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Transcript of Replacing Assumptions with Analysis: Use of Transdisciplinary Probes Raleigh, June 2004 Wen Adams...
Replacing Assumptions with Analysis:Use of Transdisciplinary Probes
Raleigh, June 2004
Wen AdamsMcGill Faculty of Law
Replacing Assumptions with Analysis
Part I: Presentation of the probes
Illustrative examples
Part II: Using the probes to analyze problemsSchmeiser case study
Part I: Why Use Probes?
More comprehensive and effective analysis
For better answers, need to ask better questions
Moving beyond incentives-access paradigmIdentify new relationshipsIdentify unintended consequences
Moving beyond analysis paralysisGenerate better research questions and discussion points to bridge the comprehension gap
Part I: Presentation of Probes Part II: Using the Probes
Assumptions vs. Probes
AssumptionsAddress problems by referring to abstract principles
Lack of ContextInnovation is a good thing
Patents encourage innovation
In any conflict where innovation is affected, patent rights must be protected
Part I: Presentation of Probes Part II: Using the Probes
Assumptions vs. Probes
ProbesEvaluate problems in context
Solve problems rather than applying principlesIdentify relationships
Identify affected interests
Identify implications and unintended/unanticipated consequences
Consider possible (and alternative) solutions
Part I: Presentation of Probes Part II: Using the Probes
Assumptions vs. Probes
Transdisciplinary AnalysisSimultaneous perspectiveEconomics, ethics, management, law
Contextual AnalysisAvoid unintended consequencesRecommendations to meet a variety objectivesNo universal decreesAllows for flexible (and yet still predictable) policy alternatives
Part I: Presentation of Probes Part II: Using the Probes
What are the probes?
1. Distributive justice
2. Innovation management
3. Knowledge management
4. Integrity of living things
5. Sovereignty
6. Economic efficiency
7. Risk management
Part I: Presentation of Probes Part II: Using the Probes
Distributive Justice
DescriptionDoes a given patent regime provide a just allocation of goods, e.g., revenue, access to technology
•Who benefits, by how much, and who bears the costs?•Are the competing interests appropriately resolved?
ExampleTRIPS Agreement
•Did it maintain or create comparative advantage for developed states?
•Does linkage-bargain diplomacy work for developing states?
Part I: Presentation of Probes Part II: Using the Probes
Innovation Management
DescriptionNexus between patent system and governance of innovation
•How should research be funded – public, private or mixed?
•What is the interaction between patents and financing of not only R&D but entire supply chains?
ExampleUniversities and granting agencies rely heavily on patent system to produce innovation
•Is it working?•Do patents skew research priorities?
Part I: Presentation of Probes Part II: Using the Probes
Knowledge Management
DescriptionHow do patents affect the diffusion of information?
Is information transferred between firms? Within states? Between states?
How is information transferred? By licensing, sale, foreign direct investment?
ExampleLicence agreements may alter presumed optimal level of information diffusion put in place through patent disclosure requirements
Can require licensee to waive rights to statutory exemptions, e.g., research exemption
Part I: Presentation of Probes Part II: Using the Probes
Integrity of Living Things
DescriptionHow does patenting affect living organisms?
•Whether species integrity (human and non-human) has inherent value
•Whether biodiversity can be maintained
ExampleIs a genetically modified mouse a mere “composition of matter”?
Does a principled distinction exist between genetic modification of plants and traditional breeding techniques?
Part I: Presentation of Probes Part II: Using the Probes
Sovereignty
DescriptionAre states able to exercise unconstrained decision-making authority to meet domestic public policy objectives?
•De jure regulation•De facto economic and political reality
ExampleBiotechnology companies claim that patent “havens” will result in reduced levels of foreign investment, as well as domestic flight
How to explain offshore research and development?
Part I: Presentation of Probes Part II: Using the Probes
Economic Efficiency
DescriptionPatent protection a necessary incentive because intangible assets are non-exclusive and non-rivalBut does it make sense for patent system to operate as “one size fits all”?
ExampleDomestic
•Incentive effect not constant across industriesInternational
•Optimal level of protection varies depending upon level of development
Part I: Presentation of Probes Part II: Using the Probes
Risk Management
DescriptionManagement of the various forms of environmental risk and potential harms to human health and biodiversity
•Precautionary principle•Principle of future generations
ExampleOrganic certification of canola in Saskatchewan may no longer be possible
Part I: Presentation of Probes Part II: Using the Probes
Part II: Using the Probes to Analyze Problems
Case Study: Schmeiser
Factual background
Supreme Court of Canada decision•Assumes patent protection a necessary incentive
Reconsideration of issues using probes•Distributive justice•Economic efficiency
Part I: Presentation of Probes Part II: Using the Probes
Schmeiser: Factual Background
Monsanto has patent rights to gene and cells containing the gene
No patent right to whole plant possible in Canada
Contamination event (factual uncertainty)Schmeiser identifies genetically modified canola plants on his landSaves seeds and replants crop, but makes no use of herbicide-resistance
No contract in place between Monsanto and SchmeiserCan intellectual property rights be enforced to exclude Schmeiser from engaging in these activities?
Part I: Presentation of Probes Part II: Using the Probes
Supreme Court of Canada Decision
Monsanto wins on the law…Claims are valid
Case decided on interpretation of “use”, not scope of claims
Use includes furthering a business interest or obtaining a commercial benefit
But gains nothing on the facts…Monsanto made decision to seek accounting of profits
No profits derived from use of invention because Schmeiser did not make use of herbicide properties
Part I: Presentation of Probes Part II: Using the Probes
Implications for Patent Law
Indirect patent protection for plants
What has happened to “use”?“Use” interpreted in abstract terms to mean commercial return, not physical activity
Limited scope for innocent infringerTraditional rule that intention irrelevant makes no sense in circumstances of contamination and self-propagation
Part I: Presentation of Probes Part II: Using the Probes
Reconsidering the Result: Distributive Justice
Competing property rights
Common situation when intellectual property rights are embedded in objects of personal property
•Monsanto’s intellectual property rights in gene and cells containing the gene
•Schmeiser’s common law personal property rights in plants containing the cells (and genes)
Part I: Presentation of Probes Part II: Using the Probes
Reconsidering the Result: Distributive Justice
Where to establish the “ownership divide”?
Allocates the aggregated revenue stream of intellectual and personal property rights
No intellectual property rights in plants
Returns from patents should not include revenue from exploiting personal property
Does decision raise possibility that revenue may be misallocated between holders of intellectual and personal property rights?
Part I: Presentation of Probes Part II: Using the Probes
Reconsidering the Result: Economic Efficiency
It was never about the canola…Cannot examine economic efficiency of patent in isolation of the licence agreements
Economic return included sale of off-patent herbicide Round-Up•Effectively extended patent term of Round Up
Economic return also included licensing rather than sale of seeds
•Effectively displaces patent exhaustion
Overcompensation?
Part I: Presentation of Probes Part II: Using the Probes
Do the probes provide value-added analysis?Assumption-based analysis
Broad patent protection encourages innovation in agricultural biotechnology
•Upholding Monsanto’s patent rights economically efficient•Benefits society by encouraging socially useful innovation
Probes-based evaluationSupreme Court of Canada may have overcompensated Monsanto
•Need to take into account the effect of the licence agreements
No analysis beyond incentives-access paradigm•Did not address distributive implications of competing
property rights
Part I: Presentation of Probes Part II: Using the Probes