Concepts Of Intellectual Property Research Paper

The field of intellectual property conventionally is regarded as the preserve of the lawyer. However, social science also explores the social and economic processes through which people, organizations, or governmental agencies make claims to IP, and, thereby, to certain legal rights, such as copyright or patents. Social science analysis particularly has been interested in understanding how these rights are negotiated and defined, how they may change over time, their tie-in with changes in the wider economy and innovation system, and the political and ethical issues they raise. These issues have informed, for example, the debate over the patenting of national genetic registers (data- bases) of whole populations by major pharmaceutical companies in order to facilitate future drug development: such a step has been taken in Iceland. This review of intellectual property focuses in particular on work in the social sciences (e.g., Weil and Snapper 1989, Etzkowitz and Webster 1994, Narin et al. 1997, Etzkowitz et al. 1998) that has explored the links between IP, the innovation system, and the wider ‘knowledge society.’

1. The IP System And Contemporary Innovation

The conventional rationale for the IP system is that it rewards creativity and innovation by providing monopoly rights to inventors for a specified period of time—typically up to 20 years. In return for disclosing or publishing something new so that others may have access to and use novel ideas, the originator receives some form of payment or recognition (such as acknowledgment in the case of prior copyrighted material). However, the pace and nature of innovation today make this process much more complicated than in the past, especially, for example, in areas such as the ‘new genetics.’ The question then arises whether IP law keeps up with the pace of knowledge-based innovations (Hoffman and Karny 1988) such that it can properly and coherently determine when monopoly rights are to be granted and when not, when novelty, nonobviousness, and utility (i.e., being capable of industrial application)—the three requirements of any claim to a patent—are in evidence and when not. In this regard, there has been considerable debate over the granting of patents for gene sequences whose function within the context of the human genome is still unknown. Moreover, such discoveries are regarded by many as simply the normal process of scientific investigation which should be made fully available in the public domain.

At the technical level, the laws governing what can and cannot be secured as patentable material, products, or processes are continually subject to reinterpretation to accommodate an ever larger range of life forms and forms of invention. The field of biotechnology has posed particular problems for IP law, not least in inventors being required to make a deposit and full description of their particular inventive step. The organic and complex structures produced through genetic engineering have meant that new arrangements have had to be made to meet this particular legal requirement. Problems, too, are found in the information technology sector where firms developing computer hardware and software promote the spread of their technologies while risking them being cloned or pirated by third parties because the security offered by copyright means very little in real terms.

Apart from the problem of handling the ever-changing demands of innovative technologies, especially those that derive from new interdisciplinary fields (e.g., agro-pharmaceuticals, or bio-informatics), the IP system must also cope with the growth of interface technologies—sometimes called ‘handshaking’ technologies—that enable independent systems and technical instruments to be compatible with each other. These handshaking technologies depend on competitors collaborating so that each can hook up their particular products to a wider system. Yet the question then arises of how to ensure that those firms whose innovation sets the required standard will enjoy some return on their investment (Shurmer 1996). The regulation of new technologies poses a related but distinct problem for the IP system. The need to ensure that the risks of new drugs or genetically engineered plant organisms are kept to a minimum has often led to regulatory delays on those products coming to the market. As such, one side of the ‘contract’ with the inventor(s) seems compromised, that is, the real value of the exclusive rights granted to an inventor will be much less because of the reduced period of patent cover once the product has come to market. In the 1990s, all three major markets of the world (the US, Europe, and Japan) extended patent term protection to pharmaceutical products by a maximum of five years to enable drugs firms a longer effective monopoly. This is a good illustration of the IP law having to adjust to meet the demands of both proprietors and regulatory agencies.

It is likely, therefore, that the IP system will encounter ongoing difficulties by the arrival of new technologies in the future as well as by the ways in which these new technologies relate to each other in the contemporary innovation system (Rothwell 1992, Taylor et al. 2000). Not surprisingly, some in the legal profession have gone so far as to argue that the IP system must adopt a technology-specific focus and develop IP law that is customized to particular technology needs (Christie 1994). For others, however, this would be to over-contextualize IP law and lead to a highly contingent interpretation of novelty and innovation (Mellor 1988).

Notwithstanding these debates, the fact that new IP rights have been granted for plant, animal, and human material raises wider socioethical issues about the patenting of life, the control over ‘natural’ resources, and moral concern over government’s own position regarding its regulation of private sector agencies. This debate has been particularly sharp in connection with the Human Genome Project and the storage and use of genetic information (Anderson 1994, CookDeegan 1994) and agricultural resources (Shiva 1994). From a purely competitive position it would seem that patenting of gene sequences or indigenous germplasm would promote innovation, yet many have argued that there should be limits on what might be patented even if this constrains the development of some innovative areas of research and development (McNally and Wheale 1998).

