A Comparative Institutional Analysis of Intellectual Property

F. Scott Kieff, associate professor of law

Biotech innovations pop up every day. From medicines developed by large companies to ingenious solutions worked out by individuals in university labs, new technologies are poised to enter the marketplace. The question is, are patents helping or hurting this process? “Patents are essential to bringing biotechnology innovations from everyone — not just well-funded corporations — to the people,” says F. Scott Kieff, J.D., associate professor of law at Washington University in St. Louis.

F. Scott Kieff
F. Scott Kieff

“Without patents, the biotech marketplace in basic science takes on the nature of something like an old boys’ club in which personal attributes such as fame, prestige, and even gender and race, govern what exchanges take place; and the addition of patents gives many more people a way to play in that game.”

Kieff presented the paper, “On the Comparative Institutional Economics of Intellectual Property in Biotechnology,” on Feb. 19 at the annual meeting of the American Association for the Advancement science, held Feb. 16-20 in St. Louis.

According to Kieff, getting inventions put to use as broadly and rapidly as possible requires many individuals to work with each other, and patent law stands as a beacon around which these individuals can coordinate.

“Adding patents to the field of basic bioscience increases the development of products that are ready for the marketplace even in the face of the real transaction costs of negotiation over patents – such as hiring lawyers, striking deals and enforcing them – precisely because those costs are still lower than the similar transaction costs of negotiating over the academic kudos – such as publications, promotions, and grants – that scientists otherwise trade when they don’t have patents,” he says.

Kieff notes that allowing legislators, agencies, or courts to break patents when deals over those patents somehow cannot be completed despite strong needs by those wanting a license “would inevitably let big players who are best able to finance and advertise their needs to totally shun efforts to bargain in the first place. Such an approach offered in the name of helping competition often instead helps keep out competition.”