Abstract
Academic research is increasingly being commercialised. This commercialisation trend has different dimensions, among which the massive increase of patenting and licensing activities by universities, the significant growth of industry funding of academic research via so-called contract research, and the creation of ever more ‘spin-out’ companies. All this is strongly encouraged by governments throughout the Western world. The commercialisation trend has far-reaching consequences for access to the fruits of academic research and so the question arises whether the current policies are indeed promoting innovation or whether they are instead a symptom of a pro-commercialisation culture which is blind to adverse effects. This paper discusses the justifications that are given for the current policies and raises the question to what extent they threaten important academic values. Next, the question will be addressed as to why policymakers seem to ignore the adverse effects of the commercialisation of academic research. Finally, a number of proposals for improving university policies will be made.
This text served as the basis for a talk given in Gent on March 6th, 2008, at the symposium that led to this book.
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Notes
- 1.
Statement on Academic Freedom, May 26th, 2005, signed by the Presidents of the following (and more) universities: Columbia, Oxford, Yale, Harvard, Princeton (available at http://www.columbia.edu/cu/president/ommunications%20files/globalcolloquium.htm).
- 2.
Mowery et al. (2004), p. 4. For a detailed discussion of the evolution of the patent policies and practices of US universities from 1925 to 1980, see Mowery et al. (2004), Chap. 3. Those universities who did get involved with patenting and licensing did so indirectly, i.e. they ‘outsourced’ these activities to a third party. Concerns about direct involvement with patenting were one of the reasons why the Research Corporation was established in the US in 1912. See Mowery et al. (2004), Chapter 4.
- 3.
- 4.
Bagley (2006), p. 217, referring to the summary of the 2004 Licensing Survey by the Association of University Technology Managers (available at www.autm.net).
- 5.
2006 Licensing Survey US. See Association of University Technology Managers (www.autm.net).
- 6.
Ritchie de Larena (2007), Part V, opening paragraph.
- 7.
See the 2005 Annual Survey Report by ProTon Europe, a European network of ‘Knowledge Transfer Offices’ and companies affiliated to universities and other public research organisations, available at http://www.protoneurope.org/news/2007/Articles/2005AnnualSurveyReport.
- 8.
No information is given on the number of patents granted.
- 9.
As shown by ProTon Europe’s comparison with FY2004.
- 10.
See the 2006 Annual Survey Report by ProTon Europe.
- 11.
‘Research tool’ is used in this paper since it is the term most widely used in this context. It is, however, somewhat misleading since it brings to mind the image of the machines and equipment used in the lab by researchers. It has long been the case that universities buy lab equipment from commercial suppliers when it is available, whether or not the suppliers have patented it. Our particular concern in this paper is with research methods which could be performed without specialized equipment and with patented apparatus and materials which are only available, if at all, under conditions universities find hard to meet, e.g. inflated cost or demanding licensing terms.
- 12.
- 13.
- 14.
- 15.
National patent laws differ as to whether they include a research exemption or not, and how narrow or broad it is. See e.g. Cook (2006).
- 16.
John M.J. Madey v. Duke University, 307 F.3d 1351 (Fed. Cir. 2002).
- 17.
The traditional construction goes back to two famous nineteenth century decisions. In 1813 Justice Story ruled in Whittemore v. Cutter that: “[I]t could never have been the intention of the legislature to punish a man, who constructed … a machine merely for philosophical experiments, or for the purpose of ascertaining the sufficiency of the machine to produce its described effects”. Whittemore v. Cutter, 29 F. Cas. 1120 (C.C.D. Mass. 1813). In 1850 it was decided that patent holders cannot sue for infringement: “[a person whose] use is for experiments for the sole purposes of gratifying a philosophical taste or curiosity or for instruction and amusement”. Gayler v. Wilder, 51 U.S. (10 How.) 477, 497 (1850).
- 18.
This goal may better be obtained via a general tax. See Lemley (2007), note 27 and the reference given there.
- 19.
I am grateful to Julian Cockbain for making this point.
- 20.
Abramowicz (2005). Of course the problem of the delay between patent grant and commercialization is exacerbated by the increasing tendency of patent offices to grant ‘embryonic’ patents, i.e. the abovementioned patenting of ‘upstream’ research, especially by universities.
- 21.
The Universities and Small Business Patent Procedures Act, Public Law 96–517, 96th Congress, 94 Stat. 3015 (1980), enacted as 35 U.S.C. §200, et seq.
- 22.
