Category Archives: Patents

The state of the nation 2011 – government policy and open access in South Africa

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The working year is just waking up in summer South Africa and I am to moderate the opening session on the topic of ‘A national perspective on A2K in South Africa’ at the Yale A2K Global Academy. This takes place at the UCT Graduate School of Business on 18 and 19 January and the session that I am moderating needs me to step back and and try to get a perspective on what this national perspective actually looks like.

When it comes to government policy and legislation, the trouble is that South Africa, as usual, does not present a coherent or unified picture, but rather embodies a number of contradictions. Perhaps I could borrow a wonderfully vivid description of the situation in the Caribbean in an Intellectual Property Watch article by Abiole Inniss on Fair Usage in the Caribbean, something that could well apply to South Africa:

A panoramic view of the IP situation in the Caribbean would present to the observer a carnival of Olympic size replete with politicians, diplomats, rights advocates, consumer groups, law enforcement, and impotent jurists, all gyrating discordantly to the WIPO band while Caribbean citizens look on, or are pulled or shoved in.

2010 has been dominated, from my perspective, by a negative force, the pending implementation, during 2011, of the IPR Act for Publicly Funded Research of 2008. While I would argue that the default position these days on publicly funded research is that it should, as far as possible, be publicly and freely available, this piece of legislation, a kind of Bayh-Dole Act on steroids, appears to regard the default as IP protection, with commercialisation through patenting as the most desired outcome. This legislation and its implementing Regulations do appear to recognise the need for research contributions that lead to social and non-commercial development. However, the default position of the implementation clauses in the Regulations is that permission has to be obtained from a national agency before any research that is capable of commercialisation and patenting can adopt open innovation or open source approaches. Continue reading →

Innovation policy

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The Australian federal government has just completed a review of its National Innovation system. Australian research and innovation policy-making tends to be broadly consultative, wide-ranging  and forward-looking, so I was interested to compare this with what the South African government is doing. Our IPR Act of 2008 is Bayh-Dole on steroids, insisting on commercialisation and patenting wherever possible, and apparently treating open innovation as the exception, not the rule. And speaking of rules, the Regulations impose layers of bureaucratic filters between the researcher and the innovation outcome.

I am still working through the Australian document to absorb its detail but it has some valuable insights and the overall thrust is clear: there needs to be a balanced system, in which commercialisation is but one strand of the innovation role that universities can play. Far from taking Bayh-Dole as gospel, there is a critical evaluation of such strategies and a re-evaluation of  what innovation policy should look like in the 21st century.

Moreover, the Australian government and the participants in the policy process are aware of the pitfalls in excessive patenting. They review the past record, warn against the damage that can be done by patent law that is not rigourous enough and advise against policies that could create patent thickets. Most interesting, there is a strong argument for this arena to be opened up, so that the participants in the innovation system have a strong say, rather than this being the exclusive domain of lawyers. This is a lesson that I think South African universities might need to learn – it appears that our academics are not engaging with the South African legislation, thinking that this is the domain of professionals.

This Australian policy document reminds me of a recommendation from Arie Rip at an  early stage of the South African higher education policy process (2000):

The common mimetic route is to define the nature of capacity-building in terms of what is now seen as important. This may well be a recipe to become obsolete before one’s time … [T]he world (of science and more generally) may well evolve in such a way that present-day exemplars will be left behind. So developing countries should set their sights on what is important in 2010, rather than what appears to be important now – however difficult this will be politically. 1

The IPR Act of 2008 is unfortunately trapped in the ‘mimetic route’ that Rip warns about here. But what about Australian thinking in 2009? Here are some extracts that give some insight into the thinking that will inform policy review down south:

On the commercialisation of research:

Research commercialisation is not a core role for universities. Nevertheless, universities can play a vital role in the commercial process. In cases where the benefits of research are best achieved through commercial engagement, universities should, where possible, attempt to partner with appropriate stakeholders to achieve these goals. Such instances are in the minority and universities more commonly play a role of commercial significance through provision of vital research advancement, workforce training and substantial international links.

On the protection of intellectual property rights:

[T]here is a caveat which is increasingly important: The development of intellectual property is cumulative. In the words of Sir Isaac Newton, we stand on the shoulders of giants. Because new knowledge always builds on old knowledge, the property rights we have erected to encourage innovation can actually obstruct it.

