The Terminator Patent and its Discontents : Rethinking the Normative Deficit in Utility Test of Modern Patent Law

Arguably, no other biotechnological invention has been excoriated with so much confused rhetoric on “utility” as the invention relating to Genetic Use Restriction Technologies (“GURTs”) patented in the United States, Canada, Australia, Belgium, Bulgaria, Denmark and many other countries. Otherwise known by their rather inflammatory nickname of both “terminator patents,” GURTs have become the litening rod for both technophiles and Luddites. At the heart of the controversy is a misunderstanding of the changed meaning of the concept of utility in patent law. This paper argues that while the public understanding of utility as social usefulness is well grounded in history of patent law, modern development in the jurisprudence of utility has not been stagnant. To the contrary, utility in patent has moved from puritanical notions to its current articulation as the ability of an invention to do what it promises to do as per the disclosure filed with the patent office. In other words, the test of utility is no longer anchored on whether the alleged invention is socially useful or ethically permissible. Rather, the overriding criterion in modern patent law is whether the alleged invention performs or fulfills what it predicts to do as per its disclosure. In order to appreciate this shift, it has to be born in mind that across the centuries, courts in various jurisdictions have evolved in their conception of what utility means in patent law. From an original focus on social usefulness with a puritanical slant, utility has moved to a struggle between social usefulness and mechanical operability and now to mechanical predictability. Consequently, this paper argues that a fundamental misconception on the recent criticisms against the utility or otherwise of “terminator” technologies is that utility is mistaken for its original notion of social usefulness. The present reality is that utility of inventions has weaned itself from the high-minded impulses of the Venetian patent system and the British Statute of Monopolies