Patents claiming DNA sequences have been subject to extensive public and scholarly criticism due to their potential to impede innovation and to restrict access to affordable healthcare. Recent empirical studies, however, indicate that access to materials is a much more serious problem than patents are for basic biomedical researchers, and access to materials is also a critical problem for producers of biomedical end products like biopharmaceuticals. This Note argues that these physical research tools should be included in a more expansive concept of “bio-knowledge,” and that solving the access to materials problem is critical for increasing biomedical innovation. This problem has been caused in part by changing norms among basic researchers, but fully undoing the commercialization of university research is neither possible nor desirable. Instead, partial solutions may be found within the patent system, both through reducing the transaction costs associated with material transfers and through increased use of official material depositories by both basic and industrial researchers.
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Last weekend at the backetball tournament in Las Vegas a friend of mine who supplies complex chemicals to drug manufactures – was delighted to find details of a drug component his customer was interested in – get this – in Google Patents. I walked in the room and he said: “God I love google patents!” He explained to me in the old days, to find details of this drug element would be very difficult. Yet, in less than an hour, he had the details he needed and was able to sell 50 kilograms ($200,000) based upon what he found in the published patent. While one must be very careful to not infringe another’s patent claims, there remains a HUGE amount of readily available information in published patents and this benefits all scientists in the community. The body of science contained in patent publications is, fresh, leading edge, updated weekly, easily searchable, remarkably detailed, et cetera. Patents are not just about “slowing innovation and making health care expensive” – indeed, I’d argue it does just the opposite. I anjoyed the article – thanks.