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Intellectual Property, Technology Transfer, and Commercialization of Research

by rjp218 Apr 22, 2015

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“Technology transfer” refers to the practice of patenting the results of researchers at public institutions, and licensing those patents to private companies for development into marketable products.  Technology transfer alters the incentives that public researchers operate under; specifically, it creates incentives to do research on “marketable” problems, and may disincentive other sorts of research.  It also alters norms about sharing of and access to research results, and raises questions about the differences between (among other things) “basic” and “applied” research, as well as “commercial” and “public interest” science.  This is a huge and very complex area; a good place to start is with the articles by Barton and Emanuel and Heller and Eisenberg.  Chs. 4 and 5 of Krimsky, Science in the Private Interest (see the item entry in the “General Works” section) give a good historical overview of the whole phenomenon of technology transfer (for more on intellectual property, see also the articles by Flory and Kitcher and Pogge in the “Research Agenda Distortion” section.)

Argyres, Nicholas S., and Julia Porter Liebeskind. “Privatizing the Intellectual Commons: Universities and the Commercialization of Biotechnology.” Journal of Economic Behavior and Organization 35, no. 4 (1998): 427-454.

Argyres and Liebeskind argue that the organizational structure of university-industry partnerships is permanently hampered by researchers’ simultaneous commitment to the norms of open science, and contractual commitments to develop patentable tech out of their research.  They consider the possibility of new hybrid organizational forms, which meet both sets of demands.

Barton, John H. and Ezekiel J. Emanuel. “The Patents-Based Pharmaceutical Development Process.” Journal of the American Medical Association 294, no. 16 (2005) 2075-2082.

Eisenberg, Rebecca S. “Public Research and Private Development: Patents and Technology Transfer in Government-Sponsored Research.” Virginia Law Review 82, no. 8 (1996): 1663-1727.

These two articles give an overview of the role of patents in the commercialization of research.  Barton and Emanuel give an excellent summary of the role of patents in structuring biomedical research.  They also discuss systematic problems that arise from patent-based pharmaceutical development, and the commercialization of biomedical research in general.  Eisenberg summarizes the legal framework that makes patenting of publically financed research and licensing to private companies – technology transfer – possible, and discusses the legal history.

Bozeman, Barry. “Technology Transfer and Public Policy: A Review of Research and Theory.” Research Policy 29, no. 4 (2000): 627-655.

Bozeman’s article, as the title indicates, is a review of the public policy literature on technology transfer.  But, in addition, Bozeman also aims to clarify a great deal of the conceptual ambiguities in this literature, and present a framework, which he calls the “Contingent Effectiveness Model” for thinking about technology transfers.  Importantly, he also discusses the ways in which political concerns impact issues about technology transfer, so this article goes beyond the standard cost-benefit analysis (which is, for good reasons, of limited utility) employed in public policy theory.  This is a great article, and a pretty good one to read early on in approaching issues in this area.

Brown, James Robert. “Politics, Method, and Medical Research.” Philosophy of Science 75, no. 5 (2008): 756-766.

Brown says what many people who are write on this topic are probably thinking but all too often don’t say: there is no way for biomedical research to be ethically above board if we allow patenting of research results.  The article is short and to the point, which means that his argument is also underdeveloped (this is not an oversight or defect; the article began life as a talk as the 2006 PSA meeting, and accordingly is shorter and less developed than a standard journal article.)  Brown sketches a general case against commercialization of research; he doesn’t offer any proposals, other than the broad statement that biomedical research must be “socialized.”  Useful, as a statement of broad position that is within the space of defensible views, even if more would be need to make a good case.

Biddle, Justin B. “Tragedy of the Anticommons? Intellectual Property and the Sharing of Scientific Information.” Philosophy of Science 79, no. 5 (2012): 821-832.

Eisenberg, Rebecca S. “Proprietary Rights and the Norms of Science in Biotechnology Research.” Yale Law Journal 97, no. 2 (1987): 177-231.

Heller, Michael A., and Rebecca S. Eisenberg. “Can Patents Deter Innovation? The Anticommons in Biomedical Research.” Science 280, no. 5364 (1998): 698-701.

Murray, Fiona and Scott Stern. “Do Formal Intellectual Property Rights Hinder the Free Flow of Scientific Knowledge?: An Emprical Test of the Anticommons Hypothesis.” Journal of Economic Behavior and Organization 63, no. 4(2007): 648-687.

These articles all deal with the anticommons hypothesis: the possibility that patenting of research will slow down the pace of innovation, by creating boundaries to sharing information and research results.  The anticommons hypothesis also raises serious questions about the tension between research and commercial interests, and the possibility that the commercialization of research subverts, in some form, the goals of scientific research.  Heller and Eisenberg’s article is the seminal piece on this; the longer law review article from Eisenberg develops the discussion further, with a special focus on the tension between commercial and research interests.  Both the articles by Biddle and Murray and Stern discuss empirical tests of the anticommons hypothesis; Biddle also contains a meta-analysis of such tests.

Gold et al. “Are Patents Impeding Medical Care and Innovation?” PLoS Medicine 7, no. 1 (2009): 1-5.

This is a “debate” article, in which each of the co-authors presents a short argument in favor of a position on the question that forms the title.  Useful and interesting for getting a sense of the dialectical positions in the debate about intellectual property.  E. Richard Gold’s contribution is particularly interesting, as he discusses ways in which the patent system could be different that, be believes, would solve a lot of the problems raised by intellectual property.  As such this is in the same vein as the second Rosenberg article cited below, in raising possibility of intellectual property reform as a solution to ethical problems about intellectual property.

Rosenberg, Alex. “On the Priority of Intellectual Property Rights, Especially in Biotechnology.” Politics, Philosophy, and Economics 3, no. 1 (2004): 77-95.

Rosenberg, Alex. “Designing a Successor to the Patent as a Second Best Solution to the Problem of Optimum Provision of Good Ideas.” In Annabelle Lever, edited New Frontiers in the Philosophy of Intellectual Property. Cambridge, Cambridge University Press, 2012: 88-109.

These two articles by Rosenberg form a kind of point-counterpoint on patents.  In the first, Rosenberg argues that patents are essential to biotechnology research, for two reasons: (1) it is very difficult to fund research and attract investment to biotech without patents, and (2) it is very difficult to select research priorities without the kind of feedback (namely, price signaling in a competitive market) made possible by patenting.  In the second article, Rosenberg nevertheless argues that the patent system faces serious moral objections, and so a successor instrument, that duplicates some of the functions of patents, is a necessary “second best” option.  These are good meditations on all of the reasons both for and against commercialization of research.

Taylor, Patrick L. “Research Sharing, Ethics and Public Benefit.” Nature Biotechnology 25, no. 4 (2007): 398-401.

Taylor considers the model for sharing research results adopted by the International Society for Stem Cell Research as a possible model for technology transfer in general.

Vermeir, Koen. “Scientific Research: Commodities or Commons?” Science and Education, August 2012.

Vermeir’s article discusses different models for understanding how scientists treat research results, in an attempt to elucidate the tensions generated by commercialization of research.  He argues that understanding scientists’ attitudes towards sharing of results as a kind of gift economy is the best such model, and that this can help articulate the tensions and systemic problems that arise from commercialization.