Facilitating Scientific Research: Intellectual Property Rights and the Norms of Science - A Response to Rai and Eisenberg

Forum I. INTRODUCTION Arti Rai's article in the Fall 1999 issue of the Northwestern University Law Review explores the proper use of both legal rules and prescriptive norms to shape behavior in the basic biological research community., Rai's article builds upon the extensive work in this area by Rebecca Eisenberg, which first attained prominence through Eisenberg's article in the December 1987 issue of the Yale Law Journal.2 Eisenberg concludes that the use of patents in the area of basic biological research may frustrate central norms of the community.3 Rai prescribes concerted public and private action as the best tools for avoiding patents and the problems Eisenberg attributes to them.4 This Essay responds to patent critics like Rai and Eisenberg by showing how patents are essential for promoting the central norms of the basic biological research community. Rai begins her argument by painting a portrait of the basic biological research community before 1980 as a benchmark against which to measure the relative performance of that same community today. She analyzes the traditional prescriptive norms of the earlier community and argues that they "discouraged property rights in scientific invention and discovery."5 Against this benchmark, she criticizes the shift in the statutory and case law around 1980 that increased availability of patents in this community.6 According to Rai, this legal change triggered a cascade of selfish behavior among those in the community that caused a significant erosion of the community's central norms, replacing them instead with property interests.7 Rai then provides an economic analysis to justify her argument that patents should be avoided in this community.8 In the end, Rai recommends the creation and implementation of new laws and prescriptive norms to avoid patents and the problems they purportedly cause for the basic biological research community.9 There are several problems with Rai's argument. First, Rai mischaracterizes the pre-1980 basic biological research community. The community's norms did not discourage intellectual property before 1980, or thereafter. Furthermore, her portrait does not account for the pernicious, selfish behavior that existed in this highly competitive and stratified community before 1980 and that persists today. In addition, Rai misinterprets the operation and design of the patent system. The shift in applicable patent law that took place around 1980 brought the system in line with non-native legal theory and design. The shift marks a positive change because patents are essential for bringing needed resources to the community. This infusion of resources has two output-expanding effects on community performance. Some increased output is due simply to increased input. Some is due to improved efficiency. The added resources brought by patents can operate as important tools for overcoming the frustration of the community's prescriptive norms that would otherwise be caused by selfish behavior. Therefore, the use of patents in the basic biological research community should be encouraged. II. SETTING A PROPER BENCHMARK The norms of the basic biological research community that are the focus of arguments by patent critics like Rai and Eisenberg are termed "prescriptive norms," or "normative norms."10 These are "socially inculcated beliefs within the research science community about how scientists should behave, as opposed to descriptions of how they actually do behave."" These prescriptive norms of the basic biological research community closely track the traditional prescriptive norms of basic science as they are generally explored in the works of sociologists Barnard Barber, Warren Hagstrom, and Robert Merton.12 Eisenberg focuses on the following four interrelated prescriptive norms: universalism, communism, disinterestedness, and organized skepticism.13 Universalism means that the veracity of claimed scientific observations should be determined by universal criteria without regard to the particular attributes of the claimant, such as reputation, institutional affiliation, or nationality. …