Intellectual Property and Access to Im/material Goods

Intellectual Property and Access to Im/material Goods

Elgar Law, Technology and Society series

Edited by Jessica C. Lai and Antoinette Maget Dominicé

Traditionally, in order to be protected intellectual property goods have almost always needed to be embodied or materialised (and – to a certain extent – to be used and enjoyed), regardless of whether they were copyrighted works, patented inventions or trademarks. This book examines the relationship between intellectual property and its physical embodiments and materialisations, with a focus on the issue of access and the challenges of new technologies. Expert contributors explore how these problems can re-shape our theoretical notion of the intangible and the tangible and how this can have serious consequences for access to intellectual property goods.

Chapter 7: Patents, human biobanks and access to health benefits: bridging the public–private divide

Aisling McMahon

Subjects: innovation and technology, intellectual property, law - academic, cultural heritage and art law, intellectual property law


This chapter examines downstream patents on inventions developed as a result of research on specimens stored by publicly funded human biobanks. Examples of such patents may include: patents for new medicines or further applications of existing medicines and patents for diagnostic tests. A tension can arise in this context between public and private interests. Individuals donate to such biobanks often on the basis of providing physical samples for the benefit of broader scientific and medical research. However, downstream inventions may subsequently become subject to patent protection thereby placing such inventions outside the public domain, as access becomes dictated by the patent holder. This creates a potential tension between the donation of physical bio-specimens as an altruistic act to benefit public health and the use of intangible patent rights, which limit access to downstream benefits arising from such research for the duration of patent protection. This chapter examines this tension, focusing on three questions, namely: whether and to what extent should research generated in this context be subject to downstream patents? If patents are granted to what extent should biobanks, donors of bio-specimens and/or the public share in these rights? And, finally, what mechanisms should be employed to ensure the public interest in accessing benefits generated by such research is safeguarded? The chapter argues that intellectual property rights should be maintained in order to encourage innovation but, alongside this, further dialogue is needed to develop a stronger culture that fosters broader dissemination of research findings. Furthermore, greater emphasis should be placed on benefit sharing to ensure access to downstream inventions. Taken together, these mechanisms would promote health research and foster innovation whilst also strengthening benefits for the public.

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