A first practical step toward solving the problem of the anti-commons is the broad provision of "IP informatics " to make information about a set of interdependent technologies and the IP that protects them broadly and freely available to all concerned parties. The common availability of information would help to overcome two serious barriers to fair trade in patented technologies: "imperfect information" and "information asymmetry," situations where one or both parties in a transaction lack some of the information on which their decisions to buy or to sell rest. A complete and open flow of information helps individual researchers and organizations to identify actual and potential conflicts among patents already granted. When considering the potential savings and gains that may be achieved by providing such information to all organizations involved in agricultural research, IP informatics is a relatively inexpensive and straightforward investment.
The term "IP informatics" was coined at the Center for the Application of Molecular Biology in International Agriculture (CAMBIA), a nonprofit research institute located in Canberra, Australia, which offers the CAMBIA Intellectual Property Resource, an information service that is particularly suited to public sector researchers in international agricultural institutions and developing countries. CAMBIA provides, at minimal or no cost to the user, a readily searchable database of U. S., European, and international (PCT) patents covering agriculture and the life sciences, augmented with advisory and educational services (see Table 18-1 for the web address of this and other IP information services).
While most national patent offices, such as the European Patent Office and the U. S. Patent and Trademark Office, provide web-based searches of their respective patent databases, these usually consist just of raw data or the texts of the patents themselves. More extensive supplementary patent information and analyses are sold by a variety of IP information services. The largest of these are the INPADOC databases of the European Patent
Office, which cover patents in 65 countries, providing information on the current legal status of each patent and tracing the "family" of patents issued in different countries for the same invention. The foremost private IP information service is Derwent, of Thompson Scientific, which maintains the Derwent World Patents Index, containing up-to-date patents from 40 different countries, summarized in English and classified according to Derwent's own comprehensive technology index.
Table 18-1. IP information sources as of November, 2003
CAMBIA Intellectual Property Resource CHI Research
Thomson Delphion Research Thomson Derwent European Patent Office,
European Patent Register European Patent Office, INPADOC databases MicroPatent
N.I.H. National Center for Biotechnology
Information, GenBank database U.S. Patent and Trademark Office U.S.D.A. Plant Variety Protection Office
World Intellectual Property Organization, Intellectual Property Digital Library* and PCT Full Text Database CAMBIA Intellectual Property Resource
* Includes links to many national patent office databases.
An ideal IP informatics tool includes supporting data and analysis to add additional value to the use of basic patent data. This should include:
A database search methodology specifically structured and indexed to be user friendly and easily navigated by biologists and other non-IP professionals.
Analytical tools to determine and display the IP landscape around particular patents, to characterize the differences and similarities among patented technologies, and indicate the positions of different organizations in the related technologies.
Analytical tools to chart or interpret patents' legal claims to outline best approximations of the legal scope of patents. Indicators of patent value.
Such analytical capacities are more costly to provide but are already developed and marketed by private IP data providers (such as Thompson or MicroPatent) and IP consultancies (such as Chi Research).
Beyond patents, other kinds of IP and technology data provide information resources important to agricultural researchers:
• Plant varieties protected by Plant Variety Protection Certificates (PVPCs) in the United States and by similar nonpatent "sui generis " plant variety protection systems in other countries in accordance with UPOV.
• Seed bank or germplasm collections data (from the USDA, the CGIAR, etc.).
• Gene sequences and protein sequences claimed in patents (listed in Derwent's GENESEQ database).
• Publicly available genomic data on major crops and pests (some already listed in the N.I.H.'s GenBank database).
Additionally, an informatics solution could help augment the flow of public and traditional agricultural knowledge and technologies, providing a centralized, user-friendly, and consistently indexed registry for nonproprietary, "shareware"-like agricultural techniques, especially sustainable agroecological, biocontrol, and integrated pest management methods that are not patented but published in articles, reports, or other research outlets. The timely publication and ready availability of technical disclosures assures that the technologies cannot later be patented. A forum for sharing such information could engender something like an "open source" legal environment for many agricultural technologies.
In general, an IP informatics tool answers the initial question, "Who has innovated or patented what?" It allows technology users to identify and select a needed technology and then to decide upon appropriate IP management tactics, such as whether to invent around or to negotiate with a patent owner. However, such IP information and the expertise needed to use it effectively are not readily available to all agricultural research organizations. Larger corporations have already invested significant amounts subscribing to and installing some of these in-house IP information analysis and management systems and hiring IP legal counsel.
In the final analysis, any IP informatics service functions to augment individual organizations' internal capacities to manage IP. It thereby informs organizations' unilateral strategies and occasionally promotes bilateral transactions. While the universal availability of IP informatics would be a necessary foundation for more market-oriented patent exchange mechanisms or multi-party collective rights organizations, IP informatics alone cannot solve the tragedy of the anti-commons.
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