At an international level, there has been an attempt—through GATT’s (General Agreement on Tariffs and Trade) trade-related intellectual property provisions (TRIPS)—to stabilize and secure intellectual property rights (IPR) in newly industrializing countries and those of postsocialist central and eastern Europe. The GATT enables richer states to impose trade sanctions on those that fail to conform to TRIPS. This indicates that although the harmonization of IP regimes globally may be an important requirement for globalized innovation systems, the tension between global and national interests is likely to prevail. This has been especially apparent in relation to developing countries’ desire to protect their indigenous natural and cultural heritage, and to control how both are translated into knowledge resources over which they have collective rights. In effect, this is to challenge the move made by global corporations and organizations to define the meaning of these resources in such a way that they become commodifiable forms of property owned by private interests. This led to the Biodiversity Treaty of 1992 that recognized the rights of countries in the poorer South to conserve and sustain their genetic resources. The impetus behind the Treaty was the growing concern over the way in which countries in the North have been exploiting the natural resources of the South—such as the fauna and flora on which new drugs might depend—and then selling these products protected by patent. The Treaty has, however, had only limited effect in addressing the poorer countries’ concerns. The World Intellectual Property Organisation (based in Geneva) has sought to resolve these tensions, but with little or no success.

2. The IP System At The Institutional Level

Economic policy in all advanced industrial countries has sought to enhance innovation by encouraging those who produce knowledge to exploit their intellectual property more effectively. This has had an important effect in bringing a wider range of institutions into closer contact with the IP system, notably small to medium sized enterprises (SMEs) and universities.

Government policy in advanced industrial states has been to favor the needs of SMEs but to regard them as poor defenders of their own interests. In part this simply reflects the dependency of many SMEs on larger corporate actors in an economic supply chain. They are unlikely to have the financial resources to defend their claims against infringement by larger companies. Nevertheless, the importance of small firms in general to innovation and employment is well established. In such circumstances, SME firms and their position within the innovation system takes on increasing importance. Evidence shows that they are much more likely to protect their IP through being faster to the market, technical encryption of knowhow, strong ties with customers, and so on, rather than deploying formal IP rights (Rappert et al. 1999).

Universities and other public sector institutions engaged in research and development are also central to recent IP-related science policy. A powerful assumption since the early 1980s in both Europe and the US has been that technology transfer and innovation can be enhanced within an economy by raising the incentive within universities to exploit their own research, and to do this by devolving to them intellectual property rights that result from the publicly funded research they conduct. In the US, legislation introduced in 1980 (the Stevenson–Wydler and Bayh–Dole Acts) gave universities the rights to patents derived from federally funded research. This change (mirrored in many other countries since), coupled with increased industrial sponsorship of university research, set in train a growth in patenting such that patents filed by universities quadrupled between 1971 and 1989 in the US and continue to show rapid growth there and across Europe. (Japan has until very recently prevented its universities owning patents.) There is, however, considerable debate over whether this commercialization of university research, while generating some (often only modest) income, works against the idea of universities providing ‘public good’ knowledge or mistakes the real practical value of university research (Pavitt 1998). Moreover, concern has been expressed that universities are being restricted in their use of patented processes or (in the US) ‘discoveries’ by firms holding the IP rights to them. For example, those working in genetics research find that, to continue work on the development of new tests, they have to pay high levels of license fee to use genetic material patented by firms.

Social science research (e.g., Packer and Webster 1996, ESRC 1998) has sought to explore the way in which scientists in universities engage with patenting, how they determine the novelty and scope of their results such that they may be most effectively patented, and how this compares with practice in industry. This showed that in order to identify, take out, and market a patent successfully, academic scientists have to develop skills and knowledge that they do not get directly from their training or work experience in the public sector. These include the ability to distinguish legal from scientific novelty and utility. Scientists’ judgment about novelty relates to a specific community of researchers within their field, not to the patent law’s definition of ‘prior art,’ which assumes a global, virtual stock of knowledge. Novelty claims in patenting are distinct from those of science inasmuch as they are positioned differently to previous work in the field, by claiming discrete ownership of ideas, rather than, as is normally the case in scientific work, showing how it builds on earlier work. What this research on patenting shows is that the meaning of novelty is never self-evident but the result of a whole range of interpretive steps, negotiations, and reconstructions of knowledge claims about authorship and priority rights (Boyle 1996) by a wide range of social actors. Moreover, in engaging with the IP system to commercialize their work university scientists must also demonstrate an ability to rewrite scientific work in patent style (Myers 1995, Webster and Packer 1995). They must have access to and the capacity to search and use patent literature, an ability and preparedness to work around existing patents, the capacity to delay or alter their academic publications, and the ability to communicate effectively with patent professionals and industrial liaison staff. Patenting, in other words, requires considerable investment in the elaboration, translation, and articulation of claims through various social agents: it is never simply a matter of a purely technical adjudication of what might be deemed to be legally ‘novel.’ Ultimately, though, the role of law is crucial in determining whose claim to intellectual property will be upheld (Jasanoff 1995). Even so, courts themselves draw on a repertoire of interpretations relating to conventions about novelty, identity, and the boundaries between objects as the product of ‘invention’ and to be ‘found in nature.’