‘Short term’ solutions are understood here as opposed to solutions which would imply major modifications of patent laws, e.g. modifications of the novelty requirement for patentability, as proposed in Bagley (2006), or modifications of the requirement of susceptibility of industrial application. While such longer term solutions are necessary, the urgency of the matter is such that short term solutions should be investigated and put into place with minimum delay.
- 23.
This section has benefited greatly from my discussions with Julian Cockbain.
- 24.
Stanford University Office of Technology Licensing, Our policy, available at: http://otl.stanford.edu/inventors/policies.html.
- 25.
MTAs restrict the use of materials and data. An MTA is a contract between the donor and the recipient of a material which the donor is providing to the recipient. Frequently an MTA may forbid the recipient to analyse the material or to seek intellectual property rights in anything resulting from use of the material, and to publish results of experiments using the material. Some MTAs go so far as to provide that the intellectual property rights resulting from the recipient’s use of the material shall belong to the donor. MTAs are becoming more and more widespread, and they are imposing increasingly complex and onerous terms. They typically forbid researchers receiving material to share that material with other institutions and may require pre-publication review of research results. As they are contractual agreements (e.g. between a university and company or between different universities), MTAs are not geographically or temporally limited. In this respect they differ from patents and can have even more far-reaching effects. See Streitz and Bennett (2003). See also Pool (2000).
- 26.
One suggestion requiring change in national law would be to make the research exemption to patent infringement explicitly cover all research by not-for-profit or public bodies, including universities, and hence shield them from litigation. Perhaps this should even extend to all areas of intellectual property, including in particular copyright. One example of a remedy necessitating agreement at an international level would be to adopt a one year grace period, similar to that already in US patent law. This would permit researchers to publish before patenting and hence would facilitate scientific openness. These and other proposals cannot be elaborated here.
- 27.
See inter alia Washburn (2005) and Smith, Richard (2006), for several examples. One of the particularly striking examples discussed by Washburn (pp. 19–20) relates to the long delay in publication of findings on the effectiveness of different thyroid medications. Betty Dong, a scientist working at the University of California at San Francisco (UCSF) discovered in 1990 that Synthroid, a drug which at that time was taken by eight million Americans every day, was no more effective than three cheaper drugs. The pharmaceutical company which sponsored her research – Boots Pharmaceutical, which later became Knoll Pharmaceutical Co. – spent several years vigorously trying to prevent the publication of these findings, arguing that Dong’s research was flawed. Her research results were subjected to two investigations and only very minor problems were found. The conclusion from these investigations was that Boots/Knoll was harassing Dong because it did not want the public to learn these results. What Dong’s employer UCSF did was at least as alarming. At first the university’s lawyers agreed that Dong could submit her findings to the Journal of the American medical Association (JAMA), even though her research contract, which was approved by the university, required the company’s approval for publication. JAMA’s reviewers accepted the article and it was scheduled for publication on January 25, 1995, but a few weeks earlier Boots/Knoll threatened to sue UCSF. The university then urged Dong to withdraw her manuscript and she did. A while later a journalist from the Wall Street Journal learned of Dong’s study and wrote an article on what had been happening. This lead to pressure from the Food and Drug Administration on Boots/Knoll and ultimately, 9 years after Dong completed the research, her results were published in the JAMA. As noted by Washburn: “[This] was a huge victory for Boots/Knoll, enabling the company to sustain Synthroid’s dominant position in a $600-million market for drugs to control hypothyroidism. For the general public, it was another story. If an equally effective generic or brand-name preparation were substituted for Synthroid, Dong and her colleagues estimated that people suffering from hypothyroidism and other conditions would have saved $365 million annually.” See Washburn (2005), p. 20 and the references given there.
- 28.
American Association of University Professors, 1940 Statement of Principles on Academic Freedom and Tenure, With 1970 Interpretive Comments, in Policy Documents & Reports, appendix 1 (9th ed. 2001), p. 3, quoted in Bagley (2006), p. 9.
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Sterckx, S. (2012). Enclosing the Academic Commons – Increasing Knowledge Transfer or Eroding Academic Values?. In: Vanderbeeken, R., Le Roy, F., Stalpaert, C., Aerts, D. (eds) Drunk on Capitalism. An Interdisciplinary Reflection on Market Economy, Art and Science. Einstein Meets Magritte: An Interdisciplinary Reflection on Science, Nature, Art, Human Action and Society, vol 11. Springer, Dordrecht. https://doi.org/10.1007/978-94-007-2082-4_5
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