252 • Alternatives to Animal Use in Research, Testing, and Education 
PROTECTING PROPRIETARY INTERESTS 
In commercializing a particular product, animal 
use may be limited to toxicity testing, but many 
products rely on animals in the initial research 
phase as well. These research and testing results 
have proprietary value that is sometimes protected 
by secrecy, other times by obtaining a patent. The 
value of data that lead to a particular product may 
depend more on the size of the market and its prof- 
itability than on the cost of obtaining them, par- 
ticularly when it takes a long time to generate the 
data. 
Cooperative Research and Testing 
Two major competing factors influence the 
sharing of research and testing costs— the desire 
to keep information that has proprietary value 
secret and the desire to share the very large ex- 
penses that may be involved in generating it. 
These business decisions are only slightly influ- 
enced by Government policies. Another factor is 
antitrust law, however, which is greatly affected 
by such policies. 
In considering the role of antitrust law, it is im- 
portant to recognize that the results of research 
and testing enable society to use resources effi- 
ciently. Antitrust laws help ensure that these 
efficiencies benefit consumers, by preventing 
manufacturers, for example, from colluding to 
maintain high prices. However, these statutes 
have sometimes been applied in a way that im- 
pedes technological development (3) by making 
it difficult for companies to pool resources for 
research so expensive that none would undertake 
it alone. 
In recent years, antitrust policies have been 
changed or clarified so that resources can be 
pooled more easily (19). One component of this 
is the National Cooperative Research Act of 1984 
(Public Law 98-462). The Sherman and Clayton 
antitrust acts still apply, but damages in private 
suits are reduced from three times the value of 
the unfair advantage to the actual value. This will 
certainly lower the risks involved in collaborat- 
ing, and probably the likelihood of being sued as 
well. 
Testing costs can be most equitably shared if 
potential participants can interact before testing 
begins rather than after it is completed, because 
a party who has already tested may have an un- 
fair advantage (or disadvantage) in negotiating 
compensation. It is easiest to identify potential 
sponsors for a particular chemical when testing 
is required by a regulatory agency, because it is 
known that testing will take place and who is re- 
quired to test. When industry forms testing con- 
sortia to share costs, it is most easily done through 
existing trade associations, such as the Chemical 
Manufacturers Association. Cooperative testing 
is also conducted by industry through the Chem- 
ical Industry Institute of Toxicology. 
Many testing consortia have been put together 
to negotiate agreements in anticipation of re- 
quired testing under Section 4 of the Toxic Sub- 
stances Control Act. Such negotiations were ruled 
invalid in a recent case (21). Despite this ruling, 
testing consortia will continue to have appeal so 
long as testing is expensive and the results have 
little or no proprietary value other than in ful- 
fillment of regulatory requirements. 
Toxicity Testing Data 
Many companies begin making other financial 
commitments to the commercialization of a prod- 
uct before testing is completed. Plant design and 
small-scale production may coincide with long- 
term toxicity testing. The practical costs of ful- 
filling lengthy testing requirements may greatly 
exceed the costs of testing. Thus, it is advanta- 
geous to be able to use any existing data gener- 
ated by another laboratory in order to avoid the 
delays and uncertainties of testing. Conversely, 
this provides an incentive to prevent data from 
being made available to competitors. 
The protection of pesticide testing data has been 
the subject of much litigation and several amend- 
ments to the Federal Insecticide, Fungicide, and 
Rodenticide Act (FIFRA). The most recent changes 
provide that data submitted after September 30, 
1978, are protected from uncompensated use for 
15 years. There are two kinds of protection. One 
