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Biotechnology and the Utilitarian Argument for Patents*

Published online by Cambridge University Press:  13 January 2009

Michele Svatos
Michele Svatos
Affiliation:
Philosophy, Iowa State University
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Extract

Biotechnology surpasses even computer technology in predictions of its potential for revolutionary effects on humankind. It includes agribusiness (genetically engineered plants, animals, hormones, etc.) and phar-maceuticals (diagnostics, genetic therapies, etc.). The U.S. government began investing heavily in biotechnology research in the 1980s, and by 1987 had spent approximately $2.7 billion to support research and development (R and D), including $150 million for agricultural biotechnology. The approximately sixty U.S. biotechnology companies invested $3.2 billion in R and D in 1991 alone, with a total of more than $10 billion spent since the industry began in the late 1970s.

Type
Research Article
Information
Social Philosophy and Policy , Volume 13 , Issue 2 , Summer 1996 , pp. 113 - 144
Copyright
Copyright © Social Philosophy and Policy Foundation 1996

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References

1 Lacy, William B., Bush, Lawrence, and Cole, William D., “Biotechnology and Agricultural Cooperatives: Opportunities, Challenges, and Strategies for the Future,” in Biotechnology: Assessing Social Impacts and Policy Implications, ed. Webber, David J. (New York: Greenwood Press, 1990), p. 74.Google Scholar

2 Warshofsky, Fred, The Patent Wars: The Battle to Own the World's Technology (New York: John Wiley and Sons, 1994), p. 209.Google Scholar

3 Hacking, Andrew J., Economic Aspects of Biotechnology (Cambridge and New York: Cambridge University Press, 1986), p. 46.Google Scholar

4 Ibid., pp. 43–44.

5 Outline of the History of the United States Patent Office (Patent Office Society, 1936); quoted in Warshofsky, , The Patent Wars, p. 32.Google Scholar

6 U.S. Constitution, section 8, para. 8.

7 Some authors make a distinction between the argument that patents encourage R and D, and the argument that they encourage an inventor to disclose her invention rather than keeping it secret. Since in either case the patent is seen as an inducement for the inventor to benefit society, I will consider them two different parts of a utilitarian argument.

8 J. S. Mill and Jeremy Bentham both argued for the patent system on grounds of distributive justice: it is only fair that the inventor receive a reward for his efforts, in proportion to the benefit he has given society. This seems to me to be closer to the argument that inventors have a natural right to their inventions. The argument that patents are justified as an incentive to inventors is more often identified as utilitarian, despite the positions of Mill and Bentham.

9 Hacking, , Economic Aspects of Biotechnology, pp. 45–46.Google Scholar

10 Mestel, Rosie, “Bean Patent Sweeps the Field,” New Scientist, vol. 142 (04 30, 1994), p. 7.Google Scholar

11 Diamond v. Chakrabarty, 447 U.S. 303, 308–9 (1980).

12 Kenney, Martin, Biotechnology: The University-Industrial Complex (New Haven, CT: Yale University Press, 1986), p. 257.CrossRefGoogle Scholar

13 Plein, L. Christopher, “Biotechnology: Issue Development and Evolution,”Google Scholar in Webber, , ed., Biotechnology, p. 158.Google Scholar Plein is himself describing the views of several observers.

14 Somatic cell gene therapy affects only an individual's normal body cells, and is not passed on to offspring. Germ-line genetic engineering affects reproductive cells, and affects one's children as well as their offspring.

