Ch. 12 — Patenting Living Organisms • 249 
suits of rDM.-X research are not being published 
while patent applications ai'e pending, discus- 
j sion at scientific meetings is being curtailed, and 
no\el organisms are less likely to he freely ex- 
changed. A related concern is that scientific 
papers may not he citing the work of other' sci- 
entists to a\oid casting doubt on the noxeltv or 
im enti\ eness of the author’s wor k, should he 
decide to apply for a patent. Finally, there is 
concern that the gi’anting of patents on basic 
scientific pr ocesses used in the r'esear'ch lahor'a- 
tor'v will dir'ectly impede basic r'esear'ch— e.g., 
two scientists ha\e r-ecently been gr'anted a pat- 
ent on the most fundamental process of molec- 
ular genetic technologv— the transfer of a gene 
in a plasmid using rDNA techniques. The pat- 
ent has been tt'ansferr'ed to the uni\ersities 
wher'e they did their work— Stanford and the 
University of California at San Fr'ancisco (L’CSF). 
Although both univer'sities have stated they 
would grant low-r'oyalty licenses to anyone who 
complied with the National Institutes of Health 
(NIH) Guidelines, subsequent owners of fun- 
damental process patents may not be so 
altruistic. 
Thet'e ar'e sever'al r'easons for beliex ing that 
these concerns, although genirinely held, ar'e 
somewhat overstated. Fir'st, patents on funda- 
mental scientific processes or organisms should 
not directly hinder research. The courts ha\e 
interpi'eted patent coverage as not applying to 
r'esearch; in other words, the patent co\ ers only 
the commercial use of the invention. Also, it 
would be difficult and prohibitively expensive 
for a patent holder to bring irifringement ac- 
tions against a large number of geograpbically 
separated scientists. Second, patents ultimately 
result in full disclosure. If patents were not 
available, trade secrecy could be relied on, with 
tbe result that important information might 
never become publicly available. Third, al- 
though delays occur while a patent application 
is pending, they often happen anyw'ay while ex- 
periments are being conducted or w'hile articles 
“L'.S. Patent No. 4,237,224, issued Dec. 2, 1980. 
“Xaz Manufacturing Co. v. Chesebrough-Ponds, Inc., 211 F. Supp. 
815 (S.D.X.V. 1962) (dictum), affirmed 317 F.2d 679 (2d Cir. 1963); 
Chesterfield United States, 159 F. Supp. 371 (Ct. Cl. 1958): Dugan 
V. Lear Avia, 55 F. Supp. 223 (S.D.X.V . 1944) (dictum): Akro Agate 
Co. V. .Master ,\larble Co., 18 F. Supp. 305 (X'.D.W'.Va. 1937). 
are being prepared for publication because of 
the competitive nature of modern science. 
Fssentially, the issue is the effect of the com- 
mercialization of research results on the re- 
search process itself. Even if patents w'ere not 
available for biological inventions, tbe inventor 
would simply keep his results secret if he were 
interested in commercialization. V'iewed from 
this perspective, it is difficult to see why the 
availability of patents should affect the ex- 
change of scientific information in genetic re- 
search any more than it does in any other field 
of research with commercial potential. The 
Chakrabarty decision may inhibit the dissemina- 
tion of information only if it creates an atmos- 
phere that stimulates academic scientists to 
commercialize their findings. However, if it en- 
courages them to rely on patents rather than on 
trade secrets, it will ultimately enhance the 
dissemination of information. 
Impacts of the Court's decision on 
genetic diversity and the food supply 
Some public interest groups have claimed 
that patenting genetically modified organisms 
will adversely affect genetic diversity and the 
food supply. The claim is based on an analogy to 
a situation alleged to exist for plants. Briefly, the 
groups claim that patenting micro-organisms 
will irrevocably lead to patents on animals, 
which will have the same deleterious effects on 
the animal gene pool and the livestock industry 
as the tvv'O plant protection Acts have had on the 
plant gene pool and the plant breeding industry. 
The alleged effects are: loss of germplasm re- 
sources as a result of the elimination of thou- 
sands of varieties of plants; the increased risk of 
widespread crop damage from pests and dis- 
eases because of the genetic uniformity result- 
ing from using a single variety; and the increas- 
ing concentration of control of the world’s food 
supply in a few multinational corporations 
through their control of plant breeding com- 
panies.^'* 
Only limited evidence is available, but no con- 
clusive connection has been demonstrated be- 
^‘Brief for the People.s' Business Commission as Amicus Curiae, 
pp. 6-13, Diamond v. Chakrabarty, 100 S. Ct. 2204 (1980). 
