An Economic Analysis of Biotechnology Patent Protection

The emergence of biotechnology, the science of creating new organisms with useful and commercially viable applications, has thrown traditional conceptions of patent law into turmoil.' In Diamond v. Chakrabarty, 2 the United States Supreme Court broadened the concept of patent protection to include inventions derived from biological advances, holding that genetically altered living microorganisms constituted patentable subject matter.3 This marriage of biotechnological inventions and patent law is not a happy one. Biotechnology distinguishes itself from the traditional mechanical and chemical arts that undergird patent law doctrines. Self-replicating biotechnological inventions pose unique problems, not only because the product duplicates itself for competitors as well as for consumers, but because the concept of patenting a living creature cuts against patent law's mechanically based norms. Moreover, the puzzle of distinguishing the man-made from the natural challenges the definitions that both patent doctrine and traditional science impose on the resulting organisms.4 As more biotechnological inventions mature into marketable products,5