Intellectual Property Rights and Research - Call for proposals

IDRC's Innovation, Technology and Society (ITS) program invites proposals under these 4 headings - Limiting Patentability, Exempting Research, Accessing IP and Fostering Collaboration

Intellectual Property Rights and Research

The Science and Technology (S&T) Policies thematic entry point aims at the creation of evidence to inform policy instrument choices.

The intellectual property rights (IPRs) regime and how it reflects and balances international commitments with the goal of advancing the economic and social rights of citizens is a key national policy instrument.

The global expansion of IPRs has influenced the setting of research priorities and increased the private ownership of research outputs. There is concern that IPRs may be obstacles to the development of local research capacities and to accessing research results vital to human development.

As IDRC was created in response to the research needs of developing countries, it is appropriate for its Innovation, Technology and Society (ITS) program to focus on the impacts of IPRs on research, as both encouraging and inhibiting innovation.

ITS invites proposals under four relevant headings:

1- Limiting Patentability

As a general rule Article 27 of the World Trade Organization's agreement on trade-related aspects of intellectual property rights (TRIPS) requires patents to be available for any invention if it is new, inventive and capable of industrial application. However, States may exclude from patentability inventions needed to preserve l’ordre publique or morality, but only when it is necessary to prevent their commercial exploitation. This includes inventions that protect the life and health of humans, animals, and plants, and inventions needed to avoid serious prejudice to the environment.

Article 27 also permits the unconditional exclusion from patenting of diagnostic, therapeutic and surgical methods, as well as higher forms of plants and animals and of biological processes for their production. Although plant varieties may also be excluded from patenting, there must be a sui generis intellectual property (IP) system to protect them if they are not patentable.

Possible research questions include:

How has the flexibility to limit patenting been used and why? To what extent and why has it been negotiated away in Free Trade Agreements by developing countries? What has been the effect of limiting patentability on innovative research? What exclusions from patentability would best promote research aimed at fulfilling basic human rights such as the right to health and the right to food? How is the patenting of plant varieties affecting plant breeding? Are exemptions for researchers to use existing breeds to create new breeds sufficient to stimulate innovation?

2- Exempting Research

Article 30 of TRIPS permits exceptions to the exclusive rights of the patent-holder providing it is limited, does not prejudice the patent-holder’s legitimate interests or conflict with its normal exploitation of the patent. This can include research on patented technology. It some countries it also includes research aimed at the early introduction of patented medicines.
The research exemption is articulated differently in different national legal systems. It can either be contained in a national statute or arise in the common law.

Usually it applies to all categories of researchers, though in a few countries is limited to private or academic researchers. Many developing country laws characterize the exemption as being for experiment, others for scientific purposes, and some for education.

Some countries specifically exclude commercial purposes. Others say it can be for technological purposes, which points to applied and perhaps eventually commercial use. It is the diversity of formulations that give rise to the suggestion that the research exemption is not formulated with sufficient breadth to take advantage of its potential as a spur to innovation.

Possible research questions include:

What is the real impact of the research exemption on research in key sectors for developing countries? Is the productivity of international research networks being reduced by restrictive formulations of the research exemption in developed countries?

How is the research exemption best expressed to promote innovation and development-related research and to what extent have developing countries used the exemption?

3 - Accessing IP

There are certain categories of subject matter that play a crucial role in research. One such category is Platforms Technologies that form the base for a wide range of innovations. Another category is Research Tools, that is compositions or methods that are useful in conducting experiments. This includes such technologies as cell lines, cloning tools, transgenic animals and reagents. Many research tool patents can pre-empt large areas of medical research and lay down legal barriers to the development of a broad category of products. Negotiations to obtain their use can be time-consuming, expensive and sometimes unsuccessful. Licenses may contain “reach-through” provisions requiring royalties to be paid on products discovered through research tool use.

Another key issue in accessing the knowledge contained in patents is the requirement to disclose the best mode for recreating the invention. There is a long-standing legal requirement that applications must sufficiently describe an invention to permit someone schooled in the art to replicate it. This is obviously important for researchers who want to learn from the patent.

There are a number of legal responses to assist in making IP available. An important one is the concept of compulsory licensing. Article 31 of TRIPS provides for States to grant a compulsory licence only where efforts have been unsuccessful to obtain one on reasonable commercial terms. Exceptions to this are cases of national emergency or other extreme urgency or in cases of public non-commercial use. Compulsory licensing is desirable to control high prices on such things as medicines and text books, to break anti-competitive behaviour, to ensure a market is sufficiently supplied, to ensure a patent is exploited, to address an emergency, to address issues relating to dependent patents, and to establish a research or industrial base.

The permissible exception to copyright is covered by Article 13 of TRIPS that limits it to special cases that do not conflict with a normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the rights holder. This includes the “fair dealing” or “fair use” doctrine. The Berne Convention also permits developing countries to license educational materials on a bulk basis at affordable prices, and for translation into local languages.

Possible research questions include:

Is the patenting of platform technologies preventing work on whole families of inventions? What measures can be taken to overcome that? What is the significance of the patents on research tools for use in sectors that are key for developing countries? What can be done to ensure their availability, especially to publicly funded organizations? How should the obligation to disclose the best method of using patented technology be most effectively enforced in low-income countries to yield significant research benefits? How can the right to a compulsory licence be most effectively and liberally framed to permit access to technology for research? How can limitations and exceptions under copyright law best be implemented and enforced in developing countries for teaching, educational and research purposes?

4-Fostering Collaboration

Mechanisms such as patent clearing-houses, patent pools and open source arrangements facilitate collaboration. They do so through granting common ownership rights or liberal licensing arrangements placing technologies in the public domain.

A patent pool is an agreement between patent-holders to license their respective patents to one another or to third parties on a non-exclusive basis. It can be done directly or through an intermediary. Patent pools can be mandated by government or arranged by industry where patent thickets have developed rendering technological progress difficult. In general, patent pools can help integrate complementary technologies, reduce transaction costs, clear blocking positions, avoid costly litigation and promote dissemination.

Patent clearing-houses are special patent pools that cover a particularly broad range of technologies and are more likely to rely on a single entity to coordinate the administrative functions. They provide information about the patented technologies and often feature knowledgeable industry participants able to divide the patents into appropriate categories. They may also provide an arbitration mechanism for monitoring and enforcing contracts.

Open source software involves the owner of the IPRs making the software including source code available on a non-fee basis. The licences must allow for modifications and enhancements to be made and provide that they will be equally available to the owner of the software and other licensees.

Possible research questions include:

What low-margin research in developing countries would be promoted through the use of patent pools or open source arrangements? To what extent can patent pooling address some of the key challenges that IPRs may pose for development-related research such as in the health sector and in what circumstances should patent pooling be mandated by government to permit innovative research? What has been the impact of patent clearing-houses, how can developing countries best benefit from them, and what can be done to establish and sustain them? What is the real impact of open source on software research and development and how can it be promoted in appropriate cases?

Inquiries should be directed to [email protected].

Published: 20 Jul 2007

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