The balance between private and public interests is usually the centre of most intellectual property policy debates, but this can be said to be especially significant with medical research performed by publicly funded institutions. In a nation such as ours where the health of our citizens is a responsibility of the government, public funds invested into medical research are expected to ultimately benefit the public. The likelihood of maximizing this benefit is sometimes questionable when the intellectual property rights of the product of such research restrict the availability of the product. At the same time, the reward of being able to control the product of one’s work is an incentive for private individuals to really push for and see through efficient methods to obtain a good final product that can ultimately be beneficial to all.
In an article about publicly funded research, Catherine Saez mentions recent laws in South Africa and Germany that aim to set standards for the management of IP by government-funded institutions. In the South African case, in order to curb IP rights being assigned to parties in other countries without any checks and balances, the government would be able to secure certain patents for the public interest. In Germany, universities automatically get the right to patent inventions by their employees. Though there is a case for public ownership of rights to medical products, one familiar theory of property law dictates that ownership rights in a product should be given to one who has laboured to create that product. Even in Canada, some argue the possibility of exploitation of graduate students who do the core of the work leading to a patentable invention. Tamsin Thomas brings up the potential case of not including everyone on a patent application, even though this leaves out some who toiled away on an invention for many years.
The issues can get more complex when there are many parties involved, each with their own vested interests, such as in the vast majority of public-private partnerships. The MaRS Centre in downtown Toronto, for example, relies heavily on collaboration with private companies, while at the same time using the skill and knowledge of individuals paid directly and indirectly by public funds. Its major stated goal is to “accelerate the commercialization of Canadian innovation by uniting the disparate worlds of science and technology with industry and capital”. On many occasions the pressure from the private companies leads to constraints on the researchers, such as being restricted to exploring avenues of research that are likely to be profitable, to the detriment of non-profitable avenues that may still be quite beneficial to society.
I remember my first brush with private sponsors, particularly related to IP management, when I was an undergraduate summer student working at Sunnybrook Hospital a number of years ago. The research project I was to work on was the creation, implementation, and evaluation of a computer script to calculate blood parameters from MRI and CT image sets. My supervisor told me that she had asked for advice on such a program’s mathematical model from a researcher working at another institute associated with my alma mater. Unfortunately, this future professor of mine was not allowed to disclose anything because he was working on a similar computer program that would be part of a future privately-funded medical device.
Arguably, the free-flowing nature of collaborative science is not increasing at the pace it might be expected to. Though technological advances in the means of communication allow for an ease of transfer of ideas, greater investment by private companies has the effect of stifling such communication. Again from my own experience, I have seen how small the scientific community can be. Even in my limited number of medical research positions, many times I have met and collaborated with principal investigators and students who had met and collaborated with others I knew from different institutions. Though there may be an enhanced air of competition driven by secrecy between groups when the goal of commercialization is paramount, this comes at the price of cutting these numerous potentially productive connections between researchers.
Institutions are becoming increasingly aware of the need for proper internal management of IP by researchers and their employers. The Canadian University Intellectual Property Group has a guide to protecting IP, which speaks of matters such as the publication of results while keeping in mind the novelty requirement for patents. The guide also quite rightly mentions that due to government funding, there is “some onus on those who own that Intellectual Property to make efforts to ensure it is utilized for the benefit of the public at large”. It would be quite difficult to decide on universal legislation that spelled out specific procedures for the sharing of IP rights between different parties, since each case would be best judged by its specific facts. However, it would make sense to include common core factors in the calculation of every fair and just outcome, such as the potential impact of the product on the public’s wellbeing, the costs to all those who invented the product, the real and potential costs to the private investors, and the costs and benefits to other research groups that are also publicly funded. Perhaps a universally mandated general policy regarding IP management, in part similar to the quote above, would suffice. It seems obvious that balancing such rights in medical science research is by no means an exact science.