Gregory Graff
and David Zilberman
Department of Agricultural and Resource
Economics, University of California, Berkeley
December 1, 2000
Contents:
2.INDIVIDUAL
RESPONSES TO THE STATUS QUO OF THE ANTI-COMMONS
3.SOLVING
THE ANTI-COMMONS WITH COLLECTIVE RIGHTS ORGANIZATIONS
4.INTELLECTUAL
PROPERTY INFORMATICS FOR AGRICULTURE
5.ONLINE
INTELLECTUAL PROPERTY EXCHANGES
Table
1. Online B2B-type Patent Exchange and Licensing Sites
6.A
COLLECTIVE RIGHTS SOLUTION FOR AGRICULTURE
a.A
clearinghouse for intellectual property and technology transfer
b.Other
services that could be provided by a clearinghouse
7.WHO
WOULD USE AN IP CLEARINGHOUSE FOR AGRICULTURAL RESEARCH?
Table
2. Patenting Organizations with Agricultural Biology Patents
8.AN
IP CLEARINGHOUSE AND TECHNOLOGY TRANSFER TO DEVELOPING COUNTRIES
1. BOTCHING A DELICATE BALANCE
A fundamental economic tension exists between the public and the private economic forces that drive agricultural research. On the one hand, the human race's collective knowledge in agricultural science and the genetic pool of our primary crop populations represent, in the big picture of human welfare, vital common economic resources (1). On the other hand, sufficient incentives or support must be given for researchers to undertake the ever-necessary stewardship and advancement of these vital resources.
Patent policies for biological organisms, materials, and processes—the private granting of intellectual property rights (IPRs) over these otherwise intrinsically public-natured goods—provide one very important practical (although not everywhere an accepted or even a theoretically optimal) solution to this public-private tension. However, the effectiveness of patents as a solution turns on two factors:
1)the definition of what is patentable, to clearly demarcate between what should be placed in the public pool of knowledge and genetic resources and what can be claimed as private knowledge or genetic technology; and
2)the mechanism to trade patents,to efficiently move the privately-claimed knowledge or genetic resources into the hands of those specific users who are able to add value by their applications of that knowledge and fairly compensate the private creator or steward of that resource.
When the first factor fails, the common (interdependent or complementary) resources of agricultural knowledge and genetics end up getting divided up into multiple competing, overlapping, or mutually blocking private property claims. Then, when the second factor fails, individual owners of pieces of the common resources are no longer able to negotiate access to the other pieces of the resource they need simply to make good use of their own. As a result, a crisis in research and innovation productivity ensues that has been quite aptly dubbed ‘the tragedy of the anti-commons’ (2).
Particularly as agricultural research in genetics, breeding, agronomy, pest control, agroecology, and related systems becomes more and more intertwined and complex, new agricultural research inevitably depends more and more on access to knowledge and biological materials that have already been claimed as proprietary. In many cases, agricultural researchers' ‘freedom-to-innovate’ depends on scores of patents held by other parties. And while ‘research only' allowances may be implicitly granted for basic research in universities and public laboratories or may be fairly easily negotiated for basic research in private firms, any ‘freedom-to-operate’ commercially with new agricultural products that arise from the ensuing innovations may be immediately choked by the thicket of blocking patents (3).
The current status quo under the climate
of the anti-commons is not satisfactory to anyone. Public and private researchers
in both developed and developing countries find freedom-to-innovate and
freedom-to-operate overly constrained. Legal costs and transaction costs
spent on trying to navigate a way through the patent thickets are mounting.
Private industry appears to have consolidated in order to streamline access
to patented technologies (4).
Uncertainty over freedom-to-operate and blocking patents in the U.S., Europe,
and Japan has added additional burdens to the already challenging process
of conducting international agricultural research and transferring technologies
to developing countries (5).
Firms and public institutions are spending resources solving intellectual
property (IP) problems that could otherwise be committed to better assuring
the environmental and health safety of their biological innovations for
agriculture. And, the strong wave of consumer and environmentalist opposition
to genetically modified foods, particularly in Europe and developing countries,
is spurred on in part by the minimal access, transparency, and outside
review of the technologies that under gird those new products. As economists
studying this situation, we are concerned that economic growth driven by
technological advances in biology for agriculture is stalling and the potential
social, nutritional, and environmental benefits that would otherwise be
generated for the human race and the biosphere we live in are being compromised.