15 Coghlan, Andy, “Outrage Greets Patent on Designer Sperm,” New Scientist, vol. 142 (04 9, 1994).Google ScholarPubMed

16 Robinson, Joan, The Accumulation of Capital (London: Macmillan, 1956), p. 87Google Scholar; quoted in Nelkin, Dorothy, Science as Intellectual Property (New York: Macmillan, 1984), p. 15.Google Scholar

17 Albrecht, William P. Jr., Economics, 4th ed. (Englewood Cliffs, NJ: Prentice-Hall, 1974), p. 468.Google Scholar

18 Ibid., p. 102

19 Mansfield, Edwin, Rapoport, J., Schnee, J., Wagner, S., and Hamburger, M., The Production and Application of New Industrial Technology (New York: W. W. Norton, 1977)Google Scholar; quoted in Wyatt, Geoffrey, The Economics of Invention (Brighton: Wheatsheaf, 1986), p. 215.Google Scholar

20 See, for example, Kloppenberg, Jack, First the Seed: The Political Economy of Plant Biotechnology, 1492–2000 (New York: Cambridge University Press, 1988).Google Scholar

21 Mansfield, Edwin, “R&D and Innovation: Some Empirical Findings,” in R&D, Patents, and Productivity, ed. Griliches, Zvi (Chicago: University of Chicago Press, 1984), p. 142.Google Scholar

22 Machlup, Fritz, Knowledge: Its Creation, Distribution and Economic Significance, vol. 3, The Economics of Information and Human Capital (Princeton: Princeton University Press, 1984), p. 176.Google Scholar

23 Wyatt, , The Economics of Invention, p. 126.Google Scholar

24 Warshofsky, , The Patent Wars, pp. 214–30, 249.Google Scholar

25 See, for example, Kloppenberg, , First the Seed.Google Scholar

26 Merges, Robert P., “Commercial Success and Patent Standards: Economic Perspectives on Innovation,” California Law Review, vol. 76 (07 1988).CrossRefGoogle Scholar

27 Nelkin, , Science as Intellectual Property, p. 26.Google Scholar

28 Ibid., p. 28.

29 Machlup, , “The Supply of Inventors and Inventions”Google Scholar; quoted in Wyatt, , The Economics of Invention, p. 205.Google Scholar

30 Wyatt, , The Economics of Invention, pp. 15–16.Google Scholar

31 Ibid., p. 17.

32 Crouch, Martha, “The Very Structure of Scientific Research Mitigates against Developing Products to Help the Environment, the Poor, and the Hungry,” Journal of Agricultural and Environmental Ethics, vol. 4, no. 2 (1991).CrossRefGoogle Scholar

33 Hacking, , Economic Aspects of Biotechnology, p. 45.Google Scholar

34 Wuethrich, Bernice, “All Rights Reserved: How the Gene-Patenting Race Is Affecting Science” Science News, vol. 144 (09 4, 1993), p. 154.CrossRefGoogle ScholarPubMed

35 Ibid.

36 Cannon, Brian C., “Toward a Clear Standard of Obviousness for Biotechnology Patents,” Cornell Law Review, vol. 79 (1994), p. 761.Google Scholar

37 Cookson, Clive and Clayton, Julie, “Of Mice, Men, and Money: Legal Action over Patent Disputes Threatens to Stifle Investment in Biotechnology,” Financial Times, 06 3, 1992, p. 18Google Scholar; cited in Cannon, , “Toward a Clear Standard,” p. 761 n. 169.Google Scholar

38 Fleisher, Beverly, “Who Will Benefit from Agricultural Biotechnology: An Analysis of Economic and Legal Influences,”Google Scholar in Webber, , ed., Biotechnology (supra note 1), pp. 104–5.Google Scholar

39 Quillen, Cecil D. Jr., “Innovation and the United States Patent System Today” (paper presented to the Antitrust and Patent Sections of the American Bar Association meeting, 10 19, 1992)Google Scholar; quoted in Warshofsky, , The Patent Wars, p. 246.Google Scholar

40 Warshofsky, , The Patent Wars, p. 247.Google Scholar

41 Ibid., pp. 247–48.

42 Michael Rostoker, quoted in ibid., p. 251.

43 Machlup, Fritz, The Production and Distribution of Knowledge in the United States (Princeton: Princeton University Press, 1962), p. 169.Google Scholar

44 For an account of this, see, for example, Nelkin, , Science as Intellectual Property, pp. 9–10.Google Scholar

45 Doolittle, Russell, quoted in Nelkin, , Science as Intellectual Property, p. 11.Google Scholar

46 Kennedy, Donald, “Health Research: Can Utility and Quality Co-exist?”Google Scholar (lecture given at the University of Pennsylvania, December 6, 1980), quoted in Nelkin, , Science as Intellectual Property, p. 12.Google Scholar

