JIN-294 -- A Flutter in the Ivory Tower

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J@pan Inc Magazine Presents:

T H E J @ P A N I N C N E W S L E T T E R

Commentary on the Week's Business, Technology and Cultural News
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Issue No. 294
Sunday, October 24, 2004
TOKYO

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CONTENTS

@@ VIEWPOINT: A Flutter in the Ivory Tower

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@@ VIEWPOINT: A Flutter in the Ivory Tower
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Even academic research can infringe on patents.

A draft prepared by the Japan Patent Office at the end of September
is creating a flutter in the Ivory Tower The reason: it negates
the convention that universities using patented technology
without permission are exempted from the patent law insofar as such use
advances learning. Some university researchers fear that if they do not
obtain prior permission they will not be able to conduct experiments and
their research will grind to a halt. There is an urgent need to formulate
rules to forestall lawsuits.

“Much scholarship does not result from a flash of inspiration but is
the accumulation of the fruit of previous researchers,”says Hiroshi
Konno, a professor of financial technology at Chuo University in Tokyo.
“If all the results of research are patented, the scientific community
will suffer a great loss.” This is the leitmotif of his talks on the
lecture circuit.

Professor Konno stresses that things such as mathematical solutions
are not easily patentable. If monopolies are granted for various
achievements, fewer researchers will enter those fields because there
will be no more inventions and discoveries to drive scientific progress.
For that reason alone the draft of the report has instilled a sense of
crisis in the professor.

The patent law says experiments and research are exceptions beyond
the scope of patent rights. For that reason many university and other
scientists have used patented research without permission. However,
the government's Strategic Council on Intellectual Property opined
last year that as matters now stand, because a university and company
could for the purpose of joint research use a rival company's technology
without permission, it is necessary to impose uniform restrictions to
prevent the hindrance of cooperation between academia and industry.
Thereupon it requested the Patent Office present its views.

The Patent Office initiated discussion in the Council on Industrial
Structure (an advisory body to the Ministry of Economy, Trade and Industry),
and the council concluded that research is the principal mission of a
university but if in the pursuit of that mission it uses patented technology
without permission, even if such use is noncommercial, it infringes on
rights. Furthermore, the council limited exemptions to experiments to
ascertain the value of a patent application or to research designed to
upgrade technology.

Recently, Japanese universities have been eager to acquire licensing
revenues from technical transfers. The mainstream view in industrial
circles is that as a matter of course they should protect their rights
by requiring universities to license technology. The Council on Industrial
Structure, in spite of a request from a university committee for the
discount of licensing fees and for other consideration, did not support
the convention of exempting from the patent law research for academic
purposes.

Balancing the competing interests of research and intellectual property
protection is a matter of concern to researchers throughout the world.
There will be a brain drain to countries that take a broad view of
exceptions to patent laws for experiments and research. Japanese
participants in the 2004 annual meeting of the American Association for
the Advancement of Science (AAAS), held in Washington DC in February,
heard expressions of concern from many American researchers.

Two years ago the AAAS launched a fact-finding study on balancing the
claims of academic research and intellectual property protection in
response to a U.S Supreme Court decision that a university's conducting
research for business purposes without permission from patent holders
constituted infringement. The AAAS hopes to formulate measures for
disseminating research results while continuing to give consideration
to intellectual property protection.

But such a balance is elusive. If the scope of intellectual property
protection is narrowed, it will cool the ardor of researchers of an
entrepreneurial bent; conversely, if the scope of protection is made
too broad, it could stifle new research.

Some researchers at national universities complain that with the way
restructuring is taking place today, their concessions to industry
have made their research look like business.

However, Japanese researchers can't escape the global trend toward
emphasis on intellectual property protection. It's time the Japanese
government demonstrated more leadership in balancing researchers' right
to know and corporations' right to own. It could, for example, partly
subsidize the licensing fees paid by universities. Japan, which flourishes
through exporting products with added value, can afford neither a drain of
scientific brains nor the Balkanization of knowledge.

-- Burritt Sabin

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EDITOR
Written and edited by Burritt Sabin (editors2@japaninc.com)

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