Gray Area

Patents and open science - and that Bill again!

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Today is the last day for submissions on the Draft Bill for IPR for Publicly Funded Research. So it was good to see a very balanced and insightful article, Sharing the fruits of science by Glerry Toomey in University Affairs on the question of patents and the value of open science. In contrast to the obsessive insistence of the South African Draft Bill on patenting everything that can be patented and on commercialisation as the only way of getting benefit from research, Toomey makes it clear that international science is now taking other directions:

We ... know that the social behaviour of modern science, and of the broader domain of innovation, is marked by a continual tug-of-war. At one end of the rope we find the forces of collaboration and sharing. At the other end are the instincts to compete and to protect one’s hard-earned intellectual property. While both kinds of behaviour lubricate scientific discovery and technological innovation, IP protection via patenting, with a view to future profits, has become a dominant trend in recent decades, particularly in the life sciences.

But now an international scientific counterculture is emerging. Often referred to as "open science," this growing movement proposes that we err on the side of collaboration and sharing. That’s especially true when it comes to creating and using the basic scientific tools needed both for downstream innovation and for solving broader human problems.

Patenting has a role to play, the article argues, but the mistake that has been made in recent years is a failure to 'distinguish between the research tools and basic knowledge' of science and the inventions with industrial application that the patent system was designed for.

The article tracks a number of open science projects and links these to the recognition of scientific discovery as the generator of public good. He quotes at length Dr Richard Jefferson, a biotechnologist now living in Australia, the founder of an international research unit in Canberra called CAMBIA, which promotes open science.

Dr. Jefferson distinguishes between the development of basic scientific tools and the application of those tools, between "discovery and invention." He sees scientific discovery as a social enterprise – not only serving as midwife to marketable inventions, but also delivering publicly valuable products for which markets or profit margins may be small. That includes alleviating poverty and hunger, especially in the developing countries, preventing or curing the diseases of the disadvantaged, and improving human stewardship of natural resources. So, while open science is described as a pragmatic way of doing research, it also has a social and ethical backbone. Terms like global public goods, common heritage of humankind and human rights recur in the literature on open science.

This would seem to be very much in line with the policy of the Department of Science and Technology, which argues for the need for research to contribute to national upliftment. On the other hand, Toomey claims, the commercialisation of public research, driven by the Bayh-Dole Act in the US some 27 years ago led to a 'filing frenzy' resulting in a tendency to privatise the tools and platforms of science.

This has not povided beneficial to the universities:

For universities in the technologically advanced countries, says Dr. Jefferson, the promise of getting fat cheques in the mail from patenting the fruits of their biosciences research projects has simply not materialized. He maintains that offices of technology transfer are "generally losing money" and that there’s ample evidence that private biotechnology enterprises, as a commercial industry, have fallen flat as well.

The article ends by suggesting that there needs to be a total rethink of the role of intellectual property, as a powerful tool for creating social value, through providing the platforms and sharing the improvements that result.

I would suggest that the South African Department of Science and technology needs to consider these arguments before enacting any legislation on IPR rights in university research. In promoting a Bill that looks backwards to 25-year-old US legislation, proven to have had many negative consequences; in insisting on a very wide-ranging definition of what research needs to be protected for patenting purposes, the Department would be locking the country into a backward-looking paradigm, just when exciting new prospects are available for delivering real development impact from public research.

Thanks to Peter Suber's Open Access News for drawing my attention to this article