47 Nelkin, , Science as Intellectual Property, p. 25.Google Scholar

48 Blumenthal, David, Gluck, Michael, Louis, Karen Seashore, Stoto, Michael A., and Wise, David, “University-Industry Research Relationships in Biotechnology: Implications for the University,” Science, vol. 232 (06 13, 1986), pp. 1361–66CrossRefGoogle ScholarPubMed; and Blumenthal, , Gluck, , Louis, , and Wise, , “Industrial Support of University Research in Biotechnology,” Science, vol. 231 (01 17, 1986), pp. 242–46CrossRefGoogle ScholarPubMed–both cited in Lacy, , Bush, , and Cole, , “Biotechnology and Agricultural Cooperatives” (supra note 1), p. 79.Google Scholar

49 For example, see Mackenzie, Michael, Keating, Peter, and Cambrosio, Alberto, “Patents and Free Scientific Information: Making Monoclonal Antibodies Property,” Science, Technology, and Human Values, vol. 15, no. 1 (Winter 1990), pp. 65–83.CrossRefGoogle Scholar The authors conclude that “[t]here has been a shift in the boundaries—an extension of the territory of proprietary information into that of free information—which has profound implications for the way scientific research is done. This shift, taking place under pressure of economic interests, amounts to nothing less than a subtle but significant realignment in the political economy of science and technology.”

50 Nelkin, , Science as Intellectual Property, p. 98.Google Scholar

51 Kenney, , Biotechnology (supra note 12), p. 256.Google Scholar

52 Machlup, Fritz, The Political Economy of Monopoly (Baltimore: Johns Hopkins University Press, 1952), p. 281Google Scholar; quoted in Palmer, Tom G., “Intellectual Property: A Non-Posnerian Law and Economics Approach,” Hamline Law Review, vol. 12, no. 2 (Spring 1989), p. 293.Google Scholar

53 Wuethrich, , “All Rights Reserved,” pp. 154–57.Google Scholar See also the continued discussion of the issue over the past several years in Science and Nature.

54 Machlup, Fritz, “An Economic Review of the Patent System” Patent StudiesGoogle Scholar, no. 1 (Subcommittee on Patents, Trademarks, and Copyrights of the Committee on the Judiciary, U.S. Senate, Eighty-fifth Congress, Second Session, 1958), p. 15; quoted in Palmer, , “Intellectual Property,” p. 300.Google Scholar

55 Priest, George L., “What Economists Can Tell Lawyers about Intellectual Property,” Research in Law and Economics, vol. 8 (1986), p. 19.Google Scholar

56 Office of Technology Assessment, U.S. Congress, Commercial Biotechnology: An International Analysis (Washington, DC: U.S. Government Printing Office, 1984).Google Scholar

57 Hacking, , Economic Aspects of Biotechnology, p. 281.Google Scholar

58 Suzuki, David and Levine, Joseph, The Secret of Life (Boston: WGBH, 1993).Google Scholar

59 See, for example, Kloppenberg, , First the SeedGoogle Scholar; and Lacy, , Bush, , and Cole, , “Biotechnology and Agricultural Cooperatives,” p. 77.Google Scholar

60 Lacy, , Bush, , and Cole, , “Biotechnology and Agricultural Cooperatives,” p. 82.Google Scholar

61 They also have the potential for funding pure research, as they often do now. Social utility need not be the only criterion for awarding research grants; or, a certain level of funding for pure research may best promote long-run utility.

62 One might worry about the established scientific community's resistance to really innovative ideas. This is already a topic of concern within the grant system. One proposed solution is to set aside money specifically for very new avenues of research which challenge established ideas, and in fact the NIH is now funding research on “alternative” medicine as a result of this concern. Moreover, even if the patent system were eliminated, the grant system might be combined with some other way(s) of encouraging innovation.

