At its essence, the triple helix model is a partnership between the industrial, academia and governmental groups which recognizes the differing goals and stakeholder communities of these three groups but emphasizes on the common interest of those groups in order to provide value to the societies in which they reside. It is often operationalized as cosponsored programs. These programs support both small and large firms to transfer technologies from government and academic research laboratories and have enabled societies to more greatly benefit from the technological research that those same societies fund.
The landmark attempt towards the triple helix model was made by the U.S. when it enacted the Bayh-Dole legislation in 1980. This legislation granted permission for federally funded researchers to file for patents, and to issue licenses for these patents to other parties, thereby increasing participating of U.S. universities in national patenting. Conversely, in Eastern Europe, during the transition from socialism, some reformers were trying to remove government from a role in science and technology policy. Innovation systems were largely coming to a halt. Even though foreign direct investment was encouraged, it seldom involved utilizing local R&D resources. More recently, political leaders are moving away from that rigid position and bringing government back into the picture to take advantage of the R&D resources left behind from the previous era.
In the U.S., government-industry relations assumed increased significance in the 1990s even as university-industry bonds came to the forefront of attention in the 1980s. In much of the European Community these two sets of bilateral relations developed in reverse sequence with academic-industry connections following upon the development of government-industry relations. Academic-industry-government relations in the U.S. are taking on the cast that government-industry labor relations have long had in Europe. In the EU, EU sponsored activities, other efforts by European governments, NEXUS, IVAM are all examples of Government, Academia and Industry working together in order to maximize the commercial potential of macro and nano technologies in Europe.
This post in Part I on the larger area I intend to cover on the triple helix model for Technology Transfer on this blog.
Richard Barras, ‘Interactive Innovation in Financial and Business Services: The vanguard of the Service Revolution,” Research Policy, 19 (1990) 215- 37.
This year’s World Intellectual Property Day on April 26 focused on promoting green innovation as a key element in meeting the challenges of climate change In his message to mark the day, WIPO Director General Francis Gurry highlighted the contribution that a balanced intellectual property (IP) system can make in enabling the development of technology-based solutions to mitigate the impact of climate change.
The first to convert the discussion to action was the UK Intellectual Property Office when it announced that green inventions will be fast tracked through the patent process.David Lammy, Minister for Intellectual Property, announced the launch an initiative which will enable inventions with an environmental benefit to be given priority within the patent system.
There is speculation that companies in countries like India and China will take the lead in terms of green innovation. As per an Economic Times article a project by the Center for Scientific and Industrial Research (CSIR), an Indian organization, has resulted in a solar powered rickshaw with a top speed of 15 km an hour and a range of 50-70 km. The rickshaw runs on a 36-volt battery that can be replaced at a local solar-power charging station. The vehicle is now being tested in Delhi with the aim of replacing some of the city’s 500 000 rickshaws. If successful, the soleckshaw as it is called, will provide a clean and relatively speedy option for moving around crowded Indian streets.
Another innovation in China produced an inexpensive solar powered car. The car has a sticker price of just over $5000 with a range of up to 150 km. The tiny Chery QQ clone has been fitted with roof mounted solar panels that absorb 95% of the solar energy coming in. Although not luxurious, the vehicle may still be attractive to the rising middle class population in China
The concept behind this speculation is simple – companies in emerging economies innovate in the face of price sensitivity, although their consumers have lower expectations. In the green sector emerging economy players have an additional motivation in the fact that they are often based in countries that are much more polluted than developed nations. There is market demand as well as government impetus to come up with inexpensive ways to clean up the air and water.
The WIPO initiative and a trend following the developments of green inventions being fast tracked through the patent process in the United Kingdom by other nations can kick start a movement where IP will have a definite role to play in mitigate the impact of climate change.
This guest post comes from Professor Marcus Hurn, who is a distinguished Professor at Pierce Law and has taught fifteen different subjects during his teaching tenure. This post on the Taxonomy of Property focuses on classification on Intellectual Property in the Basics of Property. He broadly looks into Property and narrows down to the issues of Intellectual Property and even Trade Secrets.