2. INDIVIDUAL RESPONSES TO THE STATUS QUO OF THE ANTI-COMMONS
In the midst of their dissatisfaction, individual institutions have been working out different methods of surviving within the congested IP landscape; even in the public sector a number of IP strategies have recently been taking shape (5), (6), (7). In general, the following IP management tactics make up the list of potential unilateral strategies available to individual organizations, both public and private, to allow themselves freedom to innovate and to operate:
3.
SOLVING THE ANTI-COMMONS WITH COLLECTIVE RIGHTS ORGANIZATIONS
However, according to Robert Merges of the Boalt School of Law at U.C. Berkeley (8), economic theory suggests that, based on the nature of common-pool resources, the roots of the problem cannot be effectively addressed through such unilateral strategies but rather only through some form of collective solution. Historically, public-policy collective measures taken to solve the problems of IP congestion include the following:
Still, a strong case can be made for the formation of some sort of multilateral collective rights organization for genetic resources and agricultural technologies. All of the unsatisfied parties—in both the public and private sectors, in both the biotechnologically advanced industrial economies and in the biodiversity rich developing countries—stand to benefit significantly from some sort of 'intellectual property clearinghouse'. However, there are many options in terms of the potential arrangement of mechanisms for such an institution.
Recently, major trends in intellectual
property information, management, and marketing are emerging with the advent
of database and Internet technologies: tools such as IP informatics and
online intellectual property exchanges. These advances promise new options
for mechanisms underlying collective intellectual property rights organizations,
with greater potential for steering away from the major antitrust concerns.
Those who might be interested in developing some form of IP clearinghouse
institution for agriculture should consider these first as they are already
in formation.
4. INTELLECTUAL PROPERTY INFORMATICS FOR AGRICULTURE
A first practical step toward solving the problem of the anti-commons is 'IP informatics', making information about a set of technologies and the IP that protects them broadly and freely available to all interested parties. The common availability of such information helps to overcome two serious barriers to the fair exchange of technologies, characterized in economic terms as market failures resulting from ‘imperfect information’ and ‘information asymmetry’. Providing for a complete and open flow of information allows individual researchers and organizations to identify actual and potential conflicts amongst the IPRs already granted. When considering the potential gains and savings that may be achieved by researching organizations in the scientific field and the related industries, IP informatics is a relatively inexpensive and straightforward investment, as the basic data is generated by the patent offices of the respective countries or jurisdictions.
A number of services already provide searches and analysis of patent data. These include services such as the websites of the U.S. Patent and Trademark Office and the Delphion (formerly IBM) Intellectual Property Network and the more specialized IP management and analysis software-data package systems such as the Aureka patent system developed by Aurigin Systems. The Center for the Application of Molecular Biology in International Agriculture (CAMBIA), a non-profit research institute located in Canberra, Australia, is going a step beyond those by developing a more comprehensive, up-to-date IP informatics tool called the CAMBIA Intellectual Property Resource (CIPR), with funding from the Rockefeller Foundation. CAMBIA intends to provide a readily searchable database of US, European, and international (PCT) agricultural biology patents, augmented by advisory and educational services, particularly for public researchers in international agricultural institutions and less developed countries.
Further supporting data and analysis could be supplied to enrich the use of basic patent data and add additional value to such an IP informatics tool:
Other kinds of information could
be added to such an IP informatics resource specific to agriculture:
5. ONLINE INTELLECTUAL PROPERTY EXCHANGES
Another explanation for the congestion of the intellectual anti-commons is the failure of recognizable and effective markets to form for the exchange of technologies and intellectual properties. In a study at the Heinz School of Management of Carnegie Mellon University, Asish Arora and co-authors (10) explore the key benefits of markets for technology and the primary reasons that such markets fail to form. In light of their arguments, a fairly new and promising step towards breaking up the blockage caused by the anti-commons is the formation of 'online intellectual property exchanges'.
