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Innovation for the 21st CenturyHarnessing the Power of Intellectual Property and Antitrust Law$
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Michael A. Carrier

Print publication date: 2009

Print ISBN-13: 9780195342581

Published to Oxford Scholarship Online: May 2009

DOI: 10.1093/acprof:oso/9780195342581.001.0001

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PRINTED FROM OXFORD SCHOLARSHIP ONLINE (oxford.universitypressscholarship.com). (c) Copyright Oxford University Press, 2021. All Rights Reserved. An individual user may print out a PDF of a single chapter of a monograph in OSO for personal use. date: 18 June 2021

Biotechnology Dilemma 1: Patented Research Tools and Experimental Use

Biotechnology Dilemma 1: Patented Research Tools and Experimental Use

Innovation for the 21st Century

Michael A. Carrier

Oxford University Press

Research tools used by scientists are essential for innovation in the biotechnology industry. In recent years, the patenting of such tools has skyrocketed with many scholars and organizations lamenting this development. They have focused, in particular, on reduced access to research tools and an “anticommons” characterized by multiple patentees exercising rights to exclude. This chapter addresses the question of whether scientists are able to use patented research tools. It argues that industry and academia have forged a relationship that, at least at the present time, has displaced the need for changes to the law. The chapter offers three proposals that could be implemented if the situation changes. First is to protect “experimentation” on the invention, which uses the invention to study its technology or design around the patent. Second, it offers an amendment to the Bayh–Dole Act (which encouraged the commercialization of nonprofit inventions) that would require universities and nonprofit institutions to reserve the right to use the invention for non-commercial research. Third, it recommends empirical study of user innovation among research tool innovators.

Keywords:   patents, research tools, experimental use, scientists, biotechnology industry, Bayh–Dole Act, NIH, university licensing, nonprofit institutions, user innovation

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