Transformative (Bio)technologies in Knowledge Societies: Of Patents and Intellectual Commons

The year was 1931. In a line perhaps more suitable to science fiction writing at the time, Winston Churchill envisioned cell-based meats by declaring that: “[w]e shall escape the absurdity of growing a whole chicken in order to eat the breast or wing, by growing these parts separately under a suitable medium” (Churchill 1931). Arguably, a technology, and the products it produces, is only disruptive when it reaches the masses. Promoted as a more sustainable alternative to conventional proteins, research into cell-cultivation technology for human food consumption (cellular agriculture) has gained new urgency in response to pressing global challenges. In essence, these products are produced by tissue and bioprocess engineering that result in a product that is molecularly identical to conventional agricultural ones, like meat.

This chapter begins from the proposition that we currently lack an integrated understanding of the nature, causes and implications of regulatory shifts that appropriately deal with transformative biotechnologies in knowledge societies. With the aim of gaining a better understanding of ‘knowledge society’ epistemologies, this chapter explores the role of patents in cellular agriculture, a field of enquiry that uses cell-cultivation technology, as a case study to elucidate the extent to which IP rights can be deployed to generate optimal public welfare. Through a public interest lens, it also seeks to understand whether growing calls for open science can be aligned with the needs of a flourishing innovation ecosystem.

If legal systems have the ability to create parameters that will determine whether and to what extent societal change will happen, it stands to reason that the effectiveness of these legal systems will be directly correlated to the level of granularity with which they mirror social realities. In the same vein, the value of a patent, for example, will be determined by its terms of protection. Combining theoretical and doctrinal legal approaches along with insights from political and economic theories on regulation and governance, this chapter looks at some of the legal questions to illuminate how governments, regulators and stakeholders balance and meet the demands of pressing social challenges, such as climate change and food insecurity, with the benefits of transformative biotechnologies to create an intellectual commons. More specifically, this chapter argues that, in order to avoid ‘a tragedy of the intellectual commons’, intellectual property rights (IPR) demand to be governed by agile, responsive regulatory approaches. It does so by engaging with legal interpretations of terms of protection for patents, against a backdrop of rapidly evolving (bio)technologies that continue to test the resilience of current legal frameworks. It will also deliberate whether, as a result, IPR calibration with current public policy imperatives has gained renewed importance to ensure continued rewards for intellectual creation while promoting social progress.