Beginning in 1999, a number of entrepreneurial startup ventures emerged on the Internet with explicit business plans for creating virtual trading floors for intellectual assets. Online exchanges for intellectual property take inspiration from the basic Internet business-to-business (B2B) model, and their promotional efforts tout the promises of free-market efficiency. However, several concerns arise when considering the potential for such patent exchanges to optimally redistribute technologies to those who can make the most valuable use of them for society at large. First and foremost, patents and licenses do not neatly fit the economic description of goods that are readily tradable on open exchange marketplaces (11). Such exchanges are best suited for highly repetitive, routinized transactions of clearly defined, standardized, and readily priced assets, goods, or contracts (including contracts for services). The technologies specified in patents, however, are highly heterogeneous, are often difficult to clearly or completely define, and may be impossible to evaluate sufficiently until after considerable experimentation and refinement has taken place (i.e. until well after a transaction needs to have taken place). These factors give rise to uncertainties that darken the prospects for spot transactions of patents. Furthermore, innately held differences between sellers and buyers in their respective valuations of a technology may be wide enough to make it difficult to arrive at a clearing price for a license. In recognition of these drawbacks and others, many of the existing online exchange services are seeking creative ways to add transaction-mediating services. On the other hand, many of them are simply providing an embellished IP informatics service, a simple database augmented by a few basic services to allow technology searchers to initiate negotiations for a license, amounting to little more than an online listing of classified advertisements or a bulletin board of "patents wanted” and “patents for hire."
Two relatively rare types of patents, however, have qualities that should make them rather more conducive to online promotion. The first are those few patents that cover highly important general-purpose research methods, for which a winning marketing strategy would be to grant as many routine non-exclusive licenses as possible throughout the entire industry (such as the now-famous Cohen-Boyer patents of U.C.S.F. and Stanford). Holders of such general-purpose patents would benefit greatly from the low transaction costs of online promotion and distribution. Second are the more numerous patents protecting highly specific inventions making incremental improvement to a familiar downstream production process, which are often most valuable when exclusively sold or licensed to the specific potential user who values that innovation the most. Holders of these patents would benefit from the ease of finding the willing buyer and low transaction costs for executing, again, a routine transaction. However, the bulk of patents that fall somewhere in between these two examples, either in terms of importance or in terms of generality of application, will likely be difficult assets to transact in the online exchange environment.
Online exchanges also face other important difficulties. They currently are squeezed by an economic vice clamp: on the one side they are pressured by the fact that an online patent exchange earns revenues and thus remains viable by attracting numerous buyers and sellers to make licensing transactions and then charging a small flat fee or a percentage commission on each transaction. To achieve a sufficient volume of transactions, a site must maintain what may be called sufficient ‘IP liquidity’. IP liquidity is supported not simply by listing a large number of available patents overall, but, arguably more importantly, by listing a sufficient 'density' of available patents in each given industry or field of technology, providing interested customers with a sufficient selection to warrant their entering the site and searching for needed technologies. However, on the other side their ability to maintain such liquidity is squeezed by the fact that startup costs for establishing a new website exchange are relatively low, and a large number of online patent exchanges have arisen (see Table 1 below), each scrapping for a relatively small proportion of the overall listings of available patents and are able to maintain only a very low density of patents in any given industry. The overall market is thus fractured, and each of the individual online licensing markets is currently too thin to be useful by itself as an intellectual property clearinghouse for a specific field of science and technology such as agriculture. Potential customers have to undertake an arduous and costly search process—going site to site, registering for membership numerous times, in some cases paying to view the patents in which they might be interested—all in the pursuit of rather slim pickings. Drastic consolidation of the online patent exchanges or a universal cross listing of available patents on the existing online patent exchanges (at least for a given industry, such as agriculture, like that proposed above in the section on IP informatics) would help to alleviate this problem.
Consolidation and universal listings would, however, do little to circumvent yet another problem to which the online patent exchange business model is susceptible, what may be called the ‘matchmaker’s dilemma’. Once a potential buyer (or licensee) has discovered an interesting patent that has been listed by a seller (or licensor) on an exchange, the buyer-seller pair may find it more economically advantageous and secure to go offline and deal directly with one another, thus dispensing with the matchmaker and avoiding payment of any commission. So, like a dating service, the patent exchange may excel in providing first-time introductions, but is not trusted to meddle further in the technological relationship. The matchmaker dilemma threatens to constantly sap away the necessary volume of traffic needed to maintain the IP liquidity of the market and the revenue base of the online exchange.
A list of online intellectual property licensing and exchange services in business as of Fall 2000 is provided in the table below.
