Intellectual Property Law

As our loyal readers know, the IP Blawg is keenly interested in the progress of California?s Institute for Regenerative Medicine (?CIRM??).  While the trial court considering the validity of Proposition 71 received closing arguments this week, a diverse group gathered at Berkeley?s Boalt Hall School of Law last week for a conference on California?s Stem Cell Initiative to learn about and discuss a variety of legal and policy challenges presented by state funding of stem cell research.

The IP Blawg was there, and enjoyed the panel on ?Getting Intellectual Property Rights Right:  What Model Should Be Adopted??  Panelists began by pointing out that while California?s voter-approved $3 billion in stem cell research funding is significant for stem cell advancement, the absolute dollar amount is dwarfed by overall federal funding for medical research provided by the National Institutes of Health.  The issues surrounding the ownership of intellectual property developed through research funded by Proposition 71 frequently focus on the presumed pot of licensing gold at the end of the research rainbow, but again, that may be years away.

In the meantime, Merrill Goozner, from the Center for Science in the Public Interest, advocated the somewhat provocative notion of an open source patent pool.  As the first directed research campaign at a state level, he said, CIRM has a chance to re-think first principles regarding technology transfer, and to deal with the disincentives to drug research, including the high transaction costs related to ever-growing patent thickets.  According to Goozner, an open source patent pool could be a requirement of government funded research, would provide one-stop licensing, and could facilitate collaboration by quickly disseminating research results.  Instead of monopoly patent rights, Goozner proposes instituting a ?prize system,? where the financial prize awarded to the researcher is a function of the medical value inherent in the invention, the size of the potential patient population to which the invention is directed, and the difficulty in finding the ?cure? represented by the invention.  A prize system would theoretically create a market for innovation separate from the current health care finance system (where new therapies come in at the highest prices), and cut out the revenue that presently is directed toward marketing.  While the details were vague, Goozner?s proposal allows for the flexibility of exclusive licenses for purposes of eventual clinical trials. 

Not surprisingly, panelist Rob Merges from Boalt Hall supported the concept of patenting stem cell research, and suggested that ?strings? should be attached to research grants to require quick dissemination of research.  Overall, the panel discussion was broad-ranging, and the audience jumped in for a lively Q&A at the end. 

The litigation challenging Proposition 71 has at least temporarily blocked California?s ability to float the bonds to fund the research, but the silver lining in that cloud may be that it has provided CIRM and the state of California an unanticipated window of opportunity to refine the issues of intellectual property ownership.  The IP Blawg will keep you posted on further developments.