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



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



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


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


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?


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?


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


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?


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?


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


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 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


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?


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


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


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)


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?


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?


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


replacing assumptions with analysis: use of transdisciplinary probes raleigh, june 2004 wen adams...

Documents

presentation of probespart

patent rights

patent system

diffusion of information

use probes

research exemptionpart

research priorities

developed states