The U.S. patent system, designed to protect rights to specific, marketable gadgets, has increasingly over the past few decades granted patents on comparatively abstract and amorphous ideas that stretch the system beyond recognition. Overly broad patents, and patents too far "upstream" from the marketplace, I argue, undermine the patent regime, hamper innovation, and prove exceedingly difficult to adjudicate. Using a series of conceptual and historical analogies, I attempt to assess the patenting of genes and other broad, "upstream" patents from a public policy context, emphasizing, as many are coming to realize, that things work best in the knowledge-based economy when what I describe as the "infostructure"—those seminal information assets needed by all players in a given high-tech sector to compete—are pooled and shared.
Upstream without a Paddle: Gene Patenting and the Protection of the "Infostructure",
Chi.-Kent L. Rev.
Available at: https://scholarship.kentlaw.iit.edu/cklawreview/vol84/iss1/5