Perusing property rights in DNA.

Abstract

Many practical questions have arisen since the use of patents relating to DNA has become progressively more common after the landmark case of Diamond v. Chakrabarty in 1980: What ownership rights do patents confer? What is owned? Who owns it? What does ownership mean to nonoweners? The central theme of the chapter is that much of the debate about patent rights relating to DNA is needlessly burdened by concerns that are inapposite, given an informed understanding of how things actually work in this area; and that as a result, insufficient attention is paid to exploring propositions that might elucidate or even alleviate pertinent problems in need of solutions. The approach of the chapter is more analytical than prescriptive. It endeavors to unpack how property rights in this area actually operate and concludes by making a few modest prescriptions about areas for future study, including efforts to explore the mechanisms that might be at play when actual transactions in basic biological materials and protocols break down. The intuition behind the chapter is that although many of the problems identified by patent critics do exist and, in theory, might be pernicious in creating some inefficiency in the form of dead-weight loss, in practice these problems turn out to be less pernicious than those likely to be caused by alternative regimes and are mitigated through various behaviors of market participants.