The final presenter is Thomas Ward of the University of Maine Law School. Capital markets are changing; the emphasis on venture capital for innovative activity is declining. Personal property financing was once viewed the way IP financing is viewed now. In the past, managers were reluctant to use debt financing for innovation because of risk-aversion, difficulty in assessing devaluation of the asset, the preference for physical assets among secured lenders, and uncertain risks associated with potential bankruptcy. This is changing because as the patent system has improved, the ability of a patent to serve a signaling function has improved; patent valuation standards and secondary markets have developed; securitization is easier in a patent pool context where valuation is relatively clear; the revised Article 9 to the UCC is increasingly being applied to IP, making the securitization process easier and more certain and establishing a priority scheme. But how can the traditional IP system and open source avoid collision?
Author: David Opderbeck
I finished my presentation, which seemed to go well. Currently presenting is Yann Joly of McGill University. His focus is the intrinsic benefits of open source methods in biotechnology. Most of the fears about a biotechnology anticommons are unfounded. They story of Mertonian norms of science, an open scientific community, that has been hijacked by IP rights, is simplistic and false. [DWO Note — this is exactly right.] Meanwhile, the story of open source hasn’t been fully told. Is open source really a norm of communism? [DWO Note — this is an excellent point; open source needs to be positioned not as a socialistic or communistic norm, but as a community norm that complements free markets.] There are a number of possible cooperative strategies in biotechnology: patent pools, patent clearinghouses, defensive publishing, broad license terms, open source licensing. Recent empirical studies do not support the “tragedy of the anticommons” in biotechnology (see list in extended entry).
Known intrinsic benefits of open source methods include the following:
- Peer evaluation
- Rapid validation of findings
- Stimulate intellectual curiosity
- Maximize rational development
- Facilitate sharing of technical information
- Spread risk
- Reduce costs of production
- Attract volunteer (altruistic) labor
- Reduce transaction costs of license negotiation
- Facilitate technology transfer to developing countries
[DWO Note — this last point about technology transfer to developing countries is a key one concerning biotechnology]
The second presentation is by Elizabeth Rowe of the University of Florida. She notes that if universities act more like businesses in their patenting policies, they will experience the same litigation problems and costs as businesses, including IP-related employment disputes with faculty. [DWO Note — excellent point! Such externalities are critical to consider in the university patent context. This is an excellent presentation because it focuses on several real cases in which universities litigated patent ownership issues with faculty.]
There’s a guy in the audience with a bluetooth phone headset on his ear. It has a little blue blinking light. He looks like a Borg. He is on some kind of conference call, the noise from which is bleeding out — I can hear it a table away. Where’s the Enterpise away team when you need them?
The first presentation is by Kristen Osenga of the University of Richmond Law School. Her position is pro-patent. The primary obstacles to scientific rsearch are lack of funding and lack of access (due in part to patents but also because of budgetary constraints). The solution is not to weaken patents, but to encourage universities that hold research tool patents to act more like businesses and license out their technology; also universities should work out cross-licensing arrangements with other universities. [DWO Note — if the market isn’t encouraging this behavior now, why expect it to do so in the future?] Answer: universities lack the funding, knowledge, infrastructure, and culture to engage in tech transfer. [DWO Note — but the universities that hold the most patents — e.g., Stanford, California university system — don’t suffer from these problems]
This evening was the pre-conference dinner for the Maine Law School symposium, but today I drove over to New Hampshire in a rented Ford F-150 truck (cool!) and hiked Mount Jefferson in the White Mountains. Here are some photos from the day.
What Maine is famous for:
Interesting scrub near the alpine zone on Mt. Jefferson:
At the edge of the alpine zone: danger!
I live for danger (about 3500 feet up in this case)!
The view: mostly cloudy, unfortunately, but still lovely.
Categories
Symposium on Open Source Biotechnology
This week I’m speaking at the University of Maine Law School’s symposium, “Closing in on Open Science: Trends in Intellectual Property and Scientific Research.” My presentation is “A Virtue-Centered Approach to the Biotechnology Commons.” This presentation reflects the thinking I’ve been doing about virtue ethics generally and as applied to intellectual property policy. It should be fun.
Categories
That They May Have Life
The leaders of the Evangelicals and Catholics Together movement (“ECT”) have issued a new statement, “That They May Have Life.” I believe ECT is a critically important movement. Unlike the other statements on mutual social cooperation (The Christian Mission in the Third Millennium), the doctrine of justification (The Gift of Salvation), scripture (Your Word is Truth), and ecclesiology (The Communion of the Saints), this new statement does not cover matters of deep historical dispute between Roman Catholicism and the protestant movements that birthed Evangelicalism. However, it does articulate a deeper theological basis for promoting a “culture of life” than is sometimes apparent within Evangelicalism.
Evangelicals sometimes focus on issues such as abortion only in terms of whether the Bible specifically prohibits the activity — in other words, only in deontological terms. It is important to consider and obey express Biblical prohibitions, of course, but that is only a start. We need to ask why such prohibitions exist and then to extend the principles they represent in the broader context of our complex world. That They May Have Life does this with reference to a broad notion of Christian humanism. I believe this concept is vital for a robust Evangelical philosophy of law and public policy. That They May Have Life summarizes Christian humanism as follows:
we contend that the public policies pertinent to the defense of the humanum are supported by reasons that are accessible to all and should be convincing to all. The term “humanism” is frequently employed in opposition to Christian faith, as in the phrase “secular humanism.” We propose a deeper and richer humanism that is firmly grounded in the bedrock of scriptural truth, that is elaborated in the history of Christian thought, that is in accord with clear reason, that honors the best in our civilization’s tradition, and that holds the promise of a future more worthy of the dignity of the human person who is the object of God’s infinite love and care. This more authentic humanism is in no way alien to Christianity. There is in world history no teaching more radically humanistic than the claim that God became a human being in order that human beings might participate in the life of God, now and forever.
There is much else of great value in this document, as well as a few points that perhaps could be subject to some fair question. This “humanistic” Christian anthropology, however, is a clear-toned bell that should ring through Evangelical (and Catholic) churches of every description.
Some golfing buddies and I were trying to decide whether to play a course close to home or a course that is $20 cheaper but an hour away. We were discussing whether the “love bank” credits with our wives for playing closer to home and thus getting home for dinner were worth the additional $20 in green fees. To provide a more empirical basis for this decision, I devised the following (admittedly sexist) formula for determining the monetary value of “love bank” credits. (Actually the formula determines the marginal value of adding additional love bank credits to an existing love bank.)
I participate in an email list called “Cyberprofs” (teachers and scholars of the law relating to cyberspace). As part of a long discussion on how SSRN affects scholarship, we decided to start an “open source” distributed law review article. The utterly ridiculous results are available on the An Academic Experiment blog. As you can see, law professors as a class have too much time on their hands and too much snark in their veins. Behind the humor, though, there’s a hint of the philosophical divide among cyberprofs — the “exceptionalists,” who think cyberspace is something ontologically different than the brick-and-mortar world, and the “anti-exceptionalists,” who think of the Internet in more instrumentalist terms.