Perusing property rights in DNA.

Many practical questions have arisen since the use of patents relating to DNA has become progressively more common after the landmark case of Diamond v. Chakrabarty in 1980: What ownership rights do patents confer? What is owned? Who owns it? What does ownership mean to nonoweners? The central theme of the chapter is that much of the debate about patent rights relating to DNA is needlessly burdened by concerns that are inapposite, given an informed understanding of how things actually work in this area; and that as a result, insufficient attention is paid to exploring propositions that might elucidate or even alleviate pertinent problems in need of solutions. The approach of the chapter is more analytical than prescriptive. It endeavors to unpack how property rights in this area actually operate and concludes by making a few modest prescriptions about areas for future study, including efforts to explore the mechanisms that might be at play when actual transactions in basic biological materials and protocols break down. The intuition behind the chapter is that although many of the problems identified by patent critics do exist and, in theory, might be pernicious in creating some inefficiency in the form of dead-weight loss, in practice these problems turn out to be less pernicious than those likely to be caused by alternative regimes and are mitigated through various behaviors of market participants.

How ordinary judges and juries decide the seemingly complex technological questions of patentability over the prior art.

Determinations of patentability over the prior art are often thought to raise questions that are so technologically complex that they require special training and judgment to answer, especially in fast-moving fields like modern biotechnology. This essay explores the somewhat counterintuitive argument that under the U.S. system they do not and should not. According to this view, determinations of patentability over the prior art are based entirely on factual inquiries that are best made by lay judges and juries, just like the factual determinations these people regularly make in any ordinary nonpatent trial. This is good because judges and juries are adept at these determinations, and because appellate courts are adept at reviewing them. It leads to a system that is cheaper overall in allowing private litigants to better predict outcomes that also better approximate the correct answer than would be possible under other regimes premised upon the expert technological knowledge and judgment of a decisionmaker.