A Brief Taxonomy of Property
There are four major classes of Property: Land, Goods, Obligations, and Intellectual Property. They differ based on whether they are tangible or not, physically movable or not, universal or not, and exhaustible or not. The traditional classification system has a superstructure, and there are significant sub-categories.
Property is real or personal.
Real property (immovables in civilian parlance) is space defined with reference to the surface of the earth, including the soil and things contained in or affixed to the soil. It is tangible but not movable. It cannot be lost, stolen, or physically destroyed. It has universal scope in the sense that an owner has rights against the whole world. It is exhaustible in the sense that only limited numbers of people can use it at one time. Its boundaries are physically ascertainable. It is ultimately controlled through possession and legal registries.
Personal property (movables in civilian parlance) is tangible or intangible.
Tangible personal property is goods/chattels.
It is literally movable, and can be lost, stolen, or physically destroyed. It has universal scope and is exhaustible. It physically defines its own boundaries. It is ultimately controlled through possession or sometimes legal registries.
Intangible personal property is Obligations or IP.
At common law most intangibles were choses/things/rights in action and not treated as property, merely as rights to legally compel or prevent some action or recover damages. Now nearly all obligations are assignable property in our system. (The major exception is some claims for personal torts.)
Obligations are rights to demand a performance or payment from some definite person or finite group of persons, thus they are not universal. They are not literally movable. All obligations are exhaustible.
Obligations are of two kinds: Wholly Intangible or Chattelized.
Wholly intangible obligations (e.g. contract rights, uncertificated stock, licenses) cannot be lost, stolen, or physically destroyed, are defined by proof of the legal obligation, and are ultimately controlled by notice to or coercion of the obligor (assignment, garnishment).
Chattelized Obligations (e.g. negotiable instruments, bills of lading, certificated investment securities and their modern electronic analogues) can be lost, stolen, or physically destroyed. They are defined by the words of the document/record and the law, and are controlled by transfer of the document by endorsement and delivery or encrypted transfer of the unique record. Loss of the document or record does not necessarily destroy the underlying obligation– if the document can properly be accounted for, the obligation can be enforced.
Intellectual Property
IP, as intangible property, cannot be lost, stolen, or physically destroyed. The “boundaries” are defined by grant or usage and the relevant law. It is ultimately controlled by assignment and, for some types, registries. Uniquely, it is inexhaustible — a potentially infinite number of persons can use it simultaneously or successively. Its oddity comes from combining one characteristic of tangible property– universality– with inexhaustibility.
Hybrids
There are, of course, some boundary problems and hybrids: e.g. fixtures, products of the soil, software embodied in goods. In a sense chattelized documents are hybrids. The paper form supplies the convenience of physical goods, and the electronic form (ignoring the physicality of the server) preserves that convenience (unique record) in intangible form.
Trade secrets are also a hybrid. They grow out of a combination of the law of tangibles (trespass to land, trespass to chattels– the safe, files, or computer) and obligations (confidentiality agreements). Trade secrets look universal, but are essentially finite obligations– anyone breaching the contract/tort security web is a wrongdoer, but one who learns the secret without culpability is not bound to defer to the original owner.
As the World Health Organization has raised its pandemic alert for swine flu to “phase 5” the second highest level, meaning that it believes a global outbreak of the disease is imminent, the relationship between patent rights and access to essential medicines has elicited again. As per WHO the phase 5 alert means there is sustained human to human spread in at least two countries. It also signals that efforts to produce a vaccine will be ramped up.
As it turns out that there is no vaccine available as yet and Tamiflu (Oseltamivir), a drug patented by Gilead and exclusively licensed to Roche is considered as one of the best drugs available today to cater to this kind of flu. Even at the time of the bird flu, it was known that Tamiflu was not the optimal drug to cater to such viruses– but only that of all the possible alternatives, it was the best.
In India, Deputy Controller of Patents, in a decision on the 23rd of March 2009, struck down Gilead’s patent application covering Oseltamavir compositions on the grounds of lack of inventive step, failure to comply with section 3(d) and failure to sufficiently disclose the invention claimed.
