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Yann Joly

Abstract

Tracing its origin to Greek antiquity, intellectual property has become an institution in modern legal systems worldwide. This growing importance of intellectual property was confirmed with the 1994 adoption of the Trade-Related Aspects of Intellectual Property Rights Agreement by the World Trade Organization (WTO), which harmonized the rules of intellectual property amongst the various members of the international community on the model of developed countries. However enshrined in the legal tradition, intellectual property law has also had its share of detractors and has recently come under severe criticism. The exercise of intellectual property rights in such diverse fields of creation as music, information technology, and biotechnology has met with intense opposition from a growing number of detractors. In the field of biotechnology, the critique has become important enough to arouse the attention of a number of legislative bodies and propel the creation of an important corpus of normative documents (recommendations, position statements, declarations, etc.). Surprisingly, this legislative outburst, aimed at correcting certain deficiencies of the patent system, was driven by a number of theoretical hypotheses that were unconfirmed by the available evidence. Various solutions have been proposed in these normative documents to palliate certain presumed failings of the patent system: compulsory licenses, adoption of moratoria on gene patents, parallel imports, and more restrictive evaluation of patent applications. Alongside these policy solutions, the use of cooperative strategies to facilitate the use of patented inventions has become a particularly popular alternative in academia. It has been suggested that cooperative strategies-such as open source, patent pools, and defensive publication-could correct the inadequacies generated by the application of the patent system to biotechnological inventions without requiring a major change in current intellectual property laws. Thus, the main justification invoked in favor of the introduction of open source approaches in biotechnology is that it would remedy the various failings of the patent system. The numerous articles discussing these approaches all follow a similar structure. The author usually begins by discussing the idyllic culture of open science that is said to have prevailed in the pre-1980 academic biomedical research field, and expresses his or her regret at the recent commercialization of academia and its adverse effect on fundamental research. He or she then advances his or her central argument in favor of open source as a solution to the possible existence of an “anticommons effect” in biomedical research that could slow down or possibly immobilize the progress of science. After reassuring readers that the introduction of open source approaches would likely prevent such a catastrophic scenario, the article ends on a positive note by evasively mentioning some of the more intrinsic benefits of these approaches. It is not necessarily prudent for proponents of cooperative strategies to use, as a central part of their argumentation, a negative discourse that focuses largely on hypothetical risks unsubstantiated by the available empirical evidence. A better strategy would be to identify and promote the wealth of intrinsic benefits associated with these strategies in order to keep them attractive, independent from any evaluation of the patent system.

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