The Relation of Patent Law and Wildlife Conservation Law in the United States
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The existence of U.S. patents issued on inventions made using wildlife specimens presents legal, economic, policy, and resource management questions. The relation of patent law to wildlife conservation law is central to answering these questions. Patent law is designed to foster technological advancement, and patents are economic instruments intended for market-related activities. Conversely, wildlife conservation law is generally intended to inhibit market forces, to regulate the possession and use of select wildlife populations, and to sustain this public resource. The existence of U.S. patents on inventions from wildlife reveals a practical connection among market value of innovation, property law, and wildlife resources. Answers to fundamental questions of law and policy this connection raises require an understanding of the relation of patent law to wildlife conservation law. This work analyzes this relationship. The premise of the analysis is that the bodies of patent and wildlife conservation law are orthogonal. That is, these bodies of law are entirely separate and do not interact, except at one critical point: possession of tangible specimens. The evaluation conducted here confirms that these two bodies of law have evolved in entirely separate domains, are essentially independent, and are mutually non-contingent. They do, however, intersect at the critical point of physical possession of wildlife specimens. Possession of physical property in wildlife specimens is necessary to make patentable inventions. Furthermore, possession is the critical pivot in governmental control of wildlife under conservation laws. This single-point intersection creates an orthogonal relationship between these bodies of law that has legal and policy implications. For example, at these physical property intersections, wildlife conservation law generally fails to control patent-related market forces. Moreover, valid patent rights may be obtained in spite of violations of wildlife law. The failure to control the patenting of inventions made through the possession of wildlife specimens produces natural resource policy and management problems, including a market failure in wildlife resource maintenance, a type of tragedy of the commons in the new resource of biotechnological utilities from wildlife, and a failure of the linkage between technological value of wildlife and its sustainable conservation.