On the need to open up the question of patenting and IP beyond the legal profession and the IP industries:

Nevertheless the consideration of policy … is dominated by IP practitioners and by the beneficiaries of the IP system. We need the expertise of lawyers in this as in many other areas of policy but it is imperative that IP policy make the transition that competition policy made over a decade ago now, from a specialist policy area dominated by lawyers, to an important front of micro-economic reform.

On access and dissemination for social and economic benefit

Along with the rise in support for access to information has come a growing recognition of the need for users to be able to search and interact with data and content. Legal frameworks must also be developed to facilitate access and reuse. This points to the need for an Australian National Information Policy (or Strategy) that optimizes the generation and flow of ideas and information in the Australian economy. As the National Competition Policy (NCP) involved systematically scanning Australian institutions to optimize the operation of competition to enhance outcomes so National Information Policy would scan Australian institutions to optimize the generation and dissemination of information for social and economic benefit.

Thus for instance, unless it seriously undermines its commercial objectives of sale of product, the ABC should err on the side of making its content available over theinternet unless this has large opportunity costs. The presumption against free availability might be overcome where it would involve the foregoing of substantial commercial revenue from the sale of the content or there are large costs of hosting the necessary internet bandwidth (although in this latter case, peer to peer means of distribution should also be explored as should the diversion of funding from other activities and/or additional funding).

The advantages of  open science

To drive cumulative knowledge creation researchers and others must have access to high quality data and information on developments not just in their field but beyond. For instance, Jeff Furman and Scott Stern have calculated that Biological Resource Centres that are repositories of biological materials (including cell lines, microorganisms and DNA material) have boosted cumulative scientific knowledge by three times more than alternative institutional structures 2.Australian physicist Michael Nielsen has stressed the importance of unlocking scientific information in scientific journals to make it more easily discoverable, searchable and useable to enable the cross-disciplinary search for knowledge:

We should aim to create an open scientific culture where as much information as possible is moved out of people’s heads and labs, onto the network, and into tools which can help us structure and filter the information. This means everything – data, scientific opinions, questions, ideas, folk knowledge, workflows, and everything else – the works. Information not on the network can’t do any good.3

There is a lot more in this report – I recommend that South African researchers read it as they engage with our legislative process with an eye to preserving their expertise and independence in the process of ensuring that their research has maximum national impact.

1. Rip, A. (2000) Fashions, Lock-ins and the Heterogeneity of Knowledge Production. In Kraak, A. (ed.) Changing Modes: New knowledge production and its implications for Higher Education in South Africa. Pretoria: Human Sciences Research Council.

2. Furman, J. and Stern, S., Standing Atop the Shoulders of Giants: The Impact of Institutions on Cumulative Research, National Bureau Economic Research Working Paper. 2004.

3. http://michaelnielsen.org/blog/?p=448

Obama promises to restore science to its rightful place

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President Obama has made the headlines with his speech to the National Academy of Sciences. First of all, he is apparently unusual among Presidents for attending the NAS annual meeting, but he also made a powerful speech promising to put science and research at the heart of the recovery of the US, with substantial increases in investment.The full text of his speech can be found on the New York Times Dot Earth blog which will be running a commentary space on the speech.

It is instructive to compare Obama’s proposals with the policy developments we are facing in South Africa. The IPR Act of 2008 is based in the USA Bayh-Dole Act  of 1980. Not to labour the point too crudely, that is 29 years ago. We are forgetting the fundamental injunction that policy formulation needs to look forward, not backwards if it really to advance the country. The philosophy behind Bayh-Dole was informed by a Reagon-style economic vision that imploded in 2008 and one that the Obama adminstration is aiming at undoing. That outdated view says that the economy is all and that if universities act like businesses and commercialise their research, using patenting and revenue-seeking, then this will bring benefit to the country through economic growth and trickle-down. In my next few blogs I will be exploring the debate on how this has really worked (or rather, not worked) and what alternatives are now being proposed in other countries for effective innovation.

