The counterplan saves IPR regimes – not the other way around – tragedy of the anticommons proves

Congress will face a number of arguments if it creates sui generis protection for isolated bioproducts. Congress should prepare to address the argument that protecting isolated bioproducts degrades patent law because the purpose of the “product of nature” subject matter exclusion is to allow this material to remain in the public domain for all to access. Proponents of this view may argue that if the industry refuses to fund this research because of the lack of patent incentives, university researchers and the federal government will bridge any funding gap. There is a two-fold response to this argument.

The patent right is currently the most comprehensive intellectual property right and contains virtually no limitations for access to patented material during the patent term. Thus, the opportunity for an anticommons of knowledge to result from patenting upstream bioresearch is far greater due to: (1) the lack of public access to develop additional upstream bioproducts during the patent term; and (2) the heightened likelihood of market failures during the patent term, which inhibits downstream product development.230

To address access issues, the parapatent right could include a fair, or experimental, use limitation. Such a limitation would allow access to protected isolated bioproducts for developing new upstream products (e.g., creating new isolated bioproducts). A separate compulsory licensing provision would allow reasonably priced access for downstream product development (e.g., therapeutic devices using isolated bioproduct technology), thereby avoiding the “reach through” and “patent stacking” licensing problems.231 In reality, the compulsory licensing provisions would likely motivate parties to negotiate reasonable licenses in order to avoid the Parapatent Act’s compulsory licensing provisions.232 Under either scenario, this limitation would then provide an incentive to continue innovation and immediate public access to these essential basic research tools.