identified in the human genome project. Here, too, at least in the early days of the discussion, the issue was not that the prospect of a patent was needed to get the research work done; the research work was being funded by government. Rather, it was felt that patents on the coded gene fragments were needed if companies were to be induced to take that information and use it to achieve commercial products. That is, the arguments were those of the development and commercialization theory and perhaps the prospect-development theory.
As matters have turned out, the belief that codes for gene fragments will be patentable has led to the birth of private for-profit firms, whose business is to discover the codes, in anticipation of profiting from licensing to larger companies that would take on the development work. Interestingly, several large pharmaceutical companies have argued that gene fragments should not be patented, but rather that their identified codings should be in the public domain. Their case is that progress from coded gene fragments to useful final products will cost more if gene-fragment codes are patented than if they are in the public domain. They are essentially arguing that the standard version of the development and commercialization theory has it backwards. And several of these companies are supporting research to identify gene codes, on the condition that the information be put in the public domain. The public-policy issues here are very complex.
The issues surrounding Bayh-Dole and gene fragments differ in important ways but they also have important common elements and raise common questions. Perhaps the most basic question that they raise is whether the presence or prospect of patents stimulates or interferes with technical advance in a field. Obviously, it does not under the invention-inducement theory. But under a more complex theory, the answer is not always apparent. The appropriate domain of patents is badly in need of open examination today. The argument that strong intellectual property rights in a field can smother technical progress is, of course, connected to assumptions about several of the context conditions discussed earlier. To understand better whether our current patent policies help or hinder the achievement of our societal objectives, we need to examine those assumptions rigorously.
The following three questions are put forward as possible starting points for inquiry: In what fields of technology are technical advances so strongly connected to one another, either temporally or in a system of use, that effective inventing today requires access to prior inventions? What are the fields of inventing in which progress generally requires the effective interaction of a number of different organizations? Do patents in fact contribute to or hinder the access and cooperation needed for technical advance in such contexts? As indicated earlier, little empirical research has been aimed at this cluster of questions. Our lack of knowledge limits our ability to analyze intelligently the current pressing issues of patent reform.