But for now, let us celebrate Obama’s speech and see what vision it embodies, rather than the dysfunctional ‘managemented’ view we currently live with. He talks of the crisis: ‘a medical system that holds the promise of unlocking new cures and

treatments — attached to a health care system that holds the potential for bankruptcy to families and businesses; a system of energy that powers our economy, but simultaneously endangers our planet; threats to our security that seek to exploit the very interconnectedness and openness so essential to our prosperity; and challenges in a global marketplace which links the derivative trader on Wall Street. The main focus is on medicine and energy for a sustainable environment, both with a strong human perspective.

Obama’s vision is of an interdisciplinary, international, collaborative and open scientific system. For a start, the policy system is being opened up:

As part of this effort, we’ve already launched a web site that allows individuals to not only make recommendations to achieve this goal, but to collaborate on those recommendations. It’s a small step, but one that’s creating a more transparent, participatory and democratic government. Then science itself is perceived as a collaborative open system: In biomedicine… we can harness the historic convergence between life sciences and physical sciences that’s underway today; undertaking public projects — in the spirit of the Human Genome Project — to create data and capabilities that fuel discoveries in tens of thousands of laboratories; and identifying and overcoming scientific and bureaucratic barriers to rapidly translating scientific breakthroughs into diagnostics and
therapeutics that serve patients.

And of course, with someone like Harold Varmus leading his scientific team, one hopes that open access will be on the agenda of a new scientific system.

Science is seen as not only the ivory tower (although basic science is given a strong emphasis) but scientists are preceived as potential activists. Applied research is valued and Obama places a strong emphasis on the potential role of the young and of the role that scientists can play in taking their knowledge into the schools and the community to help enthuse and inspire a new generation.

Ultimately, in typical Obama vein, it is a moral vision that drives this iniitiave, although substantial funding is going to drive it:

Science can’t answer every question, and indeed, it seems at times the more we plumb the mysteries of the physical world, the more humble we must be. Science cannot supplant our ethics or our values, our principles or our faith. But science can inform those things and help put those values — these moral sentiments, that faith — can put those things to work — to feed a child, or to heal the sick, to be good stewards of this Earth.

We need to ask whether our policies are in line with this renewed vision from the country that drives sceintific research in the world and if we are ready to collaborate with Obama’s USA.

IPR Act Regulations – IP under uncertainly in South Africa

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Derek Keats. the Deputy Vice-Chancellor of Knowledge management at Wits University has posted a series of blogs in the proposed Regulations for the implementation of the IPR Act. He thinks – and I agree – that they will probably be unworkable and that they will almost certainly act as a hindrance and not a help to research effectiveness in the country.

Some of his comments:

Most importantly, innovation thrives in the absence of impediments. Every time a researcher must go to NIPMO for permission, there is another barrier to innovation. More barriers equates to less innovation. This is a sine quo non, and cannot be changed… These regulations will stiffle innovation, not just in software, but in almost every sphere of research endeavour. They are bad for innovation, they are bad for research, they are bad for business, and they are bad for South Africa. Research innovation is something that is made from a harvest of passion and energy, and the capacity for the unfettered creativity that universities make possible. Anything that reduces that capacity for unfettered creativity, and creates the risk of a passion drought will undermine innovation and lead to less, not more, innovation. This is something that I know with as much certainty as I know I have 10 fingers (currently). Much as software patents favour existing large companies, and make
it difficult for a new company to become large, these regulatins will have a small negative impact on the research superstars, but will make it much more difficult to become a new superstar, and will drive passionate people away from research into other carreers. Academic freedom is important to people, and people do innovation. Trample on it at your peril!If you look at the range of work that these regulations cover, which
is effectively all knowledge work undertaken with public funds, the range of knowledge needed to make non-spurious decisions is enormous. The level of talent that will be needed for the imlementing body,
NIPMO, to work is very high. These are not decisions that can reasonably be expected to be taken by inexperienced people who have just completed a masters degree. They need experienced researchers, with doctorates and many years of research and development experience. Such people simply do not exist in South Africa. They could be taken out of the Universities, but then that would undermine the innovation process they are supposed to be managing. So where will they come from?

