Foreword: The Complex Terrain of Intellectual Property Governance

Foreword: The Complex Terrain of Intellectual Property Governance

Description

The concept for this book was formulated in 2018, long before the COVJD-19 pandemic was on the horizon. However, it could not have been published at a more opportune moment. The intense global efforts underway to find diagnostics; treatments; vaccines; and technologies for analysing outbreaks, testing medications, and tracing infected individuals raise precisely the question explored in this volume: how can patent rights be deployed to incentivize investments in researching and developing socially critical innovations without sacrificing the public's interest in sharing the benefits that are produced? The fascinating chapters included here examine this issue in four contexts, the life sciences, agriculture, artificial intelligence (AI) and information technology. Together, these contributions illustrate the many difficulties inherent in motivating invention while ensuring that its fruits are efficiently disseminated. Foremost among the problems are the many significant differences among innovations. Some, as Żaneta Zemła-Pacud describes, are revolutionary and fundamentally change the approach to particular technological problems; others represent modifications, improvements, or—as may be the case with many treatments for COVID-19—the repositioning of existing technologies to meet new needs. Some advances have acceptable substitutes; others, such as antibiotics, are needed because existing technologies have failed or are floundering. Some inventions deal with crucial social problems, like nutrition; others are aimed at more attenuated concerns, such as computer gaming. Some technologies are clearly beneficial, whereas others, such as the human enhancement technologies described by Helena Żakowska-Henzler, are potentially dangerous or morally ambiguous. Second, there are distinctions in how the period of exclusivity interacts with demand for a patented advance and its rivals. In some cases, the patentee can obtain benefits for the entire term of protection because the market is poised to immediately use the invention. But, as with pharmaceuticals, marketing may be delayed by the approval process or, as for computers and AI, it may take the public a long time to understand the value of the innovation and begin to purchase it. By the same token, there are innovations that rivals can make immediately available upon patent expiration, but in other cases, such as where competitors also need market approval, the patent term may be followed by a period of de facto exclusivity. Additionally, the markets for some innovations are inherently large. For example, the entire planet must be vaccinated against the coronavirus. However, some markets are naturally limited, either because the population that needs the invention is small or because few of the many who need it can afford to pay supra-competitive prices. Examples mentioned in the book include treatments for neglected diseases and plants bred for particular environments. In addition, as Justyna Ożegalska-Trybalska's chapter points out, there are significant sectoral differences. In some fields, such as pharmaceuticals, innovation is risky and significant investments may be necessary. In those areas, inventors require a long period of protection from free-riding competitors to capture an adequate return. In other sectors, the argument for patent protection is weaker. For example, in computer technology, where upfront costs are lower, innovation entails less risk. Moreover, there are mechanisms such as network effects, licensing and servicing possibilities, or in-app purchases that prolong lead time or provide sufficient compensation in other ways. There are also fields where user-innovation (innovations developed by users for their own needs) is common and therefore external rewards are less important. Thus, as Juan Antonio Vives-Vallés notes, farmers are also breeders; they can often benefit directly from their inventions. There are also subject areas where inventions may be found in Pasteur's Quadrant, that is, where an advance is simultaneously a fundamental scientific discovery (e.g., the discovery of the genetic cause of a disease) as well as a technological application (the diagnostic for the disease). Although the discovery may be one innovator's output, for which it seeks a financial return, for other researchers, it is a necessary input. Geertrui Van Overwalle's contribution illustrates how this duality can affect progress in the agricultural sector. As the contributions of Dieter Kamiah and Rafał Sikorski suggest, an analogous dynamic operates in the ICT sector, where concerns about interoperability can require that rivals use one another's patented technologies. These differences—among advances, in the relationship between demand and the period of protection, and among technological sectors—clash with the transsubstantive nature of patent legislation. These laws are drafted abstractly in order to ensure that they readily apply to every conceivable technical advance. As a result, they do not generally make any of these critical distinctions. Thus, one of this book's key contributions lies in exploring the mechanisms for dealing with the friction between generalized application and specialized concerns.

Source Publication

Patents as an Incentive for Innovation

Source Editors/Authors

Rafał Sikorski, Żaneta Zemła-Pacud

Publication Date

2021

Foreword: The Complex Terrain of Intellectual Property Governance

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