Patent rights and the free research

Abstract

This article considers patent rights and the free research. As a case in point, it explores the stem cell research, patenting and licensing practice, including reach through license clauses targeting royalty revenue for future inventions. It compares various jurisdictions, focusing on the different approaches to research funding and patentability from Europe and the US. Sections 2 and 3 set up the economical considerations behind the patent system, contrasting free research to investment returns. Sections 4 and 5 explore the ethical debate and patenting of stem cells, covering the birth of a rising technology and various licensing schemes. Sections 6 and 7 consider the potential use of a patent misuse doctrine to control excessive demands separate from any allegations of antitrust violation. The conclusion contends that a patent misuse doctrine may be better suited to halt any improper use of stem cell and typical research tool patents than attacking the patents themselves.

Keywords::

• antitrust law
• biotechnology
• free research
• patent law
• patent misuse doctrine
• reach through licensing
• research tool
• stem cells

About the author

Li Westerlund is the Director of Intellectual Property Rights at the Danish biopharmaceutical company Bavarian Nordic A/S, focusing on global patent enforcement and intellectual property strategies. Dr Westerlund is a Swedish lawyer and a US Attorney-at-Law (CA-bar). She is also appointed Professor of Law in Swedish and international patent law at Linköping University, Sweden.