Kieff, F. Scott --- "On the Comparative Institutional Economics of Intellectual Property in Biotechnology" [2009] ELECD 494; in Castle, David (ed), "The Role of Intellectual Property Rights in Biotechnology Innovation" (Edward Elgar Publishing, 2009)

Book Title: The Role of Intellectual Property Rights in Biotechnology Innovation

Editor(s): Castle, David

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781847209801

Section: Chapter 12

Section Title: On the Comparative Institutional Economics of Intellectual Property in Biotechnology

Author(s): Kieff, F. Scott

Number of pages: 55

Extract:

12. On the comparative institutional
economics of intellectual property
in biotechnology
F. Scott Kieff 1

INTRODUCTION

Despite numerous reforms over the past century,2 important problems
continue to plague the IP systems of today, generating numerous pro-
posals for further reform tomorrow. For example, recent high profile
cases like the patent litigation threatening to shut down the BlackBerry®
service3 have drawn sharp criticism in the business community4 as being
prime examples of the pernicious impact of protecting intellectual prop-
erty (IP) rights with strong property rules, backed up by injunctions,
rather than weaker liability rules, which would give rise only to a right
to payment.5 Controversial examples more closely linked to biotechnol-
ogy include the litigation over a potential experimental use exemption for
infringement.6 Various forms of liability treatment have been offered. For
example, Ayres and Klemperer advocate a patent litigation system char-
acterized by uncertainty and delay, which they show could serve as a form
of compulsory license, or liability rule.7 Others simply advocate various
exemptions to infringement, such as for what they call fair use.8 Some
suggest that the open-source model be applied more generally, including
in all bioscience.9
Underlying these critiques of IP is a view that property rights either
restrict access or cause anticompetitive effects. The arguments raised
today are quite similar to those raised throughout most of the past
century; and, as usual, the reform efforts target all three branches of the
federal government ­ legislature, executive agencies, and courts. ...