Table
1. Online B2B-type Patent Exchange and Licensing Sites,
as of October 2000
|
Brain
Supply
|
|
|
Buy
Patents
|
|
|
Cool
License
|
|
|
Delphion
(formerly IBM) Intellectual Property Network
|
|
|
Double
Twist
|
|
|
Global
Licensing Exchange
|
|
|
Hello
Brain
|
|
|
Hot
Dispatch
|
|
|
Intellectual
Property Exchange (Price Waterhouse Coopers)
|
|
|
Intellectual
Property License Exchange
|
|
|
International
Invention Register
|
|
|
International
Technology Exchange
|
|
|
IP
Marketplace
|
|
|
IP
Network
|
|
|
Knowledge-express
|
|
|
New
Idea Trade
|
|
|
Patent
& License Exchange (pl-x)
|
|
|
Patent
Auction
|
|
|
Patent
Café
|
|
|
Patent
Post
|
|
|
PATEX
(by Corporate Intelligence)
|
|
|
Pharma
Licensing
|
|
|
Pharma
Transfer
|
|
|
Tech
Tuesday
|
|
|
TechExchange
Online
|
|
|
Technology
Connect
|
|
|
Technology
Exchange (TechEx)
|
|
|
TechSearch
|
|
|
Thought
Store
|
|
|
UK
Technology Exchange
|
|
|
University
Ventures (Uventures)
|
|
|
US
Patent Directory
|
|
|
Virtual
Component Exchange (VCX)
|
|
|
Yet2
|
|
|
Zpatents
|
The value to society of more efficient technology markets—that is, more efficient mechanisms for getting good ideas deployed in their most valued applications—could be enormous. Where viable markets for technology are competitive, the economic rule of efficiency calls for private enterprises to handle the creation of such markets, while, only in areas where benefits are anticipated but incentives are insufficient to induce private involvement, public services should consider supporting market mechanisms for the exchange of IP and technologies.
Regardless of whether an IP exchange
is private or public, in the end, only those types of patents that are
amenable to the market mechanism will be efficiently accessed. The remaining
types of patents simply are not made available on an IP exchange or technology
transfer site. Most clearly, the strategic (or monopoly power) value of
some proprietary technologies convinces patent holders against offering
them under non-exclusive licenses on a competitive market. In these cases,
however, some type of mutually enforced agreement may offer firms and universities
that hold such strategic patents a means by which to realize the value
of these patents by using them to gain broad access to other proprietary
technologies.
6. A COLLECTIVE RIGHTS SOLUTION FOR AGRICULTURE
A number of voices have been advocating
collective IP solutions for public sector agricultural research, essentially
seeking, in the relatively short term, freedom-to-operate in academic and
not-for-profit agricultural research institutions (6),
(12),
(13).
A meeting of agricultural intellectual property stakeholders at the World
Food Prize Symposium in Iowa this October promoted dialogue about the variety
of institutional needs and possibilities (14).
Stemming from the CRO ideas advanced by Merges, even firms locked in the
life-and-death technology struggle for agricultural market share stand
to gain significantly from an effective collective solution to the balkanization
of IP in agricultural research that largely they have created for the sector.
Such a move by the private agriculture firms would be good for business.
The direct result would be better mutual access to enabling technologies.
Perhaps more important, though, would be the indirect result of being seen
by consumers, activists, and regulators the world over as better fulfilling
for poor countries and poor consumers some of their requisite moral duties
as stewards of the life-giving resources of agriculture (15),
(16).
a. A clearinghouse for intellectual property and technology transfer
An intellectual property clearinghouse—based on Merges' principles of a collective rights organization (CRO) and focused on IP for biotechnologies used together in complex agronomic or agroecological systems—promises a genuine solution to the collective problem in agricultural research. In such an arrangement, widely dispersed technology providers and users are linked to one another through a common commitment and are supported by a professional network, allowing them much more quickly to identify relevant technologies and, through standardized procedures, to fulfill transactions of rights and technologies, thereby creating a more efficient and fair global trade in agricultural research methods, applied technologies, genetic materials, and germplasm. To be at all effective, a clearinghouse mechanism must provide three fundamental functions:
1. The capacity to identify all relevant intellectual property that exists over a given technology and, of that, indicate what pieces are available and how they are to be accessed
2. The establishment of a pricing scheme and terms of contract that depend on the identity of the buyer
3. An arbitration mechanism for monitoring and enforcement of the contracts made.
It is important for this clearinghouse to be squarely focused on agricultural biology and the specific needs of the institutions involved in this particular field of science and human industry. The generalized intellectual property data sources and the online intellectual property exchanges discussed above provide many good services (and could be valuable partners or contractors) for an agbio IP clearinghouse; however, in maintaining a breadth of coverage of all technologies, they necessarily sacrifice depth and comprehensiveness in any one field, such as agriculture. Searching for listings of agricultural biology patents turns up spotty results on the best of the online exchanges, and surveying across the sheer number of such services, as already mentioned, represents in itself a significant search cost for an agricultural researcher seeking to access a technology. Furthermore, some of the essential functions of a clearinghouse as a CRO depend upon its ability to act with the collective mandate of the stakeholders in the industry. The stakeholders, in cooperating to compete, need to be able to come together, just as competitors in an athletic contest need to play by the same set of rules in the same arena and agree to abide by the calls of a referee.
