Toward a New Era of Intellectual Property: From Confrontation to Negotiation Richard Gold, Associate Professor Une pensée d’avance – Think Ahead Continuing

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?

Faculty of Law Faculté de droit

OUTLINE

IP assumptions Pressures on biotech innovation Building understanding of the role of IP in

innovation Six areas to watch Conclusion


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


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


But are these tropes just tripe?


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


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


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


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)


RESEARCH REPORT


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


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


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


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


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


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


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


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


Documents

Toward a New Era of Intellectual Property: From Confrontation to Negotiation Richard Gold, Associate Professor Une pensée d’avance – Think Ahead Continuing