Toward a New Era of Intellectual Property: From Confrontation to Negotiation
Richard Gold, Associate Professor
Une pensée d’avance – Think Ahead Continuing Education Conference Series29 October 2009 – Intellectual Property: A new Law of Property?
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OUTLINE
IP assumptions Pressures on biotech innovation Building understanding of the role of IP in
innovation Six areas to watch Conclusion
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IP ASSUMPTIONS
Some of the traditional argumentsin support of the importance of IP Patents are the golden goose of innovation: they
are essential to continued investment Patents elicit disclosure of innovation Patents provides an essential incentive to
conduct research Strong IP rights are essential to preserve jobs
and industry
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IP ASSUMPTIONS
Some of the traditional arguments against the use of IP People invent and create without IP so we don’t
need it Patents lead to delays in disclosure Patents block useful research Strong limitations on IP rights are essential to
deliver needed drugs and technology
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But are these tropes just tripe?
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PRESSURES
The modern biotechnology industry is about to enter its 30s but has yet to make a profit
The high expectations of personalised medicine, new foods and environmental technology promised in the 1990s have not materialised
The world’s medicine cabinet is emptying as the pipeline of new biomedicines is drying up
The fastest growing element of health budgets is pharmaceutical products
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PRESSURES
The costs of biomedical research and development have increased as the easy to find medicines have been found and regulatory standards rise
Multiple, overlapping research projects aimed at the same new receptors, leading to multiplication of costs
Universities, under pressure to engage in technology transfer, rely on patents over early-stage, highly uncertain innovations
Continued failure to supply medicines to the world’s poor in a form that meets their health needs
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UNDERSTANDING IP IN INNOVATION
IP is a critical component of the troubled biotechnology innovation environment
Our understanding of IP is based on fractured evidence and just-so stories about the effect of these rights
Evidence is not only often anecdotal but based on the perceptions of those with a stake in the truth of the stories they tell
Economics has yet to provide an adequate framework through which to analyse IP
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UNDERSTANDING IP IN INNOVATION
An alternative framework is needed that combines theory from a variety of fields and matches these with empirical evidence
This framework must address three intertwining elements of the IP system: Law (statutory, jurisprudential and
administrative) Practices (universities, industry, government and
institutional) Institutions (patent offices, courts, industry
lobbying groups, universities)
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RESEARCH REPORT
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www.theinnovationpartnership.org
SIX AREAS TO WATCH
Building trust Better communication Creating new models of collaboration Building and maintaining scientific
infrastructures Developing new analytical tools Data and metrics
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TRUST
The lack of trust between actors undermines the ability to deploy patents so as to increase innovation and distribution Patents seem to entrench rather than overcome
distrust
Lack of trust as much a factor in boardrooms as in Geneva or between indigenous communities in Brazil
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COMMUNICATION
Communication failures lead to distrust Myriad Genetics misunderstood the signals it was
receiving in Europe about its patents
Exaggerated claims by industry and NGOs lead to policy impasses over access to medicines
Labeling of infringement as a moral wrong fails to build collaboration between developed and developing countries
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PARTNERSHIPS
Collaborations and partnerships key To enlarge the range of pre-competitive activities
by building tools and knowledge that is not patented
Platforms through which to monetize basic knowledge to encourage its free flow
Joint projects to demonstrate proof of concept for promising technologies
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SCIENTIFIC INFRASTRUCTURE
There is a growing body of research occurring within developing countries
This research usually is not taken further because of lack of skill, lack of funding and lack of laboratories
Africa and other regions face a brain drain A critical problem is lack of high-speed Internet
access Partnerships can build infrastructure for science Developed and developing country universities
can build programmes to train scientists at home
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NEW ANALYTICAL MODELS
New analytical models are needed that focus not on patents per se but the role of patents within larger innovation systems
Need models that cross across not only IP, but health and agricultural regulations, tax and corporate law rules, business models and practices
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IMPACT ON LAW
The way patents are used and their effect different today than 30 years ago
Traditional IP theories are increasingly suspect
Importance of a critical stance toward claims about IP
Contextual and complex nature of problems
The good news: new and better evidence coming… but not tomorrow
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CONCLUSION
Much of our current understanding of the role and effect of IP needs revision
A great need for better empirical evidence and carefully conducted case studies
IP is just one of many factors in facilitating innovation
Decisions best made by taking into account the context and complexity of the problem
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