L.J., Jan. 26, 1998, at C3. See also infra note 182 (discussing percentage of university licensing revenue that de- rives from biotechnology patents). The definition of basic research merits a brief discussion. Basic research has generally been defined as research that focuses on the formulation of conceptual schemes and their development and testing. See BERNARD BARBER, SCIENCE AND THE SOCIAL ORDER 95 (1953). Because basic research is rela- tively theoretical in nature, a significant period of time may elapse before basic research has practical consequences. See id. at 98-99. Notably, research may be basic even when it suggests a variety of practical uses. This is because the time period that elapses before the practical uses can be realized is often quite significant. For example, as Samuel Oddi has pointed out, the discovery that certain compo- sitions of matter exhibit superconductive qualities at temperatures well above absolute zero immediately suggested practical applications in the electric power and computer industries. However, because the technology necessary for realization of the practical possibilities was far from obvious, the discovery could still be considered basic. See A. Samuel Oddi, An Uneasier Case for Copyright than for Patent Protection of Computer Programs, 72 NEB..L. REV. 351, 423-24 (1993). Similarly, in the context of biotechnology, most basic research is undertaken with the practical goal of preventing or ameliorating disease in mind. However, the path from the basic research to a particular therapy may be quite circui- tous. See Bruce Smith & Claude Barfield, Contributions of Research and Technical Advance to the

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