Designing the Microbial Research Commons Proceedings of an International Symposium (2011) / Chapter Skim
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6. A Compensatory Liability Regime to Promote the Exchange of Microbial Genetic Resources for Research and Benefit Sharing
6. A Compensatory Liability Regime to Promote the Exchange of Microbial Genetic Resources for Research and Benefit Sharing
Pages 43-54
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From page 43... ...
A good selection of known and scientifically validated microbial resources are held in hundreds of public culture collections around the world, which have accumulated these precious resources over a long period of time. Many other semi-public collections are held by government departments, especially in the U.S., and by universities around the world, who assemble materials for specialized research purposes.
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From page 44... ...
To this end, single laboratories or research units informally exchange biological resources among themselves for public research purposes on the basis of mutual trust and reciprocally recognized quality controls, without entering into any formal legal undertakings. In effect, this informal network, which antedates the use of MTAs and reportedly still accounts for approximately 60 percent of all microbial materials exchanged, converts the private goods of the single participants into a type of "club goods" available to trusted members.
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From page 45... ...
Enforcement of such a standard-form agreement would be the province of a governing body or trusted intermediary that is generally responsible for oversight and management of the projected microbial research infrastructure. A key premise underlying this initiative is that any deposit in the proposed materials semicommons does not forfeit all rights to benefit from downstream commercial applications, if they should emerge later on.
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From page 46... ...
But fears of losing unknown future commercial opportunities could undermine the prospect of these potential research gains, so we address this concern directly with a built-in provision for benefit sharing from unknown future downstream commercial applications. That is, we would build a so-called "compensatory liability rule" for downstream commercial applications into the system, yielding equitable compensation for the providers or their designate representatives under international law, while fulfilling international obligations under the CBD.
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From page 47... ...
To internalize and capitalize on these gains, we seek not only to develop a broad research commons, but also to encourage investment in downstream commercial applications by careful use of ex ante liability rules that do not impede downstream patents on end products. Liability rules are "take and pay" rules (like the non-exclusive licenses covering the Cohen–Boyer patents)
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From page 48... ...
This approach provides an intermediate zone, where Creative Commons licenses are insufficient but exclusive rights and concomitant restrictions on research would impose unnecessary overkill in relation to the still uncertain value of the upstream inputs. Nevertheless, the liability rule is triggered via standard-form licenses that keep transaction costs low, in the manner of a Creative Commons license.
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From page 49... ...
2005. Using intellectual property rights to preserve the global genetic commons: The International Treaty on Plant Genetic Resources for Food and Agriculture, in International Public Goods and Transfer of Technology Under a Globalized Intellectual Property Regime (K.E.
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From page 50... ...
There is some recent research that came up at the COMMUNIA workshop in June of this year. There were some economists from Germany who had done very good empirical research verifying the real importance of this reciprocity hypothesis, and I am a little nervous about undermining the reciprocity gains expected from membership in the pool at the beginning, until it is established.
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From page 51... ...
When I first read about this provision that you put in, I said, No, this is not an ex-ante liability rule. I am not a lawyer, but from what I have learned from working with lawyers, the liability rules work on the basis that you show essentially that you have been injured by the use.
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From page 52... ...
REICHMAN: Yes and no. It is a form of intellectual property rooted in liability rules rather than exclusive rights.
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From page 53... ...
They divide the proceeds from the liability rule, but the winner gets a negotiated contract with the patentee, and the losers get a share of the return based on the ex ante liability rule. In our "Pathways" article, we suggest that that is a workable way to defer a lot of the risks, to spread the costs of the risk premium that people are getting because if you had one of the relevant small molecules but not the big one, at least you would get a small piece of the action, and that helps you cover the losses when your clinical trials go bad.
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