[Ip-health] Peter Lee: patent commons

[Aidan Hollis]

May be of interest to many on the list:

Toward a Distributive Commons in Patent Law
Peter Lee, University of California, Davis School of Law

Wisconsin Law Review, Forthcoming
UC Davis Legal Studies Research Paper No. 177

Abstract:
Patents both promote the development of health technologies as well as
constrain access to them. Access constraints on patented medicines,
diagnostics, and agricultural innovations can severely compromise
human health, particularly for low-income populations. To help address
this challenge, this Article explores mechanisms for integrating
distributive safeguards in the patent system in a manner consistent
with strong property rights and private ordering. Finding existing
patent doctrine inadequate, this Article examines solutions arising
from the developmental histories of particular health technologies. In
particular, this Article argues that public institutions, which
contribute enormous amounts of "scientific capital" - money, labor,
and bodily materials - to life sciences research and development, can
effectively leverage these contributions to enhance access to
downstream patented technologies.

By providing vital capital, government, academic, and nonprofit
entities both weaken the economic need for exclusive rights as well as
obtain limited co-ownership stakes in resulting inventions. By
exercising this leverage, public institutions are helping to create a
"distributive commons" that enhances access to patented health
technologies for low-income populations. This Article surveys existing
practices, providing prescriptions to address the chilling effects and
technical competence concerns that undermine distributive efforts. It
concludes by challenging prevailing theoretical preferences for
individual rather than communal ownership of property, highlighting
the advantages of public-private co-ownership of nonrival resources.

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1408813

Aidan Hollis
Professor of Economics

University of Calgary, 2500 University Dr NW Calgary AB T2N 1N4 Canada
tel: +1 403 220 5861  fax: +1 403 220 5861
email: ahollis@ucalgary.ca
web: http://econ.ucalgary.ca/hollis.htm

Incentives for Global Health
http://www.healthimpactfund.org