Combinatorial Mathematics and the Problem of Early-Stage Patents in Biotechnology

11 Pages Posted: 27 Jan 2007

See all articles by Jay Dratler

Jay Dratler

University of Akron - School of Law

Date Written: January 2007

Abstract

This short paper analyzes deal making as a solution to the problem of blockage posed by early-stage patents in biotechnology. It begins with the notion---suggested by current research in the field---that solving important problems in human and animal health, such as curing or preventing cancer, will require a significant number of "pieces of the puzzle." Each of those pieces (for example, understanding the function and operation of a particular gene, gene segment, genetic "switch," protein expression mechanism, protein folding mechanism, etc.), might be eligible for a separate patent under current law if the subject-matter and utility requirements for patenting are broadly construed.

This paper reasons that deal making with or among owners of these separate patents must occur ex ante, i.e., before the particular number, identity and combination of pieces of the puzzle that provide a useful solution are known; otherwise, the effect of the multilateral monopolies created by patents on all the pieces makes it impossible to reach agreement or to properly apportion profits based on the pieces' relative importance to the solution. As the number of distinct pieces increases, however, the number of deals that must be made ex ante increases in accordance with combinatorial mathematics, that is, much faster than geometrically. For the numbers of pieces represented by the series (3, 4, 5, 6 . . . 50), for example, the numbers of required deals is (4, 11, 26, 57 . . . m), where m is a number greater than a million billion. If each distinct deal for fifty pieces took one hour to negotiate, making the necessary deals would consume more time than the age of the Universe since the Big Bang and 20,000 times more money than the U.S. national debt. This analysis suggests that deal making is not a realistic solution to the problem of blockage posed by early-stage patents in biotechnology.

Keywords: patents, early-stage, blockage, blocking, bilateral monopoly, multilateral monopoly, combinatorial mathematics, deal making, patent policy

JEL Classification: K20, L12, L43, O31, O32, O33, O34, O38

Suggested Citation

Dratler, Jay, Combinatorial Mathematics and the Problem of Early-Stage Patents in Biotechnology (January 2007). U of Akron Legal Studies Research Paper No. 07-02, Available at SSRN: https://ssrn.com/abstract=959462 or http://dx.doi.org/10.2139/ssrn.959462

Jay Dratler (Contact Author)

University of Akron - School of Law ( email )

150 University Ave.
Akron, OH 44325-2901
United States

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