Patent law creates economic incentives for individuals and companies to invest in
research and development, as well as to disclose publicly and commercialize new
inventions. In creating these incentives, patents also impose costs on society through
reduced access to new inventions. Generally, the benefits of the patent system outweigh
the costs, but in new and rapidly developing industries the patent system itself can act as
a barrier to the development of new technologies. This is of particular concern in the
biotechnology industry where a proliferation of patents on basic and fundamental
research tools risks hindering further innovation.
This problem was first noted by US academics where patent rights are generally
considered absolute. In contrast to the US, there are mechanisms already in place within
the Canadian patent system that can be used to balance the public interest in access to
technologies with the private interest promoted by patents. Two such mechanisms are
studied in depth and compared: experimental use and compulsory licensing. Current
conceptions of the experimental use exception to patent infringement are inadequate to
deal with abuses found when research tools are patented and an expanded experimental
use exception is therefore proposed to address the deficiencies found in the current law.
In comparison, existing compulsory licensing provisions within the Competition and
Patent Acts are generally sufficient to ensure access to needed research tools. The
essential facilities doctrine developed through US antitrust laws provides assistance in
determining when such compulsory licences should be granted.
Compulsory licensing has certain advantages over an expanded experimental use
exception: it would only be used for tools where there are no reasonable alternatives
available to the scientist; and it is more likely to be compliant with Canada's international
obligations. Ultimately, however, an expanded experimental use exception is preferred
since it more quickly and easily puts the tools required for research into the hands of the
scientists. / Law, Peter A. Allard School of / Graduate
| Identifer | oai:union.ndltd.org:UBC/oai:circle.library.ubc.ca:2429/16808 |
| Date | 11 1900 |
| Creators | Tuomi, William Victor |
| Source Sets | University of British Columbia |
| Language | English |
| Detected Language | English |
| Type | Text, Thesis/Dissertation |
| Rights | For non-commercial purposes only, such as research, private study and education. Additional conditions apply, see Terms of Use https://open.library.ubc.ca/terms_of_use. |
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