Enclosing the Genome: What the Squabbles over Genetic Patents Could Teach Us

Abstract

From p. 3: "In this chapter, however, I turn my attention to the other arguments over enclosure, the ones that economic historians and intellectual property scholars for that matter tend to note briefly and somewhat dismissively before turning their attention to the real meat of the economic incentives set up by property systems. My question, then, is not 'will licensing solve the potential monopolistic problems threatened by fundamental gene patents'? Or 'will this particular bit of surgery on the Bayh-Dole Act cure the incentive system so as to encourage fundamental research to yield real products while discouraging 'blocking patents' across the arteries of research?' Those questions are vital ones on which important work has already been done, some of it by my wonderful colleagues at Duke. But I want to ask a different question, one about the fundamental structure of intellectual property discourse. What can the debate over gene patents teach us about the structure of our discipline, about our pattern of inquiry? What does that debate reveal about the both the selective focus and the selective blindness in the way that intellectual property scholars analyze the question? In short, this article treats the debate over gene patents as a rhetorical case study, a place to reflect on the limits of our discipline. It does not attempt to enter that debate on one side or the other."