Vol. 13 No. 11 (November 2003)
INTELLECTUAL PROPERTY RIGHTS AND THE LIFE SCIENCE
INDUSTRIES: A TWENTIETH CENTURY HISTORY by
Graham Dutfield. Burlington,
VT: Ashgate Publishing Company, 2003.
288 pp. ISBN 0-7546-2111-1
Reviewed by Ann Bartow, University of South Carolina
School of Law, University of South Carolina.
E-mail: Bartow@law.sc.edu
The stated purpose of this book is to describe “the transformation
of IP rights” that has lead to “enhanced protection of the fruits of life
science research and development,” in part by evaluating both the role
that “big business” has played in influencing IP regulation in the life
sciences, and “the strategies that are used to mediate this influence”
(p.6).
Well written, well organized and well edited, this book
helpfully begins with an interesting and effective discussion of the purpose
and structure of this work of scholarship, stating:
It is convenient
for some to believe (or at least to argue) that IP rights are created
and amended to solve new problems created by technological developments
that mean existing systems need reform, replacement or the addition of
new IP categories. But there
is every reason to doubt that policy makers have ever been able to shape
and reshape such powerful economic rights in a dispassionate, informed
and objective manner even when they have wanted to.
After all, the full economic effects of a particular IP structure
are difficult if not impossible to predict, and powerful economic actors
are bound to take a keen interest in the decisions of these policy makers
when there is so much at stake, and to seek to influence change. In addition, the complex and technical nature of IP regulation
means that policy makers must depend on outside experts. These are likely to be practitioners with
their own agendas and biases (p.9).
The author posits that advances in organic chemistry
in several Western European nations in the late nineteenth century lead
to the development of patent laws and patent systems in these counties. Firms set up to develop synthetic dyestuffs
derived from coal tar, Dutfield asserts, marked the appearance of corporate
research laboratories and a decline in the importance of individual inventors
and small inventive firms. Reflecting
upon the historical relationship between intellectual property and the
commercial life sciences, it is argued, will enhance understanding of
the political economy of current patent systems.
The book’s first two chapters focus on articulating the
global importance of intellectual property rights, describe these rights
as a field of economic regulation, and locate the iterated rights within
“a number of currents within economic regulation theory,” ultimately choosing
“new institutionalism” as the preferred analytic approach. The third chapter briefly describes the historical development
of the patent law from the 1880s through the present in the United States
and Western Europe, focusing primarily on Great Britain, France and Germany.
The next few chapters discuss the impact of various industries
on the evolution of patent law. Chapter Four covers “Organic Chemistry
and the Synthetic Dyestuff Industry;” Chapter Five discusses “The Pharmaceutical
Industry;” Chapter Six focuses on “a set of technologies used by several
industries that are collectively referred to as biotechnology” and is
denominated “Biotechnology, Genomics and the New Life Science Corporations;”
and Chapter Seven is entitled, “Plant Breeding, the Seed Industry and
Plant Breeders’ Rights.” Chapter Eight is called “Towards a Global
IP Regime: Trade and Diplomacy;” Chapter Nine discusses “Forums of Resistance;”
and finally, Chapter Ten offers an “Epilogue: the Life Science Industry
in a Patent-free World.” There
are endnotes at the terminus of each chapter, and Chapter Ten is conveniently
followed by a detailed Bibliography, Name Index, and Subject Index.
In Chapter Two, the author describes the “new institutionalism”
approach he adopts as both analytical and normative (p.34).
It utilizes a body of economic scholarship that treats property
rights as state-regulated institutions, the structures of which impact
both rights holders and the economy as a whole.
It also offers several analyses concerning the formation, constituencies
and influence of interest groups.
Dutfield favors new institutionalism for its treatment of property
rights as state defined and state allocated, constantly affecting the
opportunity sets of other actors. He identifies interest groups in the patent
context, and astutely notes that because owners of patents often require
access to the intellectual property of others, strong IP rights bring
costs as well as benefits to many firms.
Though the wider public has a stake in the design and operation
of patent systems, he observes that consumer groups have not been much
involved in the shaping of IP law or policy.
He concludes that the new institutionalist approach leads to the
following assumptions: national
patent systems will reflect the interests of large, powerful and well-organized
groups; patent rights will be expanded and strengthened “if this enables
powerful groups that already have a foothold in relevant regulatory spaces
to further entrench their economic dominance” (p.44); and that this will
disadvantage other groups and possible consumers. These systems are then globalized through agreements such as
trade-related aspects of intellectual property rights (TRIPS), when developed
countries use strategies involving “power, propaganda and forum shifting”
to coerce less industrialized countries into adopting patent regimes that
actually run counter to their development interests.
In Chapter Three, Dutfield gives an excellent generalized
account of “The Emergence of Modern Patent Law” from 1883 until the present
in select countries in Western Europe, and in the United States. He synthesizes developments in industrialization
and trade policies with the evolution of patent laws in an exceedingly
interesting and coherent manner, with an appropriate emphasis on multilateral
treaties. In Chapter Four, he focuses specifically on the synthetic dyestuff
industry, primarily in Germany, Switzerland, France and Great Britain.
