Fostering Innovation and Development
Edited by Christopher Arup and William van Caenegem
Chapter 4: Strong Patent Rights, Weak Patent Standards and Innovation in Biomedicine
Dianne Nicol I. INTRODUCTION There can be little doubt that the relationship between patenting and innovation is complex. Innovators who patent are provided with the advantage of a head start in bringing their inventions to the marketplace, but for follow-on innovators these same patents could block their route to market. An optimally functioning patent system will properly balance the innovation advantage provided to patent holders with the concomitant risk of innovation blockage for follow-on users. With the advent of high technology, the pace of innovation has increased dramatically. Questions need to be asked about whether the current patent system, which has essentially remained unchanged for centuries, is properly adapted to facilitate innovation in new areas of technology. In this chapter I explore the relationship between patenting and innovation in one specific area of high technology – that of ‘translational’ biomedical research. This sector focuses on taking ‘the outcomes and innovations developed within the research context into clinical practice’ (Kaye, Hawkins and Taylor 2007, p. 739). This type of research is to be distinguished from pure or basic research, traditionally performed in universities and other public research organizations, and downstream research that is tied to manufacture, marketing and product development, which would normally be conducted inhouse by large pharmaceutical companies or contracted out. Much has been written about the extent to which patents and patent licences in the biomedical sector could negatively impact on innovation by others, by creating hold-ups and anticommons effects. These issues will be considered briefly later in this...
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