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4 Tex. Rev. L. & Pol. 87 (1999-2000)
Evolving Patent Law in the New Age of Biomedical Science

handle is hein.journals/trlp4 and id is 99 raw text is: EVOLVING PATENT LAW IN THE NEW AGE OF BIOMEDICAL SCIENCE ROBERT BLACKBURN' The United States Constitution gives us a clear purpose for the patent system: to promote the progress of science. We live in an unprecedented age of medical science, which is extremely fortunate. With the discovery of new pathogenic viruses, such as HIV and the Hepatitis-C virus, and the emerging threat of prions, the cause of mad cow disease, it is clear that we are in a biological war. It is possible to lose this war. Regardless of the constitutional purpose behind the patent system, never before have we had a greater need to encourage the progress of medical science. While the patent system2 has undoubtedly promoted the progress of the traditional pharmaceutical industry, does that system promote the vital progress we need in today's cutting- edge biomedical technologies? You might guess that I would not raise the question if I thought the answer was an unqualified yes. To examine the patent system's shortcomings we must look at the intersection of law, policy, and some sophisticated science. There is a significant difference between biotechnology and traditional pharmaceutical chemistry. An oversimplified distinction between the two is as follows. Traditional pharmaceutical chemistry, if you went back twenty-five years or so, focused on the basic structures of small chemical compounds that had pharmaceutical activity. The chemist would start with what is called a lead compound that had a desirable activity. * Vice President and Chief Patent Counsel of Chiron Corporation; adjunct professor of chemical and biotechnology intellectual property at the University of California, Berkeley. The views expressed by the author are presented for the purpose of academic discourse and are not attributable to his clients. 1. U.S. CONST. art. I, § 8, cl. 8. 2. For purposes of this paper, the patent system refers to Title 35 of the U.S. Code as implemented by the United States Patent and Trademark Office and the federal courts. 35 U.S.C. §§ 1-376 (1994 & Supp. ).

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