Inverting the Logic of Scientific Discovery

Peter Lee, Yale Law School

Abstract

This article argues that patents on biotechnology research tools—critical inputs to basic science experimentation—contravene common law prohibitions against patenting natural laws, natural phenomena, and abstract ideas. In so doing, this article explores a new model of intellectual property law for research tools, one that recognizes an inversion of the traditional relationship between science and technology. Current patent law reflects the premise that basic science precedes technology; innovators draw from basic knowledge in the public domain to produce patentable technologies. At the frontiers of biomedical science, however, this paradigm is inverted; specialized (and patented) technologies are increasingly indispensable to producing basic knowledge itself. This article argues that patenting these research tools is akin to patenting the basic knowledge they help generate, thus producing the kind of “epistemological monopolies” that traditional patentable sub! ject matter doctrine seeks to prevent. In a wider sense, this article explores the potential for intellectual property rights to enable monopolies not only at the level of technology, but at the level of basic knowledge and theory itself.