PrepTest 76, Section 4, Question 8

The following passage was adapted from a law journal article published in 1998.

Industries that use biotechnology are convinced that intellectual property protection should be allowable for discoveries that stem from research and have commercial potential. Biotechnology researchers in academic institutions increasingly share this view because of their reliance on research funding that is in part conditional on the patentability of their results. However, questions about the extent to which biotechnology patenting is hindering basic research have recently come to the fore, and the patenting and commercialization of biotechnology inventions are now the focus of increased scrutiny by scientists and policy makers.

The perceived threat to basic research relates to restrictions on access to research materials, such as genetic sequences, cell lines, and genetically altered animals. These restrictions are seen as arising either from enforcement of a patent right or through operation of a contractual agreement. Some researchers fear that patenting biological materials will result in the patent holder's attempting or threatening to enjoin further research through a legal action for patent infringement. In other instances, a patent holder or the owner of biological materials may refuse to make such materials available to scientists conducting basic research unless a costly materials-transfer agreement or license agreement is undertaken. For example, the holder of a patent on unique biological materials may want to receive a benefit or compensation for the costs invested in the creation of the material. Academic researchers who oppose biotechnology patents fear that corporate patent holders will charge prohibitively high fees for the right to conduct basic research involving the use of patented materials.

While it is true that the communal tradition of freely sharing research materials has shifted to a market model, it is also undoubtedly true that even in the early days of biotechnology, some researchers took measures to prevent competitors from gaining access to materials they had created. Scientists who resist the idea of patenting biotechnology seem to be confusing patent rights with control of access to biological materials. They mistakenly assume that granting a patent implies granting the right to deny access. In reality, whether a patent could or would be enforced against a researcher, particularly one conducting basic and noncommercial research, is questionable. First, patent litigation is an expensive endeavor and one usually initiated only to protect a market position occupied by the patent holder or an exclusive patent licensee. Second, there has been a tradition among judges deciding patent cases to respect a completely noncommercial research exception to patent infringement. Moreover, it is likely that patents will actually spur rather than hinder basic research, because patents provide scientists with a compelling incentive to innovate. Researchers know that patents bring economic rewards as well as a degree of licensing control over the use of their discoveries.

The following passage was adapted from a law journal article published in 1998.

Industries that use biotechnology are convinced that intellectual property protection should be allowable for discoveries that stem from research and have commercial potential. Biotechnology researchers in academic institutions increasingly share this view because of their reliance on research funding that is in part conditional on the patentability of their results. However, questions about the extent to which biotechnology patenting is hindering basic research have recently come to the fore, and the patenting and commercialization of biotechnology inventions are now the focus of increased scrutiny by scientists and policy makers.

The perceived threat to basic research relates to restrictions on access to research materials, such as genetic sequences, cell lines, and genetically altered animals. These restrictions are seen as arising either from enforcement of a patent right or through operation of a contractual agreement. Some researchers fear that patenting biological materials will result in the patent holder's attempting or threatening to enjoin further research through a legal action for patent infringement. In other instances, a patent holder or the owner of biological materials may refuse to make such materials available to scientists conducting basic research unless a costly materials-transfer agreement or license agreement is undertaken. For example, the holder of a patent on unique biological materials may want to receive a benefit or compensation for the costs invested in the creation of the material. Academic researchers who oppose biotechnology patents fear that corporate patent holders will charge prohibitively high fees for the right to conduct basic research involving the use of patented materials.

While it is true that the communal tradition of freely sharing research materials has shifted to a market model, it is also undoubtedly true that even in the early days of biotechnology, some researchers took measures to prevent competitors from gaining access to materials they had created. Scientists who resist the idea of patenting biotechnology seem to be confusing patent rights with control of access to biological materials. They mistakenly assume that granting a patent implies granting the right to deny access. In reality, whether a patent could or would be enforced against a researcher, particularly one conducting basic and noncommercial research, is questionable. First, patent litigation is an expensive endeavor and one usually initiated only to protect a market position occupied by the patent holder or an exclusive patent licensee. Second, there has been a tradition among judges deciding patent cases to respect a completely noncommercial research exception to patent infringement. Moreover, it is likely that patents will actually spur rather than hinder basic research, because patents provide scientists with a compelling incentive to innovate. Researchers know that patents bring economic rewards as well as a degree of licensing control over the use of their discoveries.