And - two additional internal links to innovation the aff can never resolve – a) progress gap and b) the anticommons

A. BACKGROUND As illustrated with the passing of the SCPA in the 1980s, Congress must explore sui generis intellectual property protection whenever a “progress gap” is created by attempting to protect new technology with existing intellectual property laws. The sui generis legislation will then bridge this gap and provide a set of exclusive rights for the new technology that creates an incentive to innovate while simultaneously enriching the public domain. One could question whether this evaluation is premature for isolated bioproducts since the PTO may allow the amended Thompson stem cell patent claims, and the Supreme Court may uphold the validity of the Myriad gene patents. This would eliminate, arguably, the need for sui generis legislation because isolated bioproducts would clearly fall within the scope of patent protection. Even if isolated bioproducts are patentable, however, the argument remains that they should be excluded from the Patent Act since patenting these upstream research tools creates an “anticommons” of knowledge, which impedes rather than promotes progress. Therefore, it is both timely and essential to explore an alternative propertization scheme for this material.

Professors Rebecca Eisenberg and Mark Heller, in their seminal article exploring how patenting basic research potentially deters innovation, assert that upstream biological research tools, such as isolated genes and stem cells, are misfits for patent law. They argue that they are misfits because the cognitive bias of patentees219 and potential licensees causes each to value upstream research tools differently. This inability to reach an effective “meeting of the minds” creates market failures for both basic licensing and “reach through”220 licensing agreements.221 Market failures and the multiple layers of patents obtained at the various stages of research (“patent stacking”) create intellectual property clearance problems, which delay the development of marketable downstream technology. Rather than having a “commons” of information created by effective licensing, we now have an “anticommons” where accessing knowledge becomes a Herculean task.222 Eisenberg and others posit that we must ensure that the privatization of these rights results in stimulating economic development and “the public goals of biomedical research.”223