Thursday, January 22, 2009

Nature on the implications of IP for biological research

A couple of academics from Berkeley and one from Arizona have published the results of a survey in Nature indicating, contrary to previous studies cited which indirectly without specific evidence inferred the opposite, that scientists believe that intellectual property protections are having an increasingly negative effect on biological research.

A system of intellectual property (IP) rights can encourage inventions by scientists and help promote the transformation of research achievements into marketed products. But associated restrictions on access can reduce utilization of inventions by other scientists. How is this trade-off working out in practice?

This question has been of particular concern for the biological sciences, where production and exchange of biological 'research tools' are important for ongoing scientific progress. Recent studies addressing this issue in the United States1, 2, Germany3, Australia4 and Japan5 find that "patent thickets"6 or an "anticommons"7 rarely affect the research of academic scientists. It is well known that biological scientists report increasing difficulties associated with access to research tools but only if the tools are embodied in physical property controlled by others and not easily duplicated. Fear of infringing a prior patent on this material, or the high cost of licensing, is rarely a factor.

Reviewing this evidence, Caulfield et al. infer that "[t]he problems that the data do reveal may have less to do with patents than with commercial concerns, scientific competition and frictions in sharing physical materials"8. The emerging consensus of the science and policy literature frames the issue as "material versus intellectual property"9, 10 and considers the latter to be rarely a problem for scientists.

This consensus relies on indirect inference. The literature offers almost no direct evidence of scientists' own views of the trade-off involved in IP protection of research tools.

Here we report scientists' assessments regarding the overall effects of IP protection, as revealed in a survey of academic agricultural biologists. Scientists believe that, contrary to the current consensus, proliferation of IP protection has a strongly negative effect on research in their disciplines. Our respondents' answers on the details of access problems are highly consistent with those reported in the recent literature, but they ultimately relate these problems to the proliferation of IP protection in academia.

Follow-up interviews, which recorded scientists' extended accounts of selected cases, provide further insights on how bench scientists experience the negative effects of IP protection (Supplementary Interviews online). They attribute problems of delayed or blocked access to needed research tools to material transfer agreements (MTAs). Academic administrators mandate use of MTAs to protect the value of the IP rights held by their institutions or to reduce their exposure to lawsuits by third parties. In short, the major impediment to accessing research tools is not patents per se, but patenting as an institutional imperative in the post-Bayh-Dole era.

Our respondents do not encounter an anticommons or a patent thicket. Rather, they believe that institutionally mandated MTAs put sand in the wheels of a lively system of intradisciplinary exchanges of research tools. Seeing no countervailing effect on the supply of these tools, they conclude that patenting impedes the progress of research.

These findings challenge the inferences of social scientists that there are no real problems with policies encouraging increased patenting of research tools. They also help explain why agricultural biologists have become leaders in the exploration of open source biology (BiOS, Biological Innovation for Open Society)11 and in institutional collaborations to facilitate access to crucial enabling technologies (PIPRA, Public Intellectual Property Rights for Agriculture)12. They support the widespread adoption of the Uniform Biological Material Transfer Agreement (UBMTA) for exchanges among scientists, long advocated by the National Institutes of Health13. In concurrence with previous related research, they offer no reason to continue supporting a stronger academic research exemption as urged, for example, by Cukier14."

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