IP Scholars conference, property spirals

Sabrina Safrin, Chain Reaction: How Property Begets Property. How did we get from Chakrabarty’s propertization of modified genetic material to extensive patenting of unmodified genetic material? The creation of property rights for some generates demand for different types of property rights for others in related spheres. The paper looks at (1) patents on naturally occurring genetic material, (2) sui generis regimes for traditional knowledge, and (3) the patent paradox where the amount of patenting has risen dramatically while patents’ expected value has diminished.

Explanations: (1) People who see others getting property rights will seek rights for themselves regardless of whether it’s really good for them or for society overall, following the social signal that propertization is the right thing to do. (2) Assertions of property rights can also alter prior cooperative norms, as with tissue donation used for patenting instead of just research. Continuing to share under those circumstances makes the good citizen into a sucker. (3) Defensive property-seeking, as with defensive patenting to enable firms to fend off lawsuits and enter into patent pools.

Implications: (1) We need to look beyond immediate consequences of granting property rights. Thousands of pages of briefs in Chakrabarty debated the issues, but not one mentioned the possibility of patenting unmodified genetic material. (2) This dynamic means less efficient and happy outcomes than Demsetzian theory suggests; the second wave of propertization has little efficiency justification and does not address tragedies of the commons – they’re reactive in nature: you put up a fence so I put up a fence. The overall scenario may be less efficient than the regime it replaces. Property rights are expensive to create and enforce.

For traditional knowledge, for example, the chain reaction thesis predicts that protection will not stay limited – it will return to protect Western knowledge; Portugal has already enacted laws to protect traditional Portuguese knowledge.

Sonia Katyal: If the world has already ratcheted up property rights, what alternatives do we have to reach the goal of distributive justice? Answer: Not really thinking about how to unring the bell, but to stop it from continuing to ring. Much care should be taken before we add new property rights or break down limits on existing rights. Maybe if we bring more into the public domain, generosity might beget generosity just as enclosure begets enclosure.

Comment: Is Chakrabarty what lets the genetic genie out of the bottle? If you can patent an extracted isolate from a natural, living body, the precedent is already there and has been since Pfizer in 1911.

Question: The future is inherently unforeseeable – you can’t see the consequences of refusing to adopt a property regime either. Answer: Fair point, but these changes have been short-sighted and have only assessed whether a change is good for a narrow band of society, without trying to predict what might happen overall.

Comment: Look at debate over sustainable development in environmental law – similar questions of intergenerational views of resources and how to get people to take the long view.

Question: Devil’s advocate: But isn’t property always better? Answer: For new innovations traditional witch doctors might come up with, property rights exist. But if it’s been around for hundreds of years, there’s no incentive benefit from propertization. Q: won’t the witch doctors transfer information to Western companies better if they have rights? A: The Western companies can pay for information transfer now.

Pam Samuelson: A sui generis database right didn’t succeed in the US in part because people feared chain reactions of property in data that would harm scientific information and news gathering. A: That may also have happened with surgical methods, which the AMA opposed patenting.

Unfortunately, because of the heightened airport security, I had to leave before the last presentation. The conference was a fabulous, intense experience, and I learned a lot. Kudos to the organizers.