reports (without comment) that more than
half of respondents believe that IP rights
impair the free and open exchange of materials
and/or research results18,23–25.
As noted above, several recent studies focus
exclusively on patented technologies. Murray
and Stern indicate that at least half of the citations
to papers reporting research that results in
a patent are made before the patent issues, and
around half are made before the patent application
is published27. Because infringement is
impossible before a patent issues, it is not surprising
that much use of research tools is not
directly restricted by a prior patent. Any methods
revealed in publications or presentations
can be copied without fear of infringement,
until a patent issues. In this environment, it is
not surprising that university administrators,
focused on protecting prospective IP rights,
want their scientists to protect their materials
with MTAs as soon as they can.
More generally, the patent-MTA dichotomy,
discussed in recent papers, is false. The recent
survey of US scientists reports that more scientists
(36%) acquired their last patented technology
through the use of a MTA than through a
nonexclusive or exclusive license (12% and 8%,
respectively)18.
Our findings, consistent with previous surveys,
support Eisenberg’s conjecture that “patents
in and of themselves might only rarely pose
an obstacle to the research plans of academic
scientists”19. Scientists by and large pay no
attention to the patent status of their research
tools because they rightly view themselves as
judgment-proof due to their lack of personal
resources. Patenting of research tools complicates
tool exchanges because it induces institutional
administrators, whose financial priorities
scientists do not generally share, to encourage
or mandate the use of MTAs in exchanges of
such tools. Our biologists’ accounts of recent
instances of delayed or blocked access to
research tools recognize this negative net effect
of the proliferation of university IP protection
after the Bayh-Dole Act of 1980.
An academic research exemption will not
discourage universities from insisting on negotiating
MTAs to protect their financial interests
in prospective commercialization of research
discoveries. But agreements between universities
and other nonprofit institutions to discourage
patenting of research tools used mainly by
scientists, or to foster sharing of proprietary
technology, could improve access to needed
research tools and increase research productivity.
The PIPRA and BiOS initiatives are examples
designed to facilitate such sharing in the
new, IP-dominated research environment.
Note: Supplementary information is available on the
Nature Biotechnology website.