Chapter 3: Intellectual Property Rights Policy for Gene-Related Inventions – Toward Optimum Balance Between Public and Private Ownership
Koichi Sumikura INTRODUCTION This chapter discusses the use of patented genes in genetic diagnosis and the use of patented research tools in research and development (R&D) activities as cases illustrating typical problems with regard to intellectual property rights policy for gene-related inventions. Taking these problems into account, the chapter attempts to identify issues concerning possible measures to promote the public ownership of research results while granting ownership to frontrunners in technology. These measures include the application of anti-monopoly laws, compulsory licensing, new legislation allowing exemption from the effect of rights and new legislation allowing the limitation on the effect of rights. All these measures may be effective in maintaining the balance between the public and private ownership of technology. However, problems exist with these measures as they fail to provide the stability of rights and are not consistent with the relevant international conventions. Therefore, it is hoped that measures will be worked out to enhance access to patented inventions without changing the existence of the patent or the effect of the patent rights. One such measure considered in this chapter is the establishment of a patent distribution mechanism whereby patented inventions in a certain field of technology are gathered and managed by a single organization to facilitate the conclusion of license agreements for individual technologies. For instance, the establishment of a ‘research tool consortium’ to collect research tool patents and offer them for use in academic research activity would facilitate and enhance the use of patented inventions in academic...
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