James Boyle has long encouraged his peers to think outside the usual boundaries of intellectual property scholarship and practice for progress towards solutions to IP problems thrown up by the World we know today. A nice example is in his paper on Enclosing the Genome.
"For a second analogy, consider the justice claims that have recently caused ‘access to essential medicines’ to become a fundamental part of drug patent policy both domestically and internationally. Again, these are a set of issues that fit poorly within conventional intellectual property scholarship; but the arguments are not mere exhortations to take drugs away from companies and hand them over the poor and the sick. The essential medicine questions are not simple, either economically or institutionally and – after some initial reticence – the academy now seems to be turning its eyes to the complicated points of treaty interpretation, regional institutional design, international price discrimination, and alternative patent regimes that this particular and real moment of human suffering forces us to think about. Can we really believe that our scholarly focus will be somehow weaker as a result of the forced encounter with claims of distributive justice and human rights? In fact, with any luck, the intensity of feeling about a particular controversy over
AIDS drugs may actually force us to acknowledge the single greatest weakness behind a patent driven drug development policy; a patent driven system for drug development will, if working correctly, deliver drugs on which there is a high social valuation – measured in this case by ability and willingness to pay. To put it another way, to have a patent-driven drug policy is to choose to deliver lots of drugs that deal with male-pattern baldness, but also with real and important diseases: rheumatoid arthritis, various cancers and heart disease. It is to choose not to have a system that delivers drugs for tropical diseases, or indeed for any disease which is suffered overwhelmingly by the national or global poor.
To say this is not to condemn drug patents; it is rather, to suggest precisely the two lines of inquiry I argued for in this article. First, if our goal is truly to help to eliminate human suffering, then we should spend more time thinking about alternative and supplementary ways of encouraging pharmaceutical innovation beyond the drug patent system. Second, when we talk about innovation and progress in the intellectual property system, we quickly and easily substitute some universal
imagined ideal of Progress for the actual specific version of “progress” towards which our current distribution of entitlements and rights will push us. Many policies that might seem justified by the promotion of large “P” progress, might seem more questionable if they were instead pushing us towards the specific vision of progress held latently within the pattern of demand established by our current distribution of rights and wealth. To quote Amartya Sen, “there are plenty of Pareto optimal
societies which would be perfectly horrible places to live.”34 Now if these lessons can be taught us in a concrete and unforgettable way by the debate over drug patents, is there any reason to believe that the larger debate over gene patents will offer us any less insight, or any less provocation? It could be, of course, that the end result would be exactly the same; perhaps all of us would find our conclusions unchanged, even if we were a little more critical about worshiping at the church of innovation, even if we clarified our definitions of that concept and of the notion of efficiency that underpins it, even if we broadened our scholarly focus to include the
kind of institutional and environmentalist inquiries I suggest here, and made our discussion of commodification a little more similar to that which occurs in conventional property scholarship.
Perhaps this change in methodology would leave our substantive positions unchanged, though I doubt it.. Perhaps its effects would only be found in other areas, such as the essential medicines question, or the question of the goals of basic science policy, or the question of the redesign of the institutional framework through which intellectual property policy is made. But even if all that were true, the gene patenting debate could still teach intellectual property scholars a set of lessons we sorely need. At least, that is, if we have the courage to enter it."