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image European Research News Centre > Research and Society > Towards a 'knowledge' market
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image image image Date published: 28/08/02
  image Towards a 'knowledge' market
RTD info 34
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  The days when knowledge acquired in academic scientific circles was handed down and available for all are well and truly over. In today’s knowledge circles, acquisition goes hand in hand with protection and exploitation. Patents and, more generally, intellectual property rights (IPR) are very much the ‘hot topic’ in the world of public research.
   
     
   

‘The ultimate aim of public research is no longer simply to produce scientific knowledge but also to promote the concrete use of the emerging opportunities for progress it generates. In a market economy, this exploitation of research results has an intrinsically economic dimension,’ stresses an expert at the Research Directorate-General responsible for the sensitive issue of IPR. ‘Scientific and technological innovation is increasingly the result of networking between industry, academic laboratories, high-tech SMEs and the public authorities. Intellectual property rights have become a key issue for these network members.’

Public research in the hot seat

IPR are a complex strategic issue for academic researchers. In a world where the tendency to patent is growing, they too see this as a way of protecting their own results. In particular, they are interested in the revenue a patent can generate, to counter the inadequacies of public financing.

Yet this is a situation which raises two fundamental questions and is the subject of heated debate. First of all, at the scientific level, is there not the danger that this rush to patent will, by virtue of the ‘exclusivity’ it introduces, put a brake on the dissemination of and access to knowledge, which is one of the missions of public research? This has prompted many European academic researchers - who face the ‘publish or patent’ dilemma (see following article) - to demand a ‘grace period’, which industry largely opposes.
The second question concerns the technical nature - and the cost - of procedures to obtain IPR, for which public research institutes are sometimes ill-equipped and inexperienced.

This is why the European Commission, which clearly encourages the protection of research results in its R&D framework programmes, is currently considering ways of making things easier for scientists. Most notably, the Commission embarked recently on an ambitious project to create a ‘Community patent’ which would permit the unitary protection of inventions at Union level, at a reduced cost and with greater legal safeguards than presently offered by the European patent, applied since 1978.

The experimental exception and documentary resources

Another member of the team working on these issues at the Research DG believes that ‘the fear of conflict between the protection of intellectual property and scientific activity is unfounded. In Europe (note: in the United States the situation is less favourable), patent law includes what is known as the experimental exception, where a patented invention can be used freely by researchers for experimental purposes…provided of course they do not go on to use it in a commercial application which would constitute an infringement of the patent.’

Moreover, patent offices’ databases, which are openly accessible, are a valuable resource of which too few people are aware. The European Patent Office (EPO) databases, located in Munich (Germany), contain almost 36 million documents. This information source is all the more useful as a patent is, above all, a publication providing a detailed description of an invention. The EPO also systematically communicates any genetic sequences contained in patents to public databases. It is, for example, linked directly to the European Bio-Informatics Institute near Cambridge (United Kingdom).

A cultural revolution

It is essential for the world of public research to adapt to a new cultural landscape in which IPR are more than just a means of financing research activities through the subsequent exploitation of results.

‘Intellectual property rights should be used at every stage of a research and development project. They are not just tools to provide legal protection until a project is completed, but multi-purpose instruments facilitating project preparation, making it possible to obtain information on the state of the art in fields where progress and the best partners are being sought, and increasing the prospects for the material exploitation of results to benefit the whole community,’ adds the Research DG.

IPRs are in a way the ‘currency’ of the knowledge society, which is now developing, in which multi-facetted knowledge must often be the subject of complex transactions leading to the design of products which are equally complex.

But how is it possible to negotiate the awarding of IPR on the results of a research project undertaken in co-operation with industry? What legal framework should be applied to the spin-offs, namely the high-tech SMEs set up by researchers to exploit scientific results? Given the growing trend for public researchers to co-operate from the outset with the economic world, it is essential to determine in advance who will hold intellectual property rights on the results and how they will be managed. Scientists have, however, often been vulnerable during negotiations - this no doubt having something to do with their present suspicions. Obtaining and above all defending intellectual property rights is specialist work - and very expensive. Public research bodies and universities in Europe, as well as SMEs, often lack both the expertise and material means for this and find themselves in a position of weakness when negotiating with manufacturers.

This is why the Commission, through the Enterprise DG, has introduced assistance tools. The IPR Helpdesk, originally set up in 1998 for a period of three years, has just been granted a new lease of life under new partners. The Helpdesk is designed for participants in framework programme projects and includes an Internet site, a regular electronic publication and an individual legal assistance service. Originally managed by a German patents consultancy bureau, it is now coordinated by a team from the University of Alicante in Spain (http://www.ipr-helpdesk.org/).

Following the trend in the United States, many European research bodies and universities are acquiring offices to manage and promote these issues. To encourage this, the Enterprise DG is on the point of launching the Public Research Organisations Transfer Offices Network (Proton) project, charged with promoting links and exchanges of good practice between these various structures for developing and managing IPRs.


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Reference studies

Most of the points raised in this article were discussed by groups of recognised experts drawn from various fields. Their conclusions and recommendations are summarised in a series of reports which are freely available on the Internet. One of these deals with the global approach to the strategic use of IPR as considered above. Others examine the central role of IPR in new forms of research - in particular international R&D projects where it is necessary to allow for differences in patent law between Europe and the United States - or in joint research based on the intensive use of telecommunications networks which pose specific problems in the areas of copyright and database protection. Another example is in the field of bio-informatics, which uses huge databases on the human genome. The overall conclusion of these studies is that, if used appropriately, far from being an obstacle to scientific progress, IPR can be an essential tool in increasing the socio-economic impact of research.

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IPRs in the new framework programme

The Sixth Framework Programme’s new rules of participation clearly reflect current IPR issues.(Download PDF file) “The approach the Commission proposes is inspired by a desire to encourage the material use of research results as well as being prompted by calls from participants (especially in industry) for simplified procedures and better legal safeguards. Many of those participants consider previous rules to have been too ‘open’ in certain respects. The rules proposed offer a high degree of flexibility making it possible to adapt to different configurations depending on the type of project,’ explains an expert from the Research DG. Within a simplified framework, access to either pre-existing knowledge or that generated by a project by participants or third parties can be negotiated on a case-by-case basis. In particular, a participant will only have to provide access to his knowledge if a second participant needs it to use knowledge he has developed himself. Also, results need only be protected when appropriate, implying recognition of the legitimacy of alternative approaches - such as the free dissemination of results without any protection, i.e. placing them in the public domain.

These rules are also adapted to the new ‘instruments’ (new types of projects) proposed by the Commission, some of which will involve more partners and, inevitably, partners joining or leaving a project while it is under way. This is no more than a basic framework, however. ‘The important thing is for the projects to genuinely manage IPR and the exploitation of results (dissemination, licences, spin-offs, marketing) which are all closely linked and require professional management. These aspects will also be considered when evaluating proposals”, explains the Research DG.

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The harmonisation issue

European legislation on the ownership of the R&D results from universities and public research centres is far from harmonised and can seriously complicate the management and exploitation of IPR. While the United States has opted for a blanket solution attributing ownership of IPR to public research institutes, the situation in Europe is more mixed: sometimes the state owns the intellectual property rights, sometimes the research institute and sometimes the researchers themselves.

Experience has shown that the US system works in terms of the exploitation of results and socio-economic impact, especially job and enterprise creation. Most European countries now seem to be moving towards this system - even Germany, which for a long time has opted for the ‘professor’s privilege’ system.

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