He ties developments within each nation’s dyestuff sector to the
evolution of its patent laws, noting that the industry had a powerful
role in driving and shaping the legislation, and concludes that designing
patent laws for strategic purposes did have the effect of stimulating
economic development in some cases. However, the rights given patent holders
were comparatively weak as measured against modern patent protections,
and favored the interests of domestic inventors and technology importers
in ways that TRIPS expressly forbids.
Chapter Five focuses on the evolution of the pharmaceutical
industries of several nations, and provides an eye-opening explanation
of the historical tensions between developing medicines that were effective
from a health perspective and developing therapeutic products that were
effective from a profit maximization perspective.
Patent laws, it is argued, have long disincentivized research involving
naturally occurring compounds, and discouraged research that might lead
to the refinement of medicines developed and owned by others. Additionally, due to safety concerns and
market forces, “lifestyle drugs” addressing more cosmetic issues such
as baldness and skin appearance have as a general matter become more profitable
than drug treatments that potentially save lives. Players in the pharmaceutical industry have been effective
in reforming patent laws in ways that favor specific, targeted interests,
often on an almost case-by-case basis rather than by following any overarching
philosophy or plan. In consequence, the pertinent patent systems were
found to enable certain pharmaceutical companies to reap great profits,
but they did not necessarily improve the health of members of the relevant
populace in the process.
Chapter Six contains a description of the founding and
composition of what is popularly known as the biotechnology industry,
from the discovery of DNA through the Human Genome Project and gene patenting. This provides foundations for a discussion
of the impact of patent laws on scientific innovation in this context.
The United States is credited with pioneering “both the commercialization
of biotechnology applications and products and the development of patent
law to protect them” (p.154). Dating
from the U.S. Supreme Court’s decision to allow a microorganism to be
patented in DIAMOND v. CHAKRABARTY, Dutfield charts numerous examples
of the biotechnology industry to clarify and change patent rules in ways
that suited the interest of specific biotechnology companies, often in
ways that discouraged later innovation by potential competitors.
He then highlights three developments he believes should be of
concern to policy makers: The
fact that “a disproportionately large quantity of patents is being granted
in relation to the number of commercial products based on them” (p.166);
the fact that the scope of a patent can be drawn so broadly as “to cover
a range of possible products including many unforeseen by the applicant”
(p.166); and the consolidation of “biotech-related patent ownership in
the hands of a small number of very large companies” (p.170).
Dutfield concludes this section by ominously observing that the
European biotechnology companies have persuaded the European Commission
that, if Europe is to catch up with the United States biotech industry,
adoption of United States style patent protections will be necessary.
Chapter Seven provides an overview of the intersection
between plant breeding, the seed industry, and intellectual property protections.
Dutfield’s thesis is that patent laws would have had to be severely
stretched to accommodate the demands of plant breeders, so a separate
IP system was developed instead. He describes the formulation of the International
Union for the Protection of New Varieties of Plants (UPOV) Convention,
its subsequent application in protecting Plant Breeders’ Rights (PBRs),
and its continuing usage and vitality.
Chapter Eight evaluates the complex roles trade and diplomacy
are playing in the movement toward a global intellectual property regime.
Dutfield describes “the process by which groups favouring strong
international IP protection came to define the problem as being trade-related
and saw GATT negotiations as the key to a solution” (p.197). He asserts
that the United States government “became an aggressive promoter of high-level
IP regulatory standards” and theorizes about reasons the United States
was able to so effectively pressure other countries to sign onto TRIPS
even though it went against their domestic interests.
Chapter Nine outlines signs of backlash against strengthening
intellectual property protections, highlighting a few specific examples
in which resistance has been successful. Aspects of the Convention on Biological Diversity are discussed,
as is the FAO International Treaty on Plant Genetic Resources for Food
and Agriculture. WIPO and
the WTO are also considered, not as forums of resistance at present, but
as having the potential to evolve into them in the future. Finally, Chapter Ten is a short epilogue asking the reader
to consider whether and how the life science industries might have evolved
differently in the absence of patent protections.
Dutfield’s book is interesting, balanced, and highly
informative. It displays
an excellent grasp of wide ranging topical literature, and reminds the
reader how important it is to study and learn from history. I close this
review with a ringing endorsement of the author’s own words: “It is clearly important to know if the shaping and reshaping
over time have tended to serve private economic interests at the expense
of the public. But whether
such subversion of the IP regime is the norm, the exception, or even a
falsehood put about by conspiracy theorists, the findings of this book
should be useful both for those making policy and for those who seek to
understand how policy is made. At
the very least the book is likely to make a strong case that the onus
should be placed on those promoting changes to IP regimes to explain to
the public how they will benefit” (p.10).
CASE REFERENCE:
DIAMOND v. CHAKRABARTY, 447 U.S. 303 (1980).
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Copyright 2003 by the author, Ann Bartow.