Since Gilead hasn’t patented this drug in all countries and has recently lost the Indian patent battle over “Tamiflu” just about a month back, these governments may turn to generic manufacturers for a cheaper priced alternative. And even if a patent exists , if Roche can’t meet the demands in terms of quantity and price some of these governments may decide to override the patent and grant compulsory licenses (treating it a case of national emergency) to enable cheaper alternatives.
It is interesting to note that the US does not have any compulsory licensing clauses within its patent regime that can be invoked. But there is a possible alternative that the situations can be worked into the ‘takings clause’ in 28 USC §1498 and perhaps the fifth amendment to the US constitution that contains ‘eminent domain’ principle. Under these principles, the government could use the patent without the permission of the patentee, subject only to payment of some reasonable compensation. The US had threatened to do something similar with Bayer’s patent during the Anthrax crisis.
But the bigger issue that was pointed out by Dr. Anatole Krattiger in a recent discussion with me is that “Back then, with Bayer’s Cipro, the US back-peddaled quickly so as not to undermine private patent rights. And now, most Western governments have stockpiled Tamiflu. But who will supply Tamiflu now to the low-income countries that have not had the currency reserves to stockpile Tamiflu?”
Further Reading:
Shamnad Basheer and Tahir Amin,Taming of the Flu: Working through the Tamiflu Patents in India , Journal of Intellectual Property Rights, Vol. 2, p. 113, March 2006
Whenever the term bioprospecting is mentioned, the country of Brazil is often cited. This is because the laws and regulations which have been created by Brazil are seen as extremely strict. In fact many people feel that instead of protecting the country against biopiracy, as Brazil undoubtedly seeks to, they are in fact reducing biodiversity research and slowing scientific advancement. The main reasons that the laws regarding biopiracy/bioprospecting were put into place is that the Brazilian government wanted to protect its indigenous people as well as its own financial interests in terms of seeing a product from its genetic and natural resources. The real questions are these: Is the level of restriction these laws impose justified in order to protect the indigenous peoples of Brazil? Or is the highly restrictive process put into place because the government is afraid of foregoing income?
At first, access to genetic resources and traditional knowledge was covered by the Provisional Measure 2.186-16 which was codified into law in 2001. These laws where fairly restrictive as far as the authorization for access to biodiversity was concerned, with all forms of access and research requiring the approval of the Brazilian government. However, that original provisional measure was also less restrictive in certain ways. For example it didn’t provide for by-products of genetic resources, and only covered pure genetic information.
Just last year Brazil passed a new bill which changed the way in which they approach the issue of bioprospecting/biopiracy. Unfortunately, I couldn’t examine the new bill myself because I couldn’t find a version of it that wasn’t in Portuguese, but I did find this article which had a good summary of the differences between Provisional Measure 2.186-16 and the new bill. The main differences between the two documents appears to be that the newer bill requires a much clearer paper trail to keep track of the use of genetic resources. For example patent applications now must have a corresponding “access license” for any genetic resource or by-product of genetic resources obtained in Brazil. Whereas before, even non-profit or humanitarian research efforts using the genetic resources of Brazil had to be sanctioned by the government, the new bill does not require Government approval for access and research that is designated as non-profit. I speculate that even though it appears that Brazil wants to tighten their law regarding who benefits from the use of its genetic resources, they seem to be moving towards allowing easier access for non-profit research. I think this because with easier access to resources for research dedicated to non-profit research, the greater the opportunity for scientific advancement. It appears that the Brazil thinks along the same lines.
Brazil has a large native population whose indigenous knowledge and resources the government is trying to protect. And rightly so. There is an incredible amount of attention focused on Brazil and the rain forests in our modern era. Celebrities are trying to save it as it may hold the next cure for cancer or even HIV/AIDS. Is this the reason that so many people are focused on protecting the peoples and rainforest? Why isn’t there a huge emphasis on indigenous knowledge and biodiversity protection in New Zealand or the Samoan Islands? Is Brazil constantly in the news because of the biodiversity-rich rain forest or is it because the indigenous peoples are really making themselves heard?
