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Abstract

This article explores possible mechanisms for ensuring that the innovation goal of the patent system is achieved by facilitating better use of patented inventions in biotechnology, taking into account the complex relationships between owners and users. We argue that a measured approach is necessary, reflecting the delicate balance of innovation. The patent system itself already provides some mechanisms, discussed briefly in the first part of this article. However, we see a benefit in expanding patent owners’ repertoire to include industry-driven mechanisms that may be more finely tuned to the needs of particular industry participants or groups of participants. Examples include patent pooling, clearinghouse mechanisms and open source licensing. Such mechanisms may be adjusted to take account of trial and error learning in specific industry contexts, and may engender greater commitment on the part of industry than involuntary, ‘top down’ regulation. Such private mechanisms for ordering transactions among intellectual property holders would complement rather than displace existing public mechanisms. The law is necessarily a blunt instrument; where applicable, the methods we canvass in this article promise greater efficiency through superior flexibility and specificity.

Item Type:	Article
Authors/Creators:	Nicol, D and Hope, J
Journal or Publication Title:	Law in Context
ISSN:	0811-5796
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