A brief reply is in order to clarify our position on the patenting of research tools. We stand by the statement that "there are reasons to be wary of patents on research tools," but that statement should not be understood as a broad condemnation of patents on research tools in all contexts. Indeed, immediately after the cited language our opinion letter acknowledges that withholding patent protection from research tools could undermine private incentives to develop research tools and to make them available to investigators or lead to greater reliance on trade secrecy. Unlike the government, which purports to pursue patent rights for the purpose of facilitating technology transfer, private firms pursue patents in order to earn a return on investments in R&D that would otherwise be unprofitable. Thus, even in cases where patents do nothing to facilitate technology transfer, private firms may invoke justifications for their claims of proprietary rights in the results of research that they have paid for. These justifications have considerably less force when applied to the results of research paid for by the government. Nonetheless, we disagree with Dr. Chambers' statement that "[p]atents that cover research tools are no more dangerous than patents that cover any other aspect of human endeavor."
Eisenberg, Rebecca S., co-author. "Reply to Comments on the Patentability of Certain Inventions Associated with the Identification of Partial cDNA Sequences." R. P. Merges, co-author. AIPLA Q. J. 23, no. 1 (1995): 61-3.