An agbio IP clearinghouse should be
independent and neutral. It should not be a technology user’s club or a
technology seller’s marketing tool. Either of these variants would result
in strong biases or ‘capture’ by one set of interests that would greatly
diminish the effectiveness of the exchange or would possibly strangle it
outright. Also, a collective organization that is not independently and
neutrally promoting competition in the industry would likely run afoul
of current antitrust laws or legal precedents for licensing (6).
Even a market based patent-exchange-type clearinghouse may not necessarily
be neutral: some B2B e-commerce exchanges dealing in industrial supply
commodities are already being accused of price manipulation and other antitrust
violations (17).
If a consortium of interested parties in the industry forms the clearinghouse,
financing and governance structures should be appropriately diluted and
balanced to avoid all such collusion or conflict-of-interest problems.
b. Other services that could be provided by a clearinghouse
An agbio clearinghouse also could provide a number of additional services, some of which are currently promoted by some of the intellectual property exchanges, to facilitate the three basic functions of a clearinghouse. Such additional services include the following: a centralized transacting mechanism to simplify the licensing, cross-licensing, or outright purchasing of agricultural biotechnologies; expert valuation of patents by third parties; active matching of buyers and sellers; patent ‘bundling’, syndication, or ‘micro-pooling’ to create access to a set of patents that control a single biotechnological or agronomic technology system; intellectual property insurance to reduce infringement and patent validity risks; and more. These various options all aim at achieving one set of goals; they work to reduce or even to eliminate the market failures that prevent everyone working in agricultural R&D from gaining access to the technologies needed to further his or her own research and commercial developments.
An agbio IP clearinghouse could collect and manage a ‘virtual’ public pool of enabling patents (covering research tools) placed in the public domain by inventors that do not expect any royalty. In this case, identification of the available property (function 1 of a clearinghouse) would be straightforward: the patents could be listed in the IP informatics resource or marketed and promoted in a number of other ways to the agricultural research community. Pricing of licenses (function 2) would be free, although could include a small users’ fee to defray the costs to the inventor for the application and maintenance fee of his or her ‘public domain’ patent. Monitoring and enforcement (function 3) would be necessary to ensure that the public nature of the technologies are respected and maintained by direct users and sub-licensees of follow-on innovations. The patent pool is ‘virtual’ because the property rights are ultimately still held by the inventors or owners of the patents, yet are known by all to be offered openly via the clearinghouse under a no-hassle, zero-cost licensing arrangement. Such a collection of publicly available biological research tools and enabling technologies would constitute a public-good sector of biotechnologies protected as such within the system of proprietary rights against private appropriation. Plant genetics researchers at the University of California together with a consortium of researchers at leading public research universities in the United States have advocated such a public domain ‘research toolbox’ (12).
An agbio IP clearinghouse could bring together multiple licensees for particular patents (providing downstream aggregation), in more restricted non-exclusive licensing arrangement by employing online auction methods already developed for web commerce, which may be adapted and applied to facilitate negotiations and promote particular patent or technology sub-markets. This service could attract many potential technology owners by the promise of generating significantly greater revenue by promoting broader, competitively priced licensing of their best technologies.
An agbio IP clearinghouse likewise could bundle together sets of complementary patents from different patent holders into complete ‘biotechnology systems’ or ‘agronomic systems’ contracts (upstream aggregation.) Given the comprehensive or universal nature of the listings, the availability of all technologies is transparent and key combinations of interdependent or mutually complementary technologies can be constructed. Furthermore, through active pursuit of ‘syndication’ strategies such as those common in media intellectual property markets, it would be possible to create varieties of combined and customized licensing products that could greatly increase the use of inventors’ technologies (and thereby their revenues) as well as make multi-patent technology systems readily available and affordable to researchers’ budgets.
