Balkinization: Public-Private Partnerships

Public-Private Partnerships

Guest Blogger

Liza S. Vertinsky

For the conference on Innovation Law Beyond IP at Yale Law School

Public-private partnerships are critical innovation strategies for solving problems that are both too important to ignore and too big for any one actor or sector to tackle alone. These hybrid partnerships form the backbone of current U.S. strategies to accelerate biomedical innovation in areas where traditional modes of drug discovery and development have repeatedly failed. While public-private partnerships have proliferated in major disease areas, and much is riding on their success, current knowledge of how to make them work more effectively to satisfy public health goals is inadequate. In Public-Private Partnerships as Innovation Strategies, which I will be presenting at the Yale ISP’s Innovation Law Beyond IP conference, I examine the use of public-private partnerships as vehicles for accelerating biomedical innovation. I focus on how intellectual property rules intersect with current partnership strategies in ways that may limit their ability to reach their public health goals.

U.S. government strategies for accelerating biomedical innovation have focused primarily on “pre-competitive” public-private partnerships. Public-private partnerships are generally defined as collaborative arrangements between one or more public (government) and one or more private entities to combine their resources, data and knowledge in pursuit of shared goals and mandates. Pre-competitive public-private partnerships are partnerships where public and private resources and human capital can be usefully pooled and the results shared broadly and freely without impinging on the competitive interests of private partners. I argue that this policy focus on “pre-competitive” partnerships may be misguided for two reasons. First, to ignore the competitive aspects of these partnerships, particularly those that include fierce market competitors, may lead to sub-optimal outcomes. Second, the need to support cooperative intellectual production and the free and open sharing of results in drug discovery and development efforts extends far beyond the limited areas that private participants deem to be “pre-competitive.” Greater cooperation and sharing of resources and knowledge are urgently needed

in stages of drug discovery and development that are unquestionably driven by market competition.

I suggest that public-private partnership strategies must respond more directly to the tensions between the cooperative and competitive aspects of public-private partnerships. Many of the tools and discoveries that are useful in advancing biomedical innovation have dual roles as broadly enabling technologies and as potential sources of competitive advantage. Policy makers may be able to influence the boundaries between what becomes broadly available as a platform for further innovation and what is protected as a proprietary asset.

Building on my earlier study of cooperative innovation, I focus on ways in which patents may disadvantage the cooperative mechanisms upon which public-private partnerships rely, thus limiting their scope and reducing their productivity. Where research tools, data, and early stage research discoveries could serve either as broadly enabling inputs or as proprietary assets that confer competitive advantages, for example, patents may tilt the balance towards proprietary innovation. I go on to propose a limited statutory patent fair use as one way of protecting and expanding the reach of the cooperative mechanisms on which public-private partnership strategies rely.

To illustrate the potential, as well as the limits, of current public-private partnership strategies, as well as the role of patents in limiting these strategies, I draw examples from the current national strategy to accelerate the discovery of a cure for Alzheimer’s disease. This national strategy relies primarily on coordinating research and development efforts and promoting public-private partnerships to achieve its goal of finding a cure for Alzheimer’s disease and other associated dementias by 2025. A statutory patent fair use that protects uses of research tools and other broadly enabling drug discovery technologies, perhaps even experimentation on early stage drug candidates, where used in furtherance of the search for a cure for Alzheimer’s disease, might facilitate concerted public-private efforts to solve this growing public health problem.

Liza S. Vertinsky is an assistant professor of law at Emory. She can be reached at lvertin at emory.edu

Posted 8:41 PM by Guest Blogger [link]