Regulating Scientific Research: Intellectual Property Rights and the Norms of Science

Abstract

This article employs the burgeoning literature on law-and-norms theory to take a fresh look at the debate over patent rights in basic scientific research. After reviewing how the issue of patent rights in this research implicates not only intellectual property law but also research norms, it argues that patent policy has been insufficiently sensitive to contexts in which the central instrumental goals of patent law -- creation, disclosure, and development -- would be maximized not through stronger property rights but through norms that emphasize the public domain. Equally important, because of the relative imprecision of the law; the difficulty it often has in dealing with rapid technological change; and the poor access that legal actors often have to relevant technological information, formulating laws that reinforce and reflect efficient norms may be a better way of achieving creation, disclosure, and devlopment than the alternative of strictly legal change.