The intersection between the fields of patent law and antitrust law has long been an area of controversy. One antitrust doctrine in particular is potentially important in the realm of synthetic genes: Under the essential facilities doctrine, a monopolist has a duty to provide competitors with reasonable access to 'essential facilities,' facilities under the monopolist's control and without which one cannot effectively compete in a given market. This note argues that the essential facilities doctrine should apply to synthetic gene patents; while the facts ultimately will determine the outcome of this particular case, the doctrine should be available to courts in order to create and maintain a thriving market for genetic traits having both innovation and consumer choice. Part I discusses the history and legal status of the "essential facilities" doctrine. Part II explores the applicability of the doctrine to patents, which remains in question. Finally, Part III argues that a patent on a synthetic gene should, under appropriate conditions, be considered an "essential facility" subject to compulsory licensing.
THE “ESSENTIAL FACILITIES” DOCTRINE IN THE SUNLIGHT: STACKING PATENTED GENETIC TRAITS IN AGRICULTURE JOSEPH M. PURCELL, JR.† INTRODUCTION Genetic engineering is fast becoming a major part of agriculture in the United States and abroad. Worldwide, some 300 million acres of farmland are planted with biotechnological crops, including more than 150 million acres in the United States.1 While genetic engineering has the potential to increase the quality and quantity of crops, some scientists have expressed health and environmental concerns about the use and
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