63 Bosin, Morris, “Policymakers Address Biotechnology: Issues and Responsibilities,”Google Scholar in Webber, , ed., Biotechnology (supra note 1), p. 172.Google Scholar

64 The patent office, with a budget of $520 million in 1994, is entirely funded by its own income from patent applications; that money could, for example, be paid by companies to the FDA instead, to help fund the additional staff needed to speed up approvals. On the other hand, reducing the responsibilities of the FDA in approving new drugs would also speed the process and might (or might not) promote overall utility.

65 “Patently Outdated: Changes in the Way Drugs Are Invented Are Making Patents Unworkable,” The Economist, 07 18, 1987, pp. 17–18.

66 Coase, Ronald, “The Lighthouse in Economics,” Journal of Law and Economics, vol. 17 (1974), p. 357CrossRefGoogle Scholar; quoted in Palmer, ibid., p. 286.

67 Goldin, Kenneth, “Equal Access vs. Selective Access: A Critique of Public Goods Theory,” Public Choice, vol. 29 (1977), p. 62CrossRefGoogle Scholar; quoted in Palmer, , “Intellectual Property,” p. 286.Google Scholar

68 Strictly speaking, virtually any software can be copied, regardless of copy-proofing, by a sufficiently determined and knowledgeable person. Technological “locks” in particular are susceptible to technological lock-picks. Some software developers have realized that hackers are only a step behind them with each new anti-copying device, and have given up copy-proofing as a wasteful, never-ending effort to outsmart the hackers.

69 Hirshleifer, Jack, “The Private and Social Value of Information and the Reward to Inventive Activity,” American Economic Review, vol. 61 (09 1971), pp. 570–71.Google Scholar

70 Ibid., p. 572.

71 Priest, , “What Economists Can Tell Lawyers about Intellectual Property” pp. 22–23.Google Scholar

72 shoes, Wooden, or sabotsGoogle Scholar, the French root of “saboteur.” There are various stories about this. According to one story, workers in the early Industrial Revolution threw their sabots into machinery to stop it, probably in a protest against mechanization. Another story has it that workers would saboter—work clumsily, clattering their wooden shoes as they walked.

73 Marx, Leo, “Does Improved Technology Mean Progress?” Technology Review, 01 1987.Google Scholar

74 See Kloppenberg, , First the Seed (supra note 20).Google Scholar

75 See ibid.

76 Lacy, , Bush, , and Cole, , “Biotechnology and Agricultural Cooperatives,” p. 80.Google Scholar The authors cite an anonymous personal interview.

77 And, if utility is to be defined in terms of preference-satisfaction, I assume that an individual's preferences are incompletely described by her actions in the economic realm.

78 See Fowler, Cary and Mooney, Pat, Shattering: Food, Politics, and the Loss of Genetic Diversity (Tucson: University of Arizona Press, 1990)Google Scholar; and Shand, Hope, “There Is a Conflict between Intellectual Property Rights and the Rights of Farmers in Developing Countries,” Journal of Agricultural and Environmental Ethics, vol. 4, no. 2 (1991).CrossRefGoogle Scholar

79 Shand, , “There Is a Conflict between Intellectual Property Rights and the Rights of Farmers in Developing Countries,” p. 133.Google Scholar

80 Bright, Chris, “Who Owns Indigenous Peoples' DNA?” World Watch, 11/12 1994.Google Scholar The application was later dropped in the face of protests and because the product turned out not to be commercially valuable.

81 Holm, Søren, “Genetic Engineering and the North-South Divide,” in Ethics and Biotechnology, ed. Dyson, Anthony and Harris, John (New York: Routledge, 1994), p. 51.Google Scholar

82 Ibid., p. 54.

83 Lacy, , Bush, , and Cole, , “Biotechnology and Agricultural Cooperatives,” p. 75.Google Scholar

84 Although I think that the patent system is unjustified on utilitarian grounds, I am not a utilitarian. I would favor a natural rights approach to justifying intellectual property. However, I suspect that such an approach might not justify the current American patent system, and it also might not justify the patenting of, e.g., genetically engineered life-forms.