New developments in multimedia technologies— such as the Internet, World Wide Web, digital communication, and broadcasting systems—are now adding even greater complexity to the interpretation of novelty and material rights. These developments are being shaped by global media groups associated with film, video, music, leisure, education, and e-commerce. International conventions that protect the IP rights of artists, composers, authors, and publishers will come under increasing pressure as copyright infringement will be more difficult to detect, or defend against, especially for smaller companies or individuals who have relied on national collecting agencies to secure royalty payments. It is clear that, here again, new technologies operating at a global level can short-circuit the protection the IP system affords.

Some new business sectors, especially the know- ledge-intensive business sector covering areas such as design, accountancy, architecture, management consultancy, and environmental services while sometimes using formal IP rights (such as design rights) more usually rely on informal means of controlling their core assets through working with trusted partners or establishing control over a particular area through strong networking relationships with clients and agencies. Protection through reliance on reputation and trust is regarded as equally if not more important for protecting innovation and competitiveness than are legal rights such as trademarks or patents.

The IP system has developed over the past 300 years to protect the rights of the innovator or artist and to achieve two ends: to reward the originator of the idea, yet to make that idea available to everyone else, through, for example, publication of the patent details carrying the design of the product. This system generally works well but is under increasing strain because of the more complex character of technological innovation today, the more complex patterns of research and development that may make priority claims to the inventive step more debatable, and the globalized nature of business that can create major tensions between countries, between multinational companies, and between states and companies. The globalization of interpretive debates surrounding patent claims merely echoes similar processes of the construction of and negotiation over claim and counterclaim made by social actors at more local levels, whether within the laboratory, the patent office, application, or court.

Bibliography:

1. Anderson C 1994 NIH drops bid for gene patents. Nature 263: 909–10
2. Boyle J 1996 Shamans, Software, and Spleens: Law and the Construction of the Information Society. Harvard University Press, Cambridge, MA
3. Christie A 1994 Designing appropriate protection for computer programmes. European Intellectual Property Review 11: 486– 93
4. Cook-Deegan R 1994 The Gene Wars: Science Politics and the Human Genome. Norton, London
5. ESRC (Economic and Social Research Council) 1998 Intellectual Property Research Programme. Swindon, UK (www.esrc.ac.uk)
6. Etzkowitz H, Webster A 1994 Science as intellectual property. In: Jasanoff S, Markle G E, Petersen J, Pinch T (eds.) Handbook of Science and Technology Studies. Sage, London
7. Etzkowtiz H, Webster A, Healey P 1998 (eds.) Capitalizing Knowledge. SUNY Press, New York
8. Hoffman G M, Karny G N 1988 Can justice keep pace with science? European Intellectual Property Review 12: 355–8
9. Jasanoff S 1995 Science at the Bar: Law, Science, and Technology in America. Harvard University Press, Cambridge, MA
10. McNally R, Wheale P 1998 The consequences of modern genetic engineering: patents, ‘nomads,’ and the ‘bio-industrial complex.’ In: Wheale P, von Schomberg R, Glasner P (eds.) The Social Management of Genetic Engineering. Ashgate, Aldershot, UK
11. Mellor J 1988 Patents and genetic engineering—is it a new problem? European Intellectual Property Review 6: 159–62
12. Myers G 1995 From discovery to invention: The writing and rewriting of two patents. Social Studies of Science 25: 57–106
13. Narin F, Hamilton K, Olivastro D 1997 The increasing linkage between US technology and public science. Research Policy 26: 317–30
14. Packer K, Webster A 1996 Patenting culture and the wheel of credibility. Science, Technology and Human Values 21: 427–53
15. Pavitt K 1998 Do patents reflect the useful research output of universities? Research Evaluation 7: 105–11
16. Rappert B, Webster A, Charles D 1999 Making sense of reluctance and diversity: Academic–industry relations and intellectual property. Research Policy 28: 873–90
17. Rothwell R 1992 Successful industrial innovation: Critical factors for the 1990s. R & D Management 22: 221–37
18. Shiva V 1994 Why we should say ‘No’ to GATT–TRIP. Third World Resurgence 39: 3–5
19. Shurmer M 1996 Standardisation: A new challenge for the intellectual property system. In: Webster A, Packer K (eds.) Innovation and the Intellectual Property System. Kluwer, Dordrecht, The Netherlands, pp. 47–64
20. Taylor P, Quintas P, Storey J, Tillsley C, Fowle W 2000 Flexibility, Networks and the Management of Innovation. Open University Business School, Milton Keynes, UK
21. Webster A, Packer K 1995 Patents and technology transfer in public sector research. In: Kirkland J (ed.) Barriers to International Technology Transfer. Kluwer, Dordrecht, The Netherlands, pp. 43–64
22. Weil V, Snapper J W (eds.) 1989 Owning Scientific and Technical Information. Rutgers University Press, New Brunswick, NJ