Determining the proper owner of a patent, invention, or discovery in a corporate environment is usually very simple. Unless the researcher has a contract that states otherwise, all research conducted while in the employ of a private company becomes the property of the company. Works done at educational institutions is usually just the opposite. Unless the research prospectus specifically gives the educational institution the intellectual property rights to discoveries made in the course of the research, the rights are generally retained by the student (Madhavan, 1).
Madhavan’s information is based on laws in the United Kingdom, but is only minorly different from American law. Under American law, most “work for hire” results in the patent belonging to the employer whether the employer is a corporation or a university. The main key to this consideration is planning ahead and verifying via contract before beginning work with an employer who will own the rights to any intellectual property developed. This is especially important as world laws regarding intellectual property rights are in a major state of flux.
In the United States, the U. S. Patent Office in conjunction with attorneys who specialize in patents and other issues of intellectual property are holding a series of town meetings to consider reforming patent law. Though the patent office is one of the branches of the United States government specifically created by the American Constitution, patent and copyright laws are notoriously out of date and inefficient in a digital world. (Wayne, 1).
The problem facing most inventors, researchers and creative minds is not necessarily the ability to get a patent, but the ability to maintain it. Worldwide infringement on the intellectual rights of individuals, corporations and universities has raised the ire of actors, actresses, drug companies and governments. People around the world are complaining that their intellectual rights are being violated as computers download music and films just released to the theater show up in a black market deal.
Further complicating the issue is the discussion of when a work for hire becomes work for hire and who all can be considered co-inventors. In his address to a conference of patent attorneys, Martin J Adelman discussed a recent Canadian court ruling allowing government officials to be listed as joint inventors on a patent application. The case was convoluted to begin with, but got more complicated with the court ruling. (4) The case Adelman was discussing involved a patent on AZT, a drug developed for fighting cancer, but that didn’t work very well.
In the very beginning of the AIDS epidemic, Burroughs-Wellcome filed a patent application claiming that AZT, an anti-viral medication, was effective at combating the AIDS virus (Adelman 5). However, Burroughs-Wellcome had no ability to test their theory and the only researchers dealing with the AIDS virus at all were government scientists. They actually proved Burroughs-Wellcome’s claim to be true. An American court ruled that the scientists did not have a claim as co-inventors, but Canadian courts disagreed (Adelman, 5).
This type of on-going confusion about who owns what patent has led to a worldwide outcry and upheaval. The entire world is discussing what can be done to protect intellectual property rights and keep this type of confusion from spreading worldwide. One of the hottest areas of contention over intellectual rights is in the area of creative or copy written materials. Though this controversy began to spark to life more than a decade ago with Napster and free music downloads, the resolution has still not been found and the fight just keeps getting uglier.
As technology progresses at a rate faster than the law can keep up, it seems like new issues spring up almost daily. And, problems nearly a decade old still haven’t been resolved. For example, according to W3C, a watchdog organization in the late 1990s, one of the biggest controversies was found in website links to other websites. In some cases, to avoid the appearance of copyright infringement, one news organization would link to a story written by another news organization.
Although they were technically linking to the copyright owner’s website, the website would appear within the context of the other news organization, making it unclear to the reader who actually owned the copyright (W3C 1). While the story was written 10 years ago, the practice is still in debate today as the law has not been able to keep up with the technology. Another issue greatly in debate in a much more recent context is that status and treatment of patent rights around the world, especially dealing with medications.
In June, 2007, the United States Trade Representative said the American government is seriously considering legislation to deal with the problem of drug manufacturers that ignore patents. (Anders 1). The problem is complicated and ties intellectual property rights to the global community and to humanitarian efforts around the world. What happens is that a drug company researches, develops and markets a new drug for whatever use and then, long before their exclusive patent expires, other drug companies are making knock-off copycat drugs with similar chemical properties.
Copyrights and patents are completely ignored. (1) From a humanitarian approach, the knock-off drugs have appeals because they are invariably much cheaper than the original patent-holder’s version. This makes the drug more available to countries with emerging international economies, something the rest of the world approves of and in fact endorsed in the “Doha Declaration of 2001, which affirms the existence of certain “flexibilities” regarding medical patents’ protection provided under World Trade Organization (WTO) rules.
” (Anders 1) The downside, economically, is for the patent-holder, who in many cases bore great expense in the development of the medication and has not yet recouped those development costs when they suddenly lose a huge portion of the market share. As recently as June, the United States had disputes with Thailand and Brazil over these issues (Anders, 1). In a nutshell, that is the great debate of all forms of intellectual property rights at the moment.
Emerging nations around the world have the technology to copy materials that are already developed, but do not always have the technology to develop their own solutions to problems ranging from illness and disease. Because they do not have the money to invest in intellectual development, it is much more expedient to copy existing technology than to create their own. And, given that their economies are completely different from the economies of the Westernized and developed sections of the world, these countries often feel no compunctions about ignoring copyright and patent laws in an effort to get what they want and need.
Ultimately, the question comes down to one of international cooperation and assistance. If countries like the United States cannot help poorer countries get cheaper access to drugs that they desparately need for their populace, then it is likely that no amount of international scolding is going to prevent these countries from turning a blind eye to counterfeit products which are cheaper and do the same thing.
Likewise, if the poorer economies are not taking some action to assure the profitability of patents around the world, the developed nations have no impetus to help them. The cries for help are lost among the angry shouts over who owns that patent and why they aren’t making any money on it.
Works Cited Adelman, Martin J. “Ownership, Shop Rights, and the Work for Hire Doctrine” < http://www. law. washington. edu/CASRIP/Symposium/Number5/pub5atcl15. pdf>, July 24, 2007. https://www.law.uw.edu/