Costs, Norms, and Inertia: Avoiding an Anticommons for Proprietary Research Tools

A decade ago the scientific community was sounding alann bells about the impact of intellectual property on the ability of scientists to do their work. Protracted negotiations over access to patented mice and genes, scientific databases, and tangible research materials all pointed toward the same conclusion: that intellectual property claims were undennining traditional sharing norms to the detriment of science. Michael Heller and I highlighted one dimension of this concern: that too many intellectual property rights in \u27upstream\u27 research results could paradoxically restrict \u27downstream\u27 research and product development by making it too costly and burdensome to collect all the necessary licenses. Since that time numerous empirical studies have sought to measure the impact of intellectual property on research scientists, and found fewer impediments to academic research than policymakers may have projected on the basis of early salient controversies. Outside the field of genetic testing, most scientists report no difficulties in attempting to acquire IP-protected technologies, and only a small percentage report significant delays in research or having to abandon a project because of IP. Even in fields characterized by extensive patenting, many academic researchers seem to be either oblivious to the patents they might be infringing or unconcerned about potential infringement liability. More significant to researchers than patents as such have been restrictions on access to materials and data, such as requirements for institutional assent to the terms of materials transfer agreements. In one survey, 19% reported that their most recent request for materials was denied, and many reported that, in the past two years, failure to receive requested materials led to significant delays and even to abandonment of projects. Scientists are far more likely to encounter obstacles in their efforts to gain access to materials and unpublished data than they are to encounter patent enforcement