Category: Law and Policy

When Richard Land and Jim Wallis agree on a policy issue — and when conservative Baptists and left-leaning Menonites together advocate U.N. military action — you know something important is happening. Leaders from across the evangelical spectrum have endorsed Evangelicals for Darfur, an initiative that urges the U.S. to press for stronger sanctions and a more effective U.N. peacekeeping role in Darfur. This is an important, and fascinating, exercise of evangelical ethics in the public square. Too bad the U.S. has squandered so much of its moral, financial and military capital in Iraq. It will be hard for the U.S. to make any real difference in Darfur’s dire crisis.

The symposium has closed. It was a good trip and I made some good contacts. The “live blogging” experiment was fun, and helped me pay attention. I hope you enjoyed it.

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?

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]

Continue reading “Live Blogging: Open Science Symposium”

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 reported opinion in a patent infringement case was released not long ago. Notice that I’m listed as lead counsel for the winning side! I was very involved in this case when I was still at my law firm four or five years ago. My former partners continued to litigate the case after I left, leading to this judgment declaring the patent we were challenging invalid. I guess my name was still on some of the court filings. I can’t take credit for all the arguments that were made after I left, but the key admission by the inventor about the prior art was testimony I elicited at his deposition and on cross-examination at a previous court hearing. Cool!