An agbio IP clearinghouse could monitor patent quality, check and verify ownership status and validity of patents, and generally serve as a watchdog against problematic patents that are poorly written, overly broad, or otherwise disruptive to the productive flow of information and property rights in the industry, arbitrating parties’ concerns about such egregious patents and recommending changes that would serve the collective interests.
An agbio IP clearinghouse could maintain
and provide data about the current regulatory approval and biosafety status
of new technologies. As the field of agricultural biology rapidly
develops, it is crucial to keep track of which components of the technology
have been approved for which uses and in which countries, particularly
as this has a very strong influence on the value and thus is crucial information
for determining or negotiating a fair market-clearing price and terms for
a technology.
7. WHO WOULD USE AN IP CLEARINGHOUSE FOR AGRICULTURAL RESEARCH?
Who would be the most likely initial participants in an intellectual property collective rights organization or intellectual property exchange? For the purpose of identifying who would be interested in a clearinghouse, let us examine who is actually in the technology space of biological applications for agricultural. Here are the names of the top 30 assignees of agricultural biology patents in the United States as of the end of 1998, with public institutions highlighted.
Table
2. Patenting Organizations with Agricultural Biology* Patents
|
Patent
assignee name
|
Number
of agbio patents
granted
by the end of 1998 |
|
Pioneer
Hi-Bred International (DuPont)
|
|
|
Mycogen
(Dow)
|
|
|
USDA
|
|
|
Monsanto
(Pharmacia)
|
|
|
Asgrow
Seed Company (Pharmacia)
|
|
|
Calgene
(Pharmacia)
|
|
|
Zeneca
(Syngenta)
|
|
|
University
of California
|
|
|
Holden's
Foundation Seeds (Pharmacia)
|
|
|
Novartis
Corporation (Syngenta)
|
|
|
Du
Pont
|
|
|
DNA
Plant Technology (Savia)
|
|
|
Ciba-Geigy
(Syngenta)
|
|
|
Plant
Genetic Systems (Aventis)
|
|
|
Cornell
University
|
|
|
DeKalb
(Pharmacia)
|
|
|
Iowa
State University
|
|
|
Sandoz
(Syngenta)
|
|
|
University
of Wisconsin
|
|
|
Hoechst
(Aventis)
|
|
|
Lubrizol
|
|
|
Ecogen
|
|
|
Rhone-Poulenc
(Aventis)
|
|
|
W.
R. Grace
|
|
|
Texas
A&M University
|
|
|
Michigan
State University
|
|
|
North
Carolina State University
|
|
|
Agracetus
(Pharmacia)
|
|
|
Imperial
Chemical Industries (Syngenta)
|
|
|
Research
Corporation Technologies
|
|
*Patent counts include
utility patents over enabling biotechnologies, genes, and germplasm, including
plant varieties, hybrid lines, etc.
Source:
Gregory Graff, dissertation, Dept. of Agricultural and Resource Economics,
U.C. Berkeley, forthcoming 2001
Many leading multinational firms have been making major changes in their licensing policies in the last five years, as they find that aggressive licensing of at least portions of their intellectual property portfolios can increase their revenues and profitability well above and beyond what they previously have been able to capture from the exclusive use (or disuse) of their inventions (18). University offices of technology transfer (OTTs) operate under a mandate to spin out the fruits of university researchers’ labor for commercialization and public use; in many cases they would be better able to meet that mandate through multiple non-exclusive licenses if a viable marketing vehicle were available. Since university technologies are often in the very early stages of development, university OTTs often find it necessary to raise the incentives by offering exclusive license commercialization deals, in order to attract any interest at all. Many university OTTs are in a policy quandary over the question of how best to disseminate the patented innovations that they hold. Small research and biotech firms who serve a role as technology creators and live on their patent royalties are constantly seeking means to earn more returns on their developments.
More important perhaps are the droves
of smaller patent holders who are holding just a single piece of the larger
technology system puzzle that they need. They would find an IP clearinghouse
a boon for allowing them a secure outlet for their single pieces of technology,
or a place to buy the complementary pieces that they might need to actually
commercialize their discoveries themselves.
