Project 3:
Intellectual property protection of databases, and alternative regimes to reconcile public science with the commercialization of research results ("Liability Rules")
Principal Investigators: Jerome Reichman and Tracy Lewis
This project uses legal scholarship and economic analysis to inquire about alternatives to the current intellectual property regime in genomics, with particular attention to the possible consequences of exclusive patent rights and sui generis exclusive database rights (i.e., modeled on current practice in the European Union). The project also explores whether liability rules might achieve the intended aims of current patent, copyright, and database protection rights, while avoiding the problems of exclusive rights frameworks.
Selected Major Projects
Designing a Microbial Commons
The concept of a "master portal" for microbial reference materials as a facilitative tool for the sharing of data and materials is a first and important step in creating a socially productive framework for microbial science. To make it succeed, however, intellectual property strategies must be devised that would enable data and materials from all over the world to be pooled for purposes of scientific research, without causing the depositors to forfeit their rights to commercial applications. Moreover, data arising under many different legal regimes would have to be coordinated for purposes of sharing under a contractually constructed commons regime that observes basic rights in the home countries. The current task is to develop norms and strategies for a self-governing research pool, supported by contractually reinforced liability rule principles that could apply to commercial applications.
Pre-Competitive Pooling of Small Molecule Libraries
We have published a proposal for pooling pre-competitive small molecule libraries currently held under trade secret protection, with a view to enabling academic investigators systematic access to the enlarged pool for purposes of high through-put screening of assays that might lead to validated targets and potential drug candidates. We contend that large-scale collaboration might improve translation by the academic sector of large volumes of upstream biological information into such targets.
Arti K. Rai, Jerome H. Reichman, Paul F. Uhlir, & Colin Crossman, Pathways Across the Valley of Death: Novel Intellectual Property Strategies for Accelerated Drug Discovery, 8 YALE J. HEALTH POLICY, LAW & ETHICS, 53-89 (2008)
Unlocking Peer-to-Peer Technology's Scientific Data Sharing Potential
The potential for using peer-to-peer technology for establishing broad federated data sharing systems has been observed in the literature, and this approach seems particularly promising at a time when digitized computational methods have vastly expanded the capacity of data mining to yield unexpected results. However, when holders of needed data and information lock them behind digital fences—known as Technical Protection Measures—they can thwart access to data for scientific purposes, often with the aid of either copyright laws or database protection laws, or both.
In this article by Reichman, Samuelson and Dinwoodie, Prof. Reichman proposes a "reverse notice and takedown" regime that would unlock TPMs to release data for public science purposes by implementing existing limitations and exceptions to intellectual property protection. Professor Samuelson shows how recent case law in the U.S. already empowers willing judges to adopt the proposal while Professor Dinwoodie explains why the proposal fits neatly within article 6(4) of the European Commission's recent Directive that seeks to reconcile TPMs with traditional limitations and exceptions under copyright law.
Jerome H. Reichman, Graeme B. Dinwoodie, & Pamela Samuelson, A Reverse Notice and Takedown Regime to Enable Public Interest Uses of Technically Protected Copyrighted Works, 22 BERKELEY TECHNOLOGY