Biomedical Engineering Reference
In-Depth Information
implementation. Very few patents are untouched by other patents, as the vast
majority of innovation is incremental.
Richard Jefferson of Cambia (http://www.cambia.org/daisy/cambia/home.
html), a thought leader in open biology, explains with a simple example. If
Richard has patented a four-leg chair as well as the idea for chairs, it does not
block me from patenting a three-leg chair, but it does prevent me from manu-
facturing and selling that three-leg chair, because I do not have the right to
sell chairs at all without a license to Richard's patent. I in turn can block him
from selling a three-leg chair because I own the improvement patent. This
reality means that patents exist in a world of complicated claims, competing
ownership, and lengthy negotiations, one in which transparency in patent
landscapes is almost impossible [9]. We will return to this issue in the licensing
section, as it has real effects on the transactions around patents.
9.2.3
Trademark
A trademark is perhaps the least relevant aspect of IPR to the life sciences,
as it serves primarily to identify that some form of goods, products, or services
actually come from the owner of the mark. It is a quality indicator or an indi-
cator of brand differentiation; for example, think of the Nike swoosh, the
Coca-Cola bottle, or iconic Apple logo [10].
Trademarks might enter into collaborative discussions in the life sciences
in the naming of new entities or in the branding of drugs versus their generic
equivalents. Ambien™ may compete against generic zolpidem, but some con-
sumers prefer to trust the quality control processes that are associated with
the Ambien trademark. Trademarks can be words, logos, sentences, drawings,
and other elements.
9.2.4
Trade Secret
Some kinds of property are not amenable to the patent or the copyright system
and are thus well suited to trade secret regimes. A good example of this is the
recipe for Coca-Cola or Kentucky Fried Chicken. Both have been kept secret
for decades, protecting the respective company's interest.
Examples of the kinds of property subject to trade secret are formulas,
practices, processes, designs, instruments, patterns, and information. Trade
secrets typically carry three core qualities: First, they are unknown to the
general population; second, they give the owner of the secret an economic
advantage (and importantly, the advantage must be connected to the secrecy);
and third, the owner has to try to keep it secret [11].
Trade secrets are a major class of IPRs, although they rarely enter the con-
versation in the “open” IPR context, because a trade secret exists, by defi nition,
only if it is kept secret. Trade secrets and sharing, at least open sharing on the
Internet, do not coexist. Trade secrets in the life sciences could include a data-
base of compounds used for investigatory purposes (whose compositions of
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