Race Specific Patents, Commercialization, and Intellectual Property Policy

Abstract

This Article examines the phenomenon of 'race specific patents,' defined as patented inventions for which the claims or the disclosure is written using racial categories. Motivated by the grant of a patent in 2002 to a hypertension drug designed for used by 'black patients,' as expressly stated in the patent claims, the study looks at race specific patents in several areas, including patents for pharmaceuticals, cosmetics, toys, and devices for determining personal identity. After cataloguing the over a thousand patents that were discovered, the author presents an analysis of the use of racial categories in patent law that focuses on both the normative bases for intellectual property and normative treatment of racial categories. Specifically, the Article juxtaposes an incentive theory, market theory, and cultural theory of intellectual property with liberal and critical theories of race to delineate six normative positions to guide the policy treatment of racial categories in patent law. The author advocates a critical cultural theory of patent law that would justify the use of racial categories if patent law is used to affirmatively empower subordinated groups. Applying this position to the patents catalogued in the first part of the paper, the author proposes three policy reforms for the treatment of racial categories in patent law: (1) the categorical exclusion of racial categories from patent claims: (2) the exclusion of race as a factor in the nonobviousness analysis; and (3) the affirmative use of race as a factor in the beneficial utility analysis.