[cc-community] Patent research exemption

John Wilbanks wilbanks at creativecommons.org
Thu Feb 12 12:13:28 EST 2009

> Today CC announced a new project aimed at re-creating the so-called
> "research exemption" for patents in the U.S.:
> http://creativecommons.org/weblog/entry/12734
> I remember a few years ago, when Science Commons was starting, this was
> an area many people expected SC to move quickly into. But the word then
> was that patents are not a significant barrier to academic research (I
> could swear I remember Wilbanks saying something almost verbatim like that).
> What changed the calculus? Or am I remembering this wrong?

The primary change here is not that academics are blocked by the 
existence of patents - most academics flagrantly violate when they feel 
the need, or simply exist unaware of patents. That remains the same.

What changed is that we were approached by some large patent holders - 
multinational companies like Nike - that want to share with each other, 
and in so doing the rest of the world, for purposes like sustainability. 
As we looked into how we could design a solution for this problem, we 
realized that a core element of a solution should be the legalization of 
activities like research. Thus, the reconstruction of the research 
exemption, privately, by large private patent holders, can be a core 
element that allows for research into sustainability.

We can then connect to those research rights some form of standard 
contract regime that goes beyond research - imagine a standard-form 
contract that grants global commercial use rights on a patent for 
sustainability, but requires attribution, for example. Or one that 
requires a standard, yearly payment for commercial use in rare disease 
medicine. This kind of regime would bring enormous transparency to 
patent use - you could decide where to do your research based on where 
you could continue into a commercial use without a patent thicket, and 
without getting held over a barrel *after* you've created some value.

Such a system would however require a broad research exemption at its 
core. We've always wanted to tackle this - it was in our founding 
documents and papers as part of the second enclosure movement - but we 
never really saw the opportunity, and it wasn't killing a ton of 
research day to day. But when we got the chance to connect this idea to 
the idea of commercial use for sustainability (through a commons with 
attribution) and other "liability rules" like Jerome Reichman at Duke 
writes about...it was an obvious place to start with the research exemption.


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