8. AN IP CLEARINGHOUSE AND TECHNOLOGY TRANSFER TO DEVELOPING COUNTRIES
Equally important questions to ask are the following: “Who is not in the game?”; “Who is currently locked out of the dynamic advance of agricultural technology?”; “Who is struggling with their own position and policies in relation to IP?”; or “Who is stymied from investing more in the development of agbio research capacities because of uncertainties surrounding the validity and enforcement of IP in some countries?” These are essentially:
An active clearinghouse in any form—be
it an IP informatics service, a patent exchange market, or a collective
rights organization—will serve to level the playing field in agricultural
biology, will help to create paths through the thicket of competing property
claims that will free up agricultural research. A clearinghouse could help
to reverse trends of consolidation in the industry, since it would no longer
be necessary to control in-house a complete portfolio of interdependent
complementary technologies in order to be able to derive value from any
single component technology. It would free companies from innovation-constricting
technological paradigms to which their in-house patent portfolios may limit
them. It will help to move appropriate technologies out into regional and
applied agricultural research systems around the world and to provide incentives
and means for current outside players to strengthen their agricultural
research capacities. Finally, an agbio IP clearinghouse will help agricultural
research to arrive at and to maintain a healthy, dynamic balance between
the public and private forces allowing them to drive it forward into the
future along a trajectory that is more efficient, safe, and beneficial
for all.
CITATIONS
(1)Robert W. Herdt, "Enclosing the Global Plant Genetic Commons," paper presented at the Institute for International Studies, Stanford University, January 14, 1999
(2)Michael A. Heller and Rebecca S. Eisenberg, “Can Patents Deter Innovation? The Anticommons in Biomedical Research,” Science, 1 May 1998
(3)Carl Shapiro, "Navigating the Patent Thicket: Cross-Licenses, Patent Pools, and Standard-Setting," paper prepared for the conference "Innovation Policy and the Economy," National Bureau of Economic Research, Washington D.C., April 11, 2000
(4)Gregory Graff, Gordon Rausser, and Arthur Small, "Agricultural Biotechnology's Complementary Intellectual Assets," paper prepared for the conference "The shape of the coming agricultural biotechnology revolution: strategic investment and policy approaches from an economic perspective," International Consortium on Agricultural Biotechnology Research (ICABR), University of Rome,Tor Vergata, June 17-18 1999
(5)Brian Wright, "Challenges for Public Agricultural Research and Extension in a World of Proprietary Science and Technology," forthcoming in proceedings of the conference Knowledge Generation and Transfer: Implications for Agriculture in the 21st Century, U.C. Berkeley, June 1998
(6)Derek Byerlee and Ken Fischer, "Institutional and Policy Options for Accessing Modern Biotechnology for the Poor," paper prepared for the Fourth International Conference on the Economics of Agricultural Biotechnology, Ravello, Italy, August 24-28, 2000
(7)Eyal Press and Jennifer Washburn, “The Kept University”, The Atlantic Monthly, March 2000
(8)Robert P. Merges, “Contracting into Liability Rules: Intellectual Property Rights and Collective Rights Organizations,” California Law Review, October 1996
(9)U.S. Department of Justice and the Federal Trade Commission, Antitrust Guidelines for the Licensing of Intellectual Property, April 1995
(10)Ashish Arora, Andrea Fosfuri, and Alfonso Gambardella, "Markets for Technology: Why do we see them, why don't we see more of them, and why should we care," Heinz School Working Paper 1999-6, Carnegie Mellon University, February 1999
(11)Steven Kaplan and Mohanbir Sawhney, “E-Hubs: the New B2B Marketplaces: Toward a Taxonomy of Business Models,” Harvard Business Review, May 2000
(12)Alan Bennett, "Intellectual property in agricultural biotechnology: Fueling the fire or smothering the flame," presented at the conference Biotechnology and the Public Interest: Prospects of Biotechnology in the Developing and Developed World, University of California, Berkeley, April 28, 2000
(13)C.S. Prakash, "Intellectual Capital: Hungry for Biotech," MIT Technology Review, July-August 2000, pg. 32
(14)C.S. Prakash, Catherine Ives, and Gary Comstock, "Minutes from the Technology Transfer Meeting, World Food Prize Symposium," October 12 and 13, 2000
(15)Juan Enriquez and Ray A. Goldberg, "Transforming Life, Transforming Business: The Life-Science Revolution," Harvard Business Review, March-April 2000, pp. 96-104
(16)Seth Shulman, "Toward Sharing the Genome," MIT Technology Review, September-October 2000, pp. 60-67
(17)“A Market For Monopoly?” The Economist, 15 June 2000, pg. 59-60
(18)Kevin G. Rivette and David Kline, “Discovering New Value in Intellectual Property,” Harvard Business Review, February 2000