Of Mice and Men: Why an Anticommons Has Not Emerged in the Biotechnological Realm

Chester J. Shiu, University of Texas at Austin

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Please note that previously posted versions were pre-publication copies. This is the final version of the article and was posted on May 4, 2009.

Abstract

In 1998 Michael Heller and Rebecca Eisenberg posited that excessive patenting of fundamental biomedical innovations might create a “tragedy of the anticommons.” A decade later, their dire predictions have not come to pass, an outcome which calls much of the legal scholarship on the topic into question. This Article proposes that legal commentators’ theoretical arguments have largely ignored two very important factors. First, the National Institutes of Health (NIH)—the single most important actor in the biomedical research industry—has played an active role in keeping the biomedical research domain open. In particular, regardless of what the current patent regime may theoretically permit, the NIH has, with great success, actively opposed the formation of a biomedical anticommons by exercising its dominant market power in the biomedical research arena. Thus, any reasonable assessment of biomedical innovation must account for both the current patent regime and the NIH’s proactive role, something that has not yet been attempted. Second, biomedical discoveries vary in their ability to affect downstream research. This Article undertakes a categorization of biomedical innovations into technically sensible groups and considers the anticommons potential for each. The net result of this categorization is that the majority of biomedical patents are very limited in how they can affect downstream research, and therefore their ability to contribute towards an anticommons thicket is minimal. In short, this Article advances two observations that help explain why a biomedical anticommons has not been observed: active opposition by the NIH and commentators’ misreading of the downstream blocking potential of many biomedical patents.