Designing the Microbial Research Commons Proceedings of an International Symposium (2011) / Chapter Skim
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9. Contracting to Preserve Open Science: Lessons for a Microbial Research Commons
9. Contracting to Preserve Open Science: Lessons for a Microbial Research Commons
Pages 69-76
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From page 69... ...
I focus on patented biomedical research tools, which can encompass anything from extracted and purified human embryonic stem cells to genetically modified organisms, including genetically modified microbes. The relevant theory here -- which, of course, must be empirically verified -- is that patents on research tools constrain access to these resources, thus inhibiting basic scientific research and the development of valuable technologies and industrial applications.
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From page 70... ...
While the Bayh-Dole Act complicates and arguably prohibits direct enforcement of these guidelines, NIH considers compliance with its principles and guidelines in reviewing grant proposals and awarding research funds. The model that arises is one where NIH provides some sort of consideration, in this case money, to a downstream resource developer, and in return that downstream developer is expected to provide qualified access to proprietary resources for research purposes.
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From page 71... ...
For example, here is some boilerplate language from an exclusive license at Harvard University: "Harvard will retain the right, for itself and other not-for-profit research organizations, to practice the subject matter of the patent rights for internal research, teaching and other educational purposes."28 So, when Harvard exclusively licenses out some patented invention, it retains the right to use that invention for research purposes and to allow other nonprofit institutions to engage in similar activities. In addition to demonstrating how licenses can enhance access to proprietary resources, university practice can inform the design of a microbial commons in other ways as well.
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From page 72... ...
Many public institutions enjoy significant leverage in this field, such as government agencies, universities, private foundations, and even scientific journals. One promising model would involve public institutions providing some sort of material support (or, in the case of journals, publishing 29 Howard Hughes Medical Institute, Research Policies: Research Tools (SC-310)
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From page 73... ...
In the patenting and licensing sphere, NIH has played a central role in standardizing the ways in which various entities promote access to patented biomedical research tools. Is there an analogous body in the microbial research commons area, and to what extent are these challenges exacerbated because of the global dimensions of this initiative?
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From page 74... ...
To summarize, I believe the microbial research commons is eminently feasible, and I have suggested that it can benefit from related experiences to create a biomedical research commons in the intellectual property context. We already have relevant experience dealing with multiple-purpose assets that are useful in both basic research and commercial applications.
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From page 75... ...
The difficult part is apportioning royalties when a CIRM grant recipient combines state money with funding from other sources. CIRM recognizes that there are often multiple inputs to a commercial product, and CIRM's claim relative to other upstream funders tends to be determined on an ex post fashion based on proportionality analysis.
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