I feel that the issue of bioprospecting is something that we are going to be dealing with for at least as long as there are unexplored areas of the earth, while there is still flora and fauna that have yet to be discovered. The most important thing that we have to keep in mind though is that the modern patent system, which is part of a greater system of intellectual property, is based upon the protection of “new” inventions, or processes, as opposed to protecting knowledge which is communally held or has been in existence for some time. Many Tribes of the Brazilian rainforest have expressed anger at the bioprospectors who use their help and knowledge of the forest to find plants useful for research. Then often times the bioprospector turns a profit from their ventures, and give nothing back to the tribes, although increasingly various companies (such as Diversa) as well as academic groups (such as the International Cooperative Biodiversity Groups ) are working to changing this. The system of intellectual property was not made with the protection of indigenous knowledge in mind, since native peoples at that time were only a dream in the minds of novelists and scientific speculator.
Trying to create a system by which indigenous knowledge and resources can be protected is a challenge within the current patent system. Strategies such as the use of Access and Benefit Sharing programs are on the right track to creating a system by which indigenous knowledge and resources can be protected, yet accessed and used, but there is still a long way to go. Countries like Brazil may seem overzealous in some of their rules and regulations, but these laws are only being passed in order to protect their interests and the interest of their people. However these provisions cannot be made at the expense of the furtherance of science, which, in turn, can benefit the very people who shared their knowledge and resources at the first place.
Cogent reasons why a Patent per se is not a Monopoly
1.A monopoly is something in the public domain that the government takes from the public and gives to a person (like in the famous British case of the playing cards). An invention is something that did not exist before and was not in the public domain.It is something novel, that upon publication of the patent (application) enriches the public domain with the knowledge of the invention, and upon expiration of the patent, enters into the public domain, free to be used by anyone.A true antithesis!
2.In other words, “How can you have a monopoly on something that’s novel and, therefore, never existed in the market” (Don Banner).Indeed!
3.According to our patent legislation, a patent is “personal property”, like any other personal property (35 U.S.C. § 261).The term “monopoly is a nasty buzzword that appears absolutely nowhere in the patent statute.” (Chief Judge Markey)
4.According to the 1995 DOJ/FTC Antitrust Guidelines, patents are “comparable to any other form of property,” are “not presumed to create market power” and licensing patents is “generally pro-competitive.”This marks a 180-degree turn in their policy.
5.If anything, patents intensify competition; they can lead to many improvement patents as competitors are motivated to “invent around.”Patents are “potential antimonopoly agents.” (Judge Rich)
6.Even if a patent is misused and becomes temporarily unenforceable, it still is not a monopoly, unless there was market power. Misuse can be purged and when dissipated, enforceability is restored.
7.Patenting is a neutral act and a patent does not even grant a positive right to make, use and sell the patented invention but merely a negative right to prevent others from making, using and selling such an invention.
8.The patent right or property is too severely restricted in terms of duration and scope and beset by three dozens of reasons for invalidity and unenforceability to be considered a monopoly.
9.The Supreme Court also has dropped the old “monopoly” rhetoric, replacing it by “a recognition that the right to exclude in intellectual property is no different in principle from the right to exclude in physical property.”(Judge Easterbrook)
10.There are almost always alternatives available to the public — prior art alternatives, alternatives that are obvious and hence not patentable and alternatives provided by improvement inventions.
11.A patent is not a guarantee that the patentee will ever earn anything from the right to exclude others.
Because of the extremely negative connotation of the term “patent monopoly” that inventors and innovators are reprehensible monopolists rather than great public benefactors (with deprecatory effect also on patent law and patent lawyers), better terminology to use is: patent property, patent grant, patent right, exclusivity or simply patent.Also to be avoided as nonsensical: “artificial monopoly,” “desirable monopoly,” “government-sanctioned monopoly,” “legal monopoly,” “limited monopoly” or “temporary monopoly” or even “government-granted legal monopoly.”
Let’s stamp out “unthinking monopolophobia” (Chief Judge Markey) and” slander of patents” (Robert Sherwood).
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