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The part IP plays in biotech will, we believe, become more complex as the market grapples with the requirement both to protect new developments and at the same time make them available to all.
One of the big issues in this market is whether IP is a block on development or actually helps it. On the one side, there are those, as in the computer industry, who have long been proponents of open source solutions, versus those who believe that proprietary development is the way forward. Clearly, the idea that inventions should be open to all to develop, for the benefit of mankind, animals and plants is attractive - but those opposing it say that if protection is not given to inventors, what incentive do these individuals and companies have to spend time and money in researching and developing innovative products and techniques? In a market which has such profound implications for the well-being of society, it would be surprising if the issue of protecting the rights of inventors versus ensuring that the public receives the benefits of biotech inventions were not fiercely debated – and indeed it is, including by the open-source research groups such as Bios (Biological Innovation for Open Society).
In the US there has certainly been a hot debate, leading to the US House of Representatives in July voting 47-11 in favour of allowing 12 years of data exclusivity for biotech drugs – for the moment at least - against the Obama administration’s view that seven years is fair.
One of the complexities is ensuring that the needs of biotech companies – and their investors – are met, while at the same time ensuring that governments who hold the power to provide grants, and academic researchers, are kept on side.
Over the past decade, the concern of the nonprofit sector is that industry has been amassing so many patents that the system, designed to provide incentives, risks inhibiting follow-on innovation. It has been claimed that over two-thirds of the DNA-related patents make claims that are legally problematic because they are too broad, improperly disclosed or because they overlap other patent claims. And patents surrounding the human genome may become even more important and controversial than those relating to DNA in future years.
With the open-source movement for software, code is accessible to anyone who wants to develop applications on the platform. It is possible that the same may happen in biotech for example for underlying research tools and data access. As with software, in the future, biotech inventors may choose to allow others access to certain aspects of their products or services. An organisation called Science Commons, based on the Creative Commons organisation for the software industry, has been established to try to encourage this.
We believe that it will always be important to have patents to protect innovation, or inventors will cease to invent, and that will be to the detriment of everyone. It is possible, however, that over time the inventors of such products and services that are deemed to be so important to the future of mankind and the environment may decide to give open access to parts of their work. It will be a debate that we will follow with interest.
October 2009
