was that the best way to assure full utilization of publicly-sponsored research results for the public good was to make them freely available to the public. Today, federal policy reflects the opposite assumption. The current belief is that if research results are made widely available to anyone who wants them, they will languish in government and university archives, unable to generate commercial interest in picking up where the government leaves off and using the results to develop commercial products. To make government-sponsored research discoveries attractive candidates for commercial development, institutions performing the research are encouraged to obtain patents and to offer licenses to the private sector. As a result, institutions that perform fundamental research have an incentive to patent the sorts of early stage discoveries that in an earlier era would have been dedicated to the public domain. A big part of the resulting increase in patenting activity among public sector research institutions has been in the life sciences.
Taken together, these factors have created a research environment in which early stage discoveries are increasingly likely to be patented, and access to patented discoveries is increasingly likely to be significant to the ongoing work of research laboratories.
In order to assess the significance of these developments, it is necessary to understand something about patents and their relationship to other forms of intellectual property protection. The term intellectual property is used to refer to a wide range of rights associated with inventions, discoveries, writings, product designs, and other creative works. Some of these rights, such as patents, have more of the attributes of property than others, such as trade secrets. Some of these rights, such as patents, are protected under federal law, while others, such as trade secrets, are a matter of state law. A patent confers a right to exclude anyone else from using an invention, even an innocent infringer who independently develops the same invention without any knowledge of the patent holder's rights. Trade secrets, in contrast, receive more limited protection and may not be enforced against innocent infringers. Although trade secret rights are weaker than patent rights, the availability of legal protection for trade secrets under state law provides an alternative to protection that some inventors might choose in situations where patent protection is unavailable. One therefore cannot assume that withholding patent protection from research tools will improve their availability. Given commercial interest in the development and dissemination of research tools, in the absence of patent protection, firms may be more likely to resort to trade secrecy than to dedicate their research tools to the public domain, which could aggravate the problem rather than resolve it.
Trade secrecy is one way to keep inventions and discoveries out of the hands