Biotechnology and Genetic Resource Policies / Brief 4 / Accessing Other People’s Technology
by Carol Nottenburg, Philip G. Pardey, and Brian D. Wright
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Public and private nonprofit institutions worldwide engaged in agricultural research and biotechnology are increasingly active participants in intellectual property transactions, interacting with the for-profit sector and even spawning private entities of their own. Notably absent from the group of nonprofit institutes seeking patent protection are the 16 centers of the Consultative Group on International Agriculture Research (CGIAR). Located primarily in developing countries, only a few centers have obtained patent protection for their inventions.
Nonprofit research institutions are not in the business of selling products to consumers. If they are to realize a return on their investment, they must sell rights to their technologies to commercial entities or other research institutions rather than make them freely available. A nonprofit entity may, for example, exclusively license technology to a commercial partner, license the technology itself nonexclusively, or use the technology as the foundation for a spin-off company.
For all the benefits that nonprofit institutions receive from intellectual property, these same institutes are notorious for using other people’s patented technologies without permission. A review of the intellectual property policies of several large universities in the United States with active licensing offices reveals that none discusses the need to obtain permission to use patented methods and materials, and only one provides guidelines on copying material that is copyright protected (Nottenburg, Pardey, and Wright 2002). In contrast, for-profit entities—especially in biotechnology—are not only generally more cognizant of intellectual property rights and rules, but also proactive in obtaining licenses, options for licenses, or collaborations that will assure their “freedom to operate,” that is, their ability to practice or use an innovation.
Nonprofit research organizations need to develop and implement policies regarding use of other people’s technologies. With a special emphasis on agricultural biotechnology, this brief discusses policies of intellectual property protection, de jure (by right) and de facto research exemptions, and the ways that research at nonprofit institutes fits with, and is at odds with, these policies and exemptions. We also present an overview of the steps necessary to abide by others’ intellectual property rights (IPRs) and show how most nonprofits are ill equipped to undertake such measures. Finally, we present strategies for pursuing different options to obtain rights to use other people’s technologies.
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