Abstract

US law has until recently treated unmodified and merely “isolated” genes as a form of intellectual property. Patents protect processes, methods, manufactures, and compositions of matter. Legal theorists and intellectual property scholars have similarly weighed in on the patentability of genes, often uncritical of the strained lines of reasoning that made first “isolated and purified” products of nature patentable, or simply weighing the costs vs. benefits. In the early fifteenth century, the first robust institutionalized forms of intellectual property protection emerged in Europe. This chapter examines the theory of intellectual property implicit in its historical development and looks more closely at the question of whether genes belong to the general category “intellectual property.” The purpose of intellectual property law is to encourage innovation, to discourage secret‐keeping, and to move new knowledge into the public domain after a period of time.