The possibilities of a regulatory approach to answer the question: Should genetic inventions be patentable?

摘要

The debate over the patentability of genetic inventions is fraught and, to a large extent, bound up in the question of “what is patentable subject-matter?” This article argues that what is lacking in the debate is an adequate and appropriate understanding of how patent legislation operates as a regulatory instrument. To do adopt such an approach requires an expansive understanding of “regulation”; and, as the patent legislation has as a focus, the intention of attempting to control or influence the behaviour of others, the Act falls within a wide definition of regulation. This article does not prescribe reforms based on this regulatory approach (there is not the space); it does, nonetheless, discuss a number of benefits that arise from the adoption of the approach – including the linking of the limits of patentability to the (explicit) purposes of the system; and the suggestion that the better regulation of inventors and commercialisers of inventions can only be achieved when the norms established by the legislation are tied to the reasons for the norms.