Finally, he makes a set of useful suggestions on how things could and should work:

  • Leave critical decisions close to the site of the action,
    where people are most familiar with the challenges and opportunities
    and can act in an agile manner with the minimum of delays;
  • Ensure
    that the services are available to assist with commercialization of
    research, including legal services, product development assistance, and
    that these are available with minimum of fuss whether a proprietary or
    open source business model is followed;
  • Ensure that there
    is a National fund to help startups fight patent challenges from patent
    trolls and other holders of spurious patents, especially large
    multinational corporations with large patent portfolios which may
    contain numerous dubious patents;
  • Recognize that the vast
    majority of researchers are not doing research that will lead to
    commercial products, and do not bring the whole innovation regime in
    South Africa under these regulations, where social and cultural
    innovation will be stiffled; rather provide means to assist and inform
    such researchers to find commercially or socially beneficial uses for
    their research when they tell you they would like your help;
  • Where
    software and documentation in various forms are concerned, accept the
    National Policy on Free and Open Source as also being an important
    guide for action among responsible, knowledgeable researchers.

I hope Wits University’s reposnse to the Regulations will incorporate all o of this.

Patents and open science – and that Bill again!

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Today is the last day for submissions on the Draft Bill for IPR for Publicly Funded Research. So it was good to see a very balanced and insightful article, Sharing the fruits of science by Glerry Toomey in University Affairs on the question of patents and the value of open science. In contrast to the obsessive insistence of the South African Draft Bill on patenting everything that can be patented and on commercialisation as the only way of getting benefit from research, Toomey makes it clear that international science is now taking other directions:

We … know that the social behaviour of modern science, and of the broader domain of innovation, is marked by a continual tug-of-war. At one end of the rope we find the forces of collaboration and sharing. At the other end are the instincts to compete and to protect one’s hard-earned intellectual property. While both kinds of behaviour lubricate scientific discovery and technological innovation, IP protection via patenting, with a view to future profits, has become a dominant trend in recent decades, particularly in the life sciences.

But now an international scientific counterculture is emerging. Often referred to as “open science,” this growing movement proposes that we err on the side of collaboration and sharing. That’s especially true when it comes to creating and using the basic scientific tools needed both for downstream innovation and for solving broader human problems.

Patenting has a role to play, the article argues, but the mistake that has been made in recent years is a failure to ‘distinguish between the research tools and basic knowledge’ of science and the inventions with industrial application that the patent system was designed for.

The article tracks a number of open science projects and links these to the recognition of scientific discovery as the generator of public good. He quotes at length Dr Richard Jefferson, a biotechnologist now living in Australia, the founder of an international research unit in Canberra called CAMBIA, which promotes open science.

Dr. Jefferson distinguishes between the development of basic scientific tools and the application of those tools, between “discovery and invention.” He sees scientific discovery as a social enterprise – not only serving as midwife to marketable inventions, but also delivering publicly valuable products for which markets or profit margins may be small. That includes alleviating poverty and hunger, especially in the developing countries, preventing or curing the diseases of the disadvantaged, and improving human stewardship of natural resources. So, while open science is described as a pragmatic way of doing research, it also has a social and ethical backbone. Terms like global public goods, common heritage of humankind and human rights recur in the literature on open science.

This would seem to be very much in line with the policy of the Department of Science and Technology, which argues for the need for research to contribute to national upliftment. On the other hand, Toomey claims, the commercialisation of public research, driven by the Bayh-Dole Act in the US some 27 years ago led to a ‘filing frenzy’ resulting in a tendency to privatise the tools and platforms of science.

This has not povided beneficial to the universities:

For universities in the technologically advanced countries, says Dr. Jefferson, the promise of getting fat cheques in the mail from patenting the fruits of their biosciences research projects has simply not materialized. He maintains that offices of technology transfer are “generally losing money” and that there’s ample evidence that private biotechnology enterprises, as a commercial industry, have fallen flat as well.

The article ends by suggesting that there needs to be a total rethink of the role of intellectual property, as a powerful tool for creating social value, through providing the platforms and sharing the improvements that result.

I would suggest that the South African Department of Science and technology needs to consider these arguments before enacting any legislation on IPR rights in university research. In promoting a Bill that looks backwards to 25-year-old US legislation, proven to have had many negative consequences; in insisting on a very wide-ranging definition of what research needs to be protected for patenting purposes, the Department would be locking the country into a backward-looking paradigm, just when exciting new prospects are available for delivering real development impact from public research.

Thanks to Peter Suber’s Open Access News for drawing my attention to this article