97 Yale L.J. 177 (1987-1988)
Proprietary Rights and the Norms of Science in Biotechnology Research

handle is hein.journals/ylr97 and id is 195 raw text is: The Yale Law Journal
Volume 97, Number 2, December 1987
Proprietary Rights and the Norms of
Science in Biotechnology Research
Rebecca S. Eisenbergt
As basic research in biotechnology yields increasing commercial applica-
tions, 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 ar-
gues, 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 knowl-
edge 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 discov-
eries. Professor Eisenberg concludes that greater sensitivity to the impact of
 1987 Rebecca S. Eisenberg
t  Associate Professor of Law, University of Michigan Law School. I wish to thank Marty Add-
man, Ed Cooper, Mel Eisenberg, Julie Gage, Judah Garber, Paul Goldstein, Don Herzog, Dick
Kaba, Jim Krier, Rick Lempert, Jessica Litman, Fred Schauer, Jonathan Weinberg, Peter Westen,
and Virginia Wise for helpful comments on earlier drafts of this Article.

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