N. 15, June - July 2004 
Editorial 

Public research and the public good: squaring the circle
Antony Taubmann
Acting Director and Head,
Global Intellectual Property Issues,
Traditional Knowledge Division, WIPO
 
Public resources are not invested in research to privilege individual enterprises but to generate tangible benefits for the general public. Public research often targets areas of greatest public need, like health and agriculture. There are high expectations that public research should serve the public. But how should the public stock of new technological knowledge be managed to meet these expectations and deliver the goods?

If innovation is truly to be in the public interest, it cannot remain an abstract concept, but must reach the public as a finished product that is functional and economic. Proponents of the intellectual property (IP) system typically stress that it provides private actors with a rational incentive to invest in socially valuable research and development. But when it comes to delivering the benefits of innovation, private incentive is often viewed as conflicting with the public's need for optimal access to new technologies. The logic of IP rights is to exclude: creating a private right to deny or limit third party use of what is protected. This creates an apparent paradox: a policy tool that is meant to promote public welfare in new technologies operates by excluding access to those technologies.

Squaring this circle has been a continuing legal and policy challenge from the early days of the patent system: how to stimulate beneficial innovation by private players, while ensuring that the public enjoys tangible benefits? The public and private domains have evolved over time in a search for the right balance. For instance, the English Statute of Monopolies aimed to eliminate harmful monopolies based 'upon misinformations and untrue pretences of public good', but consciously carved out an exception for legitimate patents of inventions. This reflects a judgement that such exclusive rights serve public and private interests in conjunction, and that open access for all would impair the public good. That paradox again: limited exclusion as a public good.

This logic might hold together when society relies on private innovation to serve public interest, provided it moves away from a static, zero-sum view of innovation, and considers that the public expects private investment to develop new technologies as finished products. Even so, this means limiting the public domain in terms of commercial application of the technology. Public technological discourse is only enhanced by the patent process, which is purpose-built to transfer private knowledge into the public domain of useful technological information. In principle then, a new technology is first published and made generally known; then private interest in the invention is defined through limiting any exclusive right to the commercial use of what is a genuine invention.

But does this logic apply when the public pays for research? Shouldn't the fruits of that research enter the public domain, and not be shrouded in exclusivity? Traditionally, the management of public research has taken this approach, effectively conflating the public domain and the public good. Yet the growing realization that this choice can - in practice - ultimately work against the public interest yields a fundamental insight into the nature of innovation in a market economy. Of course much research properly resides in the public domain: the human genome project is an iconic example. Private interests also choose to defend their interests by preemptively placing some research in the public domain.

In practice, though, to apply public research insights and to transform them into practical, available new technologies requires judicious use of a wider range of tools than reliance on the public domain. Eschewing exclusive rights altogether may mean that public research is available on the library shelf, yet deters those who need to invest risk and resources into its practical employment and transformation into usable products. It can mean that private foreign interests benefit from public innovation, free-riding on research, developing and applying it, and creating new products which are sold back to the originating country. Knowledge management solely through the public domain can mean that others decide how research outcomes are taken up, if at all, and who is to benefit.

At one level, knowledge is the definitive public good - like safe water and clean air. Yet given the practical dilemmas over the effective management of public research, knowledge governance and public innovation policy (systemic IP management for public welfare) is in itself a higher order of public good. Shrewd, informed and objective use of exclusive IP rights is one element of the mix of policy measures to transform research insights into a tangible public benefit. This entails recognizing where the public domain and the public interests diverge, and managing exclusive rights to focus resources on beneficial innovation and the optimal practical application of that innovation.