Home > IP Topics Index > The Policy and Legal Environment for Innovation > Public Sector IP Management in the Life Sciences: Reconciling Practice and Policy—Perspectives from WIPO > Editor's Summary, Implications and Best Practices

This chapter directly addresses what all of the Handbook’s chapters wrestle with: the paradoxical pursuit of the public interest through private rights. Focusing on the life sciences, it asks how IP rights can be best managed to promote public welfare. It finds an answer not in the system of IP rights but in the judicious, skillful application of such legal mechanisms. Especially in regards to public sector institutions, the creative, skillful, and aggressive management of IP rights is essential for achieving public benefits from private sector capital and dynamism.

To accomplish this requires knowledge so that one can act flexibly. Relying on pre-drafted boilerplate license templates, for example, will very likely mean being blind to choices that could further the public interest. This chapter insists that IP management for the public interest should think beyond licensing arrangements, and it considers the full range of two continuums to help us imagine possibilities: degrees of exclusivity and degrees of market engagement. Anyone interested in how intellectual property can be harnessed to advance the public good will want to consult this chapter for the details of its approach.

The global IP system is becoming more geographically and culturally diverse, is being used more often by public-sector and non-profit entities, and is continually growing in importance in the life sciences. As more and more and more developing countries become part of the global IP system, they will be responsible for managing a growing stock of life-sciences intellectual property. This chapter offers a set of choices to guide the development of IP management policies for universities and research and development institutions and points to other publications that offer useful insights and advice.

The emphases in this chapter will surprise those who expect a rehashing of the usual IP management rhetoric. The indigenous innovation potential of developing countries is strongly endorsed, as is the value of the experience of local health practitioners, who are the heirs to generations of “clinical trials.” Overall, it insists on the inadequacies of a top-down approach to developing IP management policies. Such an approach will almost certainly ignore the unique strengths of a particular country, strengths that can be seized upon to proactively capture direct benefits. The internal, practical bottom-up view should inform the top-down theoretical and external view through a respectful dialogue between policy-conscious practitioners and practically-informed policymakers.

To demonstrate how such an approach can get results, the efforts of Jordan and Indonesia to manage intellectual property in the public interest are examined. Both countries have passed effective IP legislation and have developed their IP policies in relation to broader public policy goals. Their efforts to leverage the value of the intellectual property generated from public funding will provide useful lessons to anyone interested in doing the same.

Patent law and patent policy have always sought to reconcile the fair and practical availability of the fruits of innovation with the promotion of innovation through private incentives that will maximize R&D. Success in this endeavor will require the flexible, non-dogmatic use of market mechanisms and the strategic deployment of the full range of exclusive rights afforded by IP protection. This can lead to some surprising, counterintuitive decisions, but that is how the game is played, and public-sector institutions should learn to use the rules at least as well as their private-sector counterparts in order to achieve their public policy aims.

Key Implications and Best Practices

Given that IP management is heavily context specific, these Key Implications and Best Practices are intended as starting points to be adapted to specific needs and circumstances.

For Government Policymakers

• Public sector IP managers are more likely to be assessed against public interest expectations than their private sector counterparts. Policy makers, therefore, need to consider a broader approach to the actual practice of public sector IP management when assessing a policy framework for innovation in the life sciences.

For Senior Management (university president, R&D manager, etc)

• Successful establishment of an operational IP management, technology transfer system will require networking and participation at the international level. This includes awareness of the power of international filing of patent applications (via the Patent Cooperation Treaty under WIPO), the role of international IP organizations and accords, and the need to build connections to public sector entities which are actively involved in IP management and technology transfer (for example the Association of University Technology Managers, AUTM).

For Scientists

• While access to foreign technology is clearly integral to development, it is increasingly important to focus directly on capturing the indigenous innovation potential of developing countries. Through the activities of your research program, you may be positioned to facilitate such capture and development of the benefits arising from indigenous innovation and traditional knowledge.

For Technology Transfer Officers

• Public interest IP management goes beyond licensing arrangements. Boilerplate license agreements, for example, may not lead to best practices in IP management in the life sciences, because their use may foreclose the full range of choices available and preempt the objective assessment of the implications of each option. You should instead carefully and wisely use IP mechanisms to leverage the resources needed and obtain freedom to operate, while prudently assessing the likely impact of various forms of IP rights.