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Biotechnology and the Utilitarian Argument for Patents*

Published online by Cambridge University Press:  13 January 2009

Michele Svatos
Michele Svatos
Affiliation:
Philosophy, Iowa State University
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Extract

Biotechnology surpasses even computer technology in predictions of its potential for revolutionary effects on humankind. It includes agribusiness (genetically engineered plants, animals, hormones, etc.) and phar-maceuticals (diagnostics, genetic therapies, etc.). The U.S. government began investing heavily in biotechnology research in the 1980s, and by 1987 had spent approximately $2.7 billion to support research and development (R and D), including $150 million for agricultural biotechnology. The approximately sixty U.S. biotechnology companies invested $3.2 billion in R and D in 1991 alone, with a total of more than $10 billion spent since the industry began in the late 1970s.

Type
Research Article
Information
Social Philosophy and Policy , Volume 13 , Issue 2 , Summer 1996 , pp. 113 - 144
Copyright
Copyright © Social Philosophy and Policy Foundation 1996

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References

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6 U.S. Constitution, section 8, para. 8.

7 Some authors make a distinction between the argument that patents encourage R and D, and the argument that they encourage an inventor to disclose her invention rather than keeping it secret. Since in either case the patent is seen as an inducement for the inventor to benefit society, I will consider them two different parts of a utilitarian argument.

8 J. S. Mill and Jeremy Bentham both argued for the patent system on grounds of distributive justice: it is only fair that the inventor receive a reward for his efforts, in proportion to the benefit he has given society. This seems to me to be closer to the argument that inventors have a natural right to their inventions. The argument that patents are justified as an incentive to inventors is more often identified as utilitarian, despite the positions of Mill and Bentham.

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62 One might worry about the established scientific community's resistance to really innovative ideas. This is already a topic of concern within the grant system. One proposed solution is to set aside money specifically for very new avenues of research which challenge established ideas, and in fact the NIH is now funding research on “alternative” medicine as a result of this concern. Moreover, even if the patent system were eliminated, the grant system might be combined with some other way(s) of encouraging innovation.

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64 The patent office, with a budget of $520 million in 1994, is entirely funded by its own income from patent applications; that money could, for example, be paid by companies to the FDA instead, to help fund the additional staff needed to speed up approvals. On the other hand, reducing the responsibilities of the FDA in approving new drugs would also speed the process and might (or might not) promote overall utility.

65 “Patently Outdated: Changes in the Way Drugs Are Invented Are Making Patents Unworkable,” The Economist, 07 18, 1987, pp. 17–18.

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70 Ibid., p. 572.

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72 shoes, Wooden, or sabotsGoogle Scholar, the French root of “saboteur.” There are various stories about this. According to one story, workers in the early Industrial Revolution threw their sabots into machinery to stop it, probably in a protest against mechanization. Another story has it that workers would saboter—work clumsily, clattering their wooden shoes as they walked.

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76 Lacy, , Bush, , and Cole, , “Biotechnology and Agricultural Cooperatives,” p. 80.Google Scholar The authors cite an anonymous personal interview.

77 And, if utility is to be defined in terms of preference-satisfaction, I assume that an individual's preferences are incompletely described by her actions in the economic realm.

78 See Fowler, Cary and Mooney, Pat, Shattering: Food, Politics, and the Loss of Genetic Diversity (Tucson: University of Arizona Press, 1990)Google Scholar; and Shand, Hope, “There Is a Conflict between Intellectual Property Rights and the Rights of Farmers in Developing Countries,” Journal of Agricultural and Environmental Ethics, vol. 4, no. 2 (1991).CrossRefGoogle Scholar

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83 Lacy, , Bush, , and Cole, , “Biotechnology and Agricultural Cooperatives,” p. 75.Google Scholar

84 Although I think that the patent system is unjustified on utilitarian grounds, I am not a utilitarian. I would favor a natural rights approach to justifying intellectual property. However, I suspect that such an approach might not justify the current American patent system, and it also might not justify the patenting of, e.g., genetically engineered life-forms.