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Restraints on anti-commons: is it enough?

Restraints on anti-commons: is it enough?. IAAE Conference Symposium Gold Coast QLD :: 13 August 2006 Carol Nottenburg PhD JD. Anti-commons in biotechnology. A resource prone to under use

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Restraints on anti-commons: is it enough?

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  1. Restraints on anti-commons: is it enough? IAAE Conference Symposium Gold Coast QLD :: 13 August 2006 Carol Nottenburg PhD JD www.cougarlaw.com

  2. Anti-commons in biotechnology • A resource prone to under use • when multiple owners each have a right to exclude others from a scarce resource and no one has an effective privilege of use. • “Tragedy” of anti-commons • refers to complex obstacles that arise when a user needs access to multiple patented inputs to create a single useful product • Patents granted on upstream technology will stymie further downstream R&D of useful products

  3. Is there an anti-commons? • Original proposal was theoretical, supported only by anecdotes • Anecdotal evidence for: plant transformation technologies • Anecdotal vidence against: cloning and eukaryotic transformation technologies, SNP consortium, EST database • Empirical studies differ but favor no anti-commons • one study found at most a modest anti-commons effect (Murray and Stern, NBER, 2005) • extensive survey of academic researchers found no anti-commons effect (Walsh, Science, 2005) • European study also did not find anti-commons problem (Thumm, 2003)

  4. Restraints on anti-commons • Anti-trust law • Patent pools and industry standards • Post-grant patent challenges • Patent grants tend to be narrow • De facto research exemption • Statutory exemptions to infringement • Limited patent term (patent grant delay) • Geographical limits of patents • Difficulty of obtaining injunctions (EBay)

  5. Anti-trust law • Natural counterpoint to patents • Mergers • companies may have to divest or license some of its IP – compulsory licensing • e.g.,Ciba-Geigy / Sandoz merger had to license TK and other gene therapy patents

  6. Patent pools • An agreement between 2 or more patent owners to license their collective patents to others • In U.S., oversight of patent pools by DOJ, FTC; strict req’ts • Used in multimedia industry (DVD, MPEG) • PIPRA collective for agricultural biotechnology

  7. Patent procedures • Utility requirement • e.g., can’t patent gene sequences wo known function • Enablement / written description req’t • difficult to obtain protection broader than what is reduced-to-practice • Post-grant challenges • re-examination / opposition

  8. Limits on patents • Patent term • 20 yrs, but patent grant may take 3-8 yrs. • Geographic limits • most patents only filed in a few countries

  9. Recourse against infringers • Statutory exemptions • De facto research exemption • ignore patents and infringe • no likely ramification (low damages; bad PR) • Injunctions difficult to obtain • recent EBay case in U.S. removed “automatic” injunctions in patent cases • post-EBay :: no injunctions in several cases

  10. Is it enough? • is there an anti-commons problem? • if there is a problem, are the restraints enough? • are legislative / substantive changes needed?

  11. thank you www.cougarlaw.com

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