Policy Levers for Innovation in R&D

This article explores challenges faced in corporate research and development, emphasizing government support, public-private partnerships, and the complex relationship between patents and innovation. It discusses key policy conclusions to strengthen foundational research funding.

• Policy
• Innovation
• R&D
• Government
• Corporate

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Presentation Transcript

1. Summary and Policy Levers Arti K. Rai Elvin R. Latty Professor Duke Law School

2. Summary of Challenges Corporate R declining pressures of global competition short-termism in key industries, e.g. materials science Startups not picking up slack R still critical foundation for innovation corporate patents cite to R

3. What To Do? Government support of R Especially physical sciences, engineering Public-private partnerships to bridge Valley of Death Public-private partnerships on industry-wide challenges (e.g. University of Delaware and NIIMBL) see also W. Nicholson Price & Arti Rai, Manufacturing Barriers to Biologics Innovation and Competition, 101 IOWA L.REV. 1023 (2016)

4. What About IP? Historically, Congress has often looked to IP e.g. Bayh-Dole Act of 1980; creation of CAFC in 1982 Recent hot topics in IP Patent Trial and Appeals Board (PTAB) Section 101 patentable subject matter

5. Proceed With Caution Obviously not cause of business R share decline, which has been occurring since 1980s Patents have complex relationship to R incentive (first innovator or exclusive licensee) vs. transaction cost/tax (subsequent innovators) Evidence that PTAB is (as intended) a substitute for litigation

6. PTAB (substitution plus other goals) At Least One Prior Defendant On Petition % of Petitioners Who Are Prior Defendants 100% 100% 90% 90% 80% 80% 70% 70% 60% 60% 50% 50% 40% 40% 30% 30% 20% 20% 10% 10% 0% 0% Cmp&C mm Drgs&M ed Cmp&C mm Drgs&M ed Chem Elec Mech Others Chem Elec Mech Others Share Share 77.9% 76.3% 48.5% 76.7% 53.1% 65.5% 68.8% 81.5% 70.8% 84.3% 70.2% 82.6% Strategic Decisionmaking in Dual PTAB and District Court Proceedings, Berkeley Technology Law Journal 31: 45-116 (2016) (with Vishnubhakat and Kesan)

7. Section 101 May be issue for medical diagnostics But IPO, AIPLA proposals sweep too broadly

8. Key Policy Conclusions Strengthen public funding of foundational/translational research Including through public-private partnerships