Toward a New Era of Intellectual Property: From Confrontation to Negotiation Richard Gold, Associate Professor Une pensée d’avance – Think Ahead Continuing Education Conference Series 29 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 Faculty of Law Faculté de droit

IP ASSUMPTIONS  Some of the traditional arguments in 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 Faculty of Law Faculté de droit

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 Faculty of Law Faculté de droit

But are these tropes just tripe? Faculty of Law Faculté de droit

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 Faculty of Law Faculté de droit

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 Faculty of Law Faculté de droit

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 Faculty of Law Faculté de droit

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) Faculty of Law Faculté de droit

RESEARCH REPORT Faculty of Law Faculté de droit

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 Faculty of Law Faculté de droit

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 Faculty of Law Faculté de droit

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 Faculty of Law Faculté de droit

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 Faculty of Law Faculté de droit

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 Faculty of Law Faculté de droit

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 Faculty of Law Faculté de droit

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 Faculty of Law Faculté de droit

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 Faculty of Law Faculté de droit