Designing Models to Clear Patent Thickets in Genetics

Recent years have seen a remarkable increase in patents in the field of information, communication and entertainment (ICE) technology and biotechnology. The growth of patents in those areas has triggered serious concern about access to ICE and genome related inventions, as the rise of patents may lead to “patent thickets” and royalty stacking, frustrating the use of technology and ultimately leading to a “tragedy of the anti-commons”. Various strategies have been suggested to mitigate the alleged hindering effect of patent thickets and facilitate access to ICE and genome related inventions within the borders of the patent system. Several approaches have been put forward to deal with the quagmire of overlapping patent rights recognizing the (positive) function of the patent system to serve as an incentive, and focusing on remedies to tackle some of its (potential, negative) effects. One way to achieve this goal is to narrow down patentable subject matter. As valuable as such an approach may be, this is more easily said than done, given the (global) change in legislation it would require. Another approach, oriented to cut down on the mass of “trivial patents”, is to strengthen patentability requirements and “raise the bar”, or apply existing standards more stringently and reserve patent protection for “high quality patents.” Various initiatives seem to be under way to implement this idea. Yet another option is to explore solutions which leave the creation and grant of patent rights largely untouched and focus on the exercise of such rights. Swift and plastic responses to the current proliferation problem in patent law might be served by the design of contractual tools organizing the transaction of IP rights more effectively. More particularly, collaborative licensing models might act as useful mechanisms to remedy possible adverse effects of fragmentation within the patent system. Studying the role of contractual, collaborative rights institutions in mediating the use of intellectual property (IP) rights is not new. In his pioneering article, Rob Merges already explored collective rights institutions. He found that these organizations ease some of the tensions created by strong IP rights and may play a valuable role in facilitating transactions in IP rights. However, his efforts (as well as later writings from other scholars) have mainly focused on patent pools for ICE technology and copyright collecting societies for music, whereas this paper aims at carrying the debate a step further and reflects upon the role of contractual, collaborative rights organizations in mediating the use of patents in genetics. The main focus of the present paper is on patent pools and clearing houses. The paper builds on previous research of our research team and offers new insights in some of our more recent findings. The paper concludes that the major challenge in translating collaborative rights institutions into the genetic field is not so much conceptual in nature (implying that such models cannot easily be moulded into a genetic context), but rather relates to the economic viability of those models in a genetic milieu. Tuned down by a sense of realism, we take the view that the best option for now might well be either to concentrate on patent pools set up around a limited technological field or on well focused patent standard clearing houses. In order for those models to be socially applauded as well, they should also carefully maintain the delicate balance between an adequate return on investment and a fair and equitable access to healthcare