This article published last week by the New York Times (see lead link) and reprinted in the International Herald Tribune describes the frustration of a group of entomologists doing research at land grant universities in the U.S. regarding the contract conditions attached to the use of materials obtained from several major seed companies. These scientists have sent a letter the U.S. Environmental Protection Agency (EPA) indicating that the have had difficulty in running the experiments needed to test hypotheses, regarding the optimal size(s) of refugia, because of the conditions proscribed by the owners of the materials when they were passed to the scientists for research studies. Everyone agrees that this research needs to be done. The scientists wonder, how this can be accomplished –given the contract language. Now, how will the EPA be able to ask whether their current regulations are sensible?
What does this have to do with intellectual property? Rights are awarded to patent holders; these rights can then be licensed to others. Owners of intellectual property rights have great liberty in the conditions associated with licensing the use of materials under patent protection. In corporations, the text of these licenses is usually under the control of legal departments. This can bring problems when lawyers see their job as one of reducing risk to as close to zero as possible. The situation described in this article perhaps provides an example of the difficulty lawyers have when trying to draft an agreement that provides sufficient room for a licensee to use the material in a productive way and yet also provides sufficient risk management for the licensor.
Here is a very interesting discussion by a patent attorney regarding this situation: http://www.patentdocs.org/2009/02/new-york-times-gets-one-right.html
Additional comments regarding U.S. regulatory agencies involved in approvals of GMOs from:
The above blog post was written by Victoria Henson-Apollonio
A draft of this post was circulated internally last week and Guat Hong Teh, a lawyer on the CAS-IP team had the following comment to make.
“In my view, putting the right language into licences that would enable both the licensor and licensee to achieve their goals (common or not) is a joint effort. Whilst it is reasonable to have some standardisation of legal language in these documents, both lawyer and scientist need to understand that a case-by-case approach is necessary when new situations emerge. A good piece of legal document requires extensive communication between all parties involved. However, there is sometimes a communication breakdown between the scientist and the lawyer because of the seemingly different roles they play or the goals they would like to see achieved. Although the duty of the lawyer is to ensure that his/her client is afforded the widest protection allowed under the law, this has to take into consideration other needs of the client. I see this to be an increasing challenge for what we do because of the rise in collaborative research, especially public-private partnerships.”