Road Map to Revolution? Patent-Based Open Science

The contemporary approach to innovation in the life sciences relies on a patent-based proprietary model. Limitations on patent rights and business concerns often focus innovation to markets where the near-term monetary rewards are highest. This is “efficient” under an austere understanding of the term, but the proprietary model can be problematic from a practical perspective because it may not focus innovation to certain deserving markets. This Article contends that the property rights conferred by patent law may still serve as a positive base for innovation directed to underserved markets.

The comparatively strong rights conferred by patent law provide upstream or pioneering innovators the power to establish some of the environmental conditions in which subsequent innovation takes place. This includes a power to create an environment of relatively open access to rights, which in appropriate cases may foster efficiency gains, reduce innovation suppressive costs, and achieve production for ultimate consumers at closer to marginal cost. In several parts, this paper discusses the topography of law and innovation in the life sciences, the characteristics of innovation in the life sciences that may support the use of patents to impose an “open science” framework, a legal means of imposing such a framework using servitudes, and some of the legal and economic implications of using patents in this manner. This Article concludes that there are reasons why universities and research-oriented medical schools should sometimes favor this approach and that limited testing should be performed to determine the efficacy of the approach.