Report critiques focus on patents

Counting patents may be the easiest way for administrators to measure the success of a university’s adventures in technology transfer, but Richard Gold insists that it is also the wrong way.

The McGill University law professor argues that universities should not be counting their patents, but instead should be taking stock of what those patents are doing – how they are being licensed, whether they are being picked up in any marketplace, who wants to become a partner in this enterprise and what kinds of social returns all these activities are generating.

“Universities need to develop clear principles relating to the use and dissemination of their intellectual property,” said Dr. Gold, who founded McGill’s Centre for Intellectual Property Policy. “Any notion that patents are a measure of anything in tech transfer should be abandoned.”

His conclusion was one facet of a broadly based indictment of the way intellectual property policies have evolved over the last few decades, especially with respect to innovations in biotechnology.

Dr. Gold chairs a diverse international panel of academics who have spent seven years examining various aspects of these topics. The group, funded through an Initiative on the New Economy collaborative research grant from the Social Sciences and Humanities Research Council, released its report in Ottawa in mid-September.

That report, Toward a New Era of Intellectual Property: From Confrontation to Negotiation, describes some of the legal battles that have been waged over matters like the patenting of genetically modified bacteria.

Dr. Gold said that legal conflicts have not only interfered with research processes but have also likely prevented potentially life-saving medicines from making their way into the hands of patients.

“Our research shows that, contrary to common belief, those researchers who patent more, partner less,” said Dr. Gold, suggesting that when a scientist’s work is bound up in legal restrictions, it is far less likely to be pursued by others.

That can hurt progress at the forefront of biotechnology, where financial risk and technical complexity are often more than any one company or university can bear alone.

These difficulties are even more onerous in much of the developing world, where the limitations imposed by IP ownership hamper the already limited resources of the research community. The report points to cases in Brazil, Indonesia and Kenya where systems for protecting the scientific potential of indigenous peoples’ traditional knowledge can be so cumbersome that firms have sometimes illegally moved their operations out of the country in order to proceed.

Old vs. new IP

These problems characterize what the report calls “old IP,” an approach that it says has grown so dysfunctional that even vested participants like drug companies are seeking some transition to the “new IP.”

Robert Cook-Deegan, an adviser to the international expert group, said the new IP will more faithfully reflect today’s realities of intellectual property – a system that is far more complex than it was made out to be in the old approach.

The old approach described technology transfer as a way of turning a university’s scientific discovery into an invention, which then became a commercial product. The dynamics are more circular than that, said Dr. Cook-Deegan, who directs the Center for Genome Ethics, Law and Policy at Duke University’s Institute for Genome Sciences and Policy.  In reality, the needs of a market are being used to identify opportunities, which in turn guide the research agenda.

Universities are also beginning to embrace this new model of technology transfer, with profound implications for the way they regard patents, said the report. In some cases, new drugs for major diseases such as cancer and HIV are being launched with access and benefit-sharing agreements to make the products more widely available in poorer countries.

Tania Bubela, professor in the University of Alberta’s department of marketing, business economics and law and member of the international group, said universities have a responsibility to ensure their licensing agreements support their stated goals, such as advancing development in poor countries. And the people in university technology transfer offices will thank you, she added.

Rather than demanding that these offices pay for themselves by racking up patents and securing commercial agents for narrow categories of their institution’s work, the success of technology transfer can be assessed along the same lines as other university initiatives – by finding prospective partners at other universities and elsewhere who can help them address a much larger program of research and innovation.