Proprietary Challenges

Chander A and M Sunder. The Romance of the Public Domain. California Law Review. 2004: 92.
While the public domain is open to everyone by the force of the law, “in practice, differing circumstances—including knowledge, wealth, power, access, and ability—render some better able than others to exploit a commons.” The authors examine legal aspects and broader impact of public domain in the context of genetic resources and global intellectual property, such as who pays for public domain, conflicts between public and private interests, disparity in access and use of the commons, and strategies for resolving them.

*Walsh JP, Cho C, Cohen WM. View from the Bench: Patents and Material Transfers. Science. 2005 September 23; 309(5743): 2002-2003.
The authors report findings for a survey of 414 biomedical researchers in universities, government, and nonprofit institutions. Based on empirical data, the authors argue that there is little evidence to validate the claim that restricted access to IP is impeding biomedical research, but there is evidence that access to material research inputs is restricted more often, and individual research projects can suffer as a consequence. It is unclear whether patent policy contributes to restricted access to materials, although the commercial activities fostered by patent policy do seem to restrict sharing, as do the burden of producing materials and scientific competition. Scientific progress will depend on how these issues effect social welfare and the enforcement and monitoring of applicable NIH guidelines.

Walsh JP, Huang, H. Research tool access in the age of IP society: results from a survey of Japanese scientists. 2007. AAAS, Washington DC.
The authors present results of a survey of almost 1000 researchers in Japan. They find that “Japanese university and public research institute scientists are rarely affected by others patents, but that secrecy and IP associated with publications may be interfering with “open science” in Japan.”

Cook-Deegan R. The science commons in health research: structure, function and value. Journal of Technology Transfer, 2007. 32(3): 133-156.
The author discusses the importance and benefits of science commons, or open science, in society. Topics covered include: public and private issues of genomics research, the debates surrounding the Human Genome Project, efficiency and other gains from open science, application of science commons in public health, public inputs to private science, cost of data access and efficiency, and policies that help to protect the science commons.

Knowles L, Bubela T. Challenges for intellectual property management of HIV vaccine-related research and development: part 1, the global context. Health Law Journal. 2008;16: 55-95.
In the context of the Canadian HIV Vaccine Initiative, the authors analyze non-science barriers relevant to the project. Some of these non-science barriers include inadequate funding for research, difficulties with manufacturing and distributing vaccines and developing “creative research networks and collaborative models.”  The authors consult many professionals in intellectual property law and ethics and advance a number of recommendations to overcome these barriers.

Nicol D. Strategies for dissemination of university knowledge. Health Law Journal. 2008;16: 207-35.
The author explores the implications of the movement to attach commercial value to university knowledge dissemination. She then considers alternate models for knowledge dissemination. Collaborative mechanisms for knowledge dissemination are examined in both the linear and outside the linear model. More open mechanisms for dissemination with commercial value developing over a much longer term are also considered.

*Heaney C, Carbone J, Gold ER, Bubela T, Holman CM, Colaianni A, Lewis T, Cook-Deegan R. The Perils of Taking Property Too Far. Stanford Journal of Law, Science and Policy. 2009 May;1: 46-64.
The authors analyze the cases of two health organizations, particularly focusing on how each organization kept stakeholders in the dark and threatened them over patents. By analyzing the experiences of these two organizations, the authors recommend that biobanks should implement a proactive culture of sharing and use relevant laws to enhance collaborations.

Editors. Drug Companies Should Be Held More Accountable for Their Human Rights Responsibilities Public Library of Science Medicine. 2010 September; 7(9): 1-2.
The PLoS Medicine editors describe three unique perspectives on the question of whether drug companies are living up to their human rights responsibilities. Sofia Gruskin and Zyde Raad from the Harvard School of Public Health say more assessment is needed of such obligations; Geralyn Ritter, Vice President of Global Health Policy and Corporate Social Responsibility at Merck & Co., argues that multiple stakeholders could do more to help States deliver the right to health; and Paul Hunt and Rajat Khosla offer their reflections on Mr. Hunt’s work as the UN Special Rapporteur on the right to the highest attainable state of health (2002–2008), which culminated in the first ‘‘Human Rights Guidelines for Pharmaceutical Companies’’. This PLoS Medicine Debate comes two years after the release of the Guidelines and a year after Mr. Hunt’s report on his invited mission to review the policies and practices of GlaxoSmithKline (GSK) was submitted to the UN Human Rights Council. Together these perspectives and reports make clear that the responsibilities of pharmaceutical companies go beyond stakeholder value to encompass human rights. What is also clear is that more accountability is now needed.

Gruskin S and Raad Z. Drug Companies Should Be Held More Accountable for Their Human Rights Responsibilitie? Moving Toward Assessment. PLoS Medicine. 2010 September; 7(9): 1-3.

Ritter GS. Drug Companies Should Be Held More Accountable for Their Human Rights Responsibilities? The Merck Perspective. PLoS Medicine. 2010 September; 7(9): 1-2.

Hunt P and Khosla R. Drug Companies Should Be Held More Accountable for Their Human Rights Responsibilities? The Perspective of the Former United Nations Special Rappaorteur (2002-2008). PLoS Medicine. 2010 September; 7(9): 1-3.

*Note: entries are presented in chronological order within each category. Entries marked with an asterisk are those that we found to be particularly helpful as we developed materials for this project.

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