Resistance to commercialisation

14.8 One factor that may prevent genetic research from being patented and subsequently commercialised is researcher resistance to obtaining and exploiting patents. It has been suggested that some academic researchers resist patenting and commercialisation because of perceptions that commercially focused work is ‘dirty’ science.^[5] A recent study of biotechnology patenting and technology transfer practices by Nicol and Nielsen (Nicol–Nielsen Study) reported:

one respondent said that researchers hate patents, and see patenting as prostitution, but they pay the bills. Another said that some researchers just don’t want to know about patents and others make jibes about the patent system. He described attempts to change attitudes about patents in the research sector as ‘trying to turn around a big ship’.^[6]

14.9 In 2003, Research Australia released the Health & Medical Researcher Opinion Poll 2003 (Researcher Opinion Poll),a survey of health and medical researcher attitudes to, among other issues, research commercialisation.^[7] Respondents, who included researchers at universities, hospitals, medical research institutes, and pharmaceutical and biotechnology companies, were asked to rate the importance of a variety of research outcomes. Only 55% of respondents rated patenting research results as important, while 99% rated improving health outcomes as important. The survey findings also suggested that researchers were reticent about commercialising their research. Only 40% agreed that they would like to be involved in the commercialisation process, while 34% said that they would not like to be involved at all.^[8]

14.10 Some comments received in submissions and consultations also suggested that there is an anti-commercialisation attitude prevalent among researchers.^[9] Bio Innovation SA suggested that this might in part be because some researchers do not regard commercially focused science as ‘real’ science, or because of a belief that placing research results in the public domain without patenting them will allow others to benefit from the research.^[10] Another stated that:

Observation suggests that most scientists see patents and IP generally as a necessary evil that they wish would simply go away because of the work involved and costs of administration, associated with licensing for example. All of which interferes with their actual job of doing science.^[11]

14.11 Scientists may also resist commercialisation due to the practice within the scientific community of disseminating their research results freely and widely. This freedom may be restricted by the need to keep results confidential prior to making a patent application or due to contractual terms in licensing or collaborative agreements. The impact of secrecy requirements on scientific research is discussed further below.

14.12 Researchers may also not seek patents or pursue commercialisation because they regard other aspects of research activity as more important. Although most publicly funded research institutions provide for researchers to share in royalties flowing from the successful commercialisation of an invention, this may not be a sufficient incentive for some researchers to put in the time required to apply for and exploit a patent.^[12]

14.13 Another cause of this resistance is that applying for patents may reduce the time available for researchers to pursue other activities that may be more likely to contribute to career progression. For academic researchers, publishing research results is an important factor in obtaining funding grants and career progression, as a good publication record affords both prestige and evidence of research excellence.^[13]

14.14 The 2003 Department of Education, Science and Training report, Analysis of the Legal Framework for Patent Ownership in Publicly Funded Research Institutions (DEST Report) suggested that wariness about patenting can be partially attributed to that fact that:

academic performance appraisal is still often based on publication or grants received rather than efforts to commercialise. Not only does this provide inadequate incentive to commercialise, but when ‘commercialisation activities remove them from “mainstream” activities’ it can jeopardise academics’ chances for promotion and thus act as a disincentive.^[14]

14.15 Similarly, a 1999 survey by Toss Gascoigne and Jenni Metcalfe (Gascoigne–Metcalfe Survey) of 126 scientists across Australia reported that some participants criticised research organisations ‘for making promotions and appointments on the basis of the number of academic papers an applicant had published rather than commercial activities, notwithstanding formal policies to the contrary’.^[15]

14.16 According to the DEST Report, although some universities have begun to include commercialisation activity as a criterion for assessing performance, the practice is still not widespread: ‘Instead, it seems that grants and publications are the primary criterion used in promotions’.^[16]

14.17 On the other hand, the ALRC also heard that promotion panels and research grant committees have procedures for taking patents into account in assessing researchers’ track records.^[17] For example, the Australian Research Council (ARC) commented that it is relatively straightforward to balance publications and patents in assessing the research record of applicants for grants or before promotion panels. An assessment of an applicant’s research ability can be made even where they hold patents but have no publications.^[18] The National Health and Medical Research Council (NHMRC) also commented that it is possible, when assessing funding applications, to develop a ‘record of research achievement’ that includes the applicant’s patents and publications.^[19]

14.18 Research culture appears to be changing, and resistance to commercialisation among researchers decreasing.^[20] Respondents to the Nicol–Nielsen Study suggested a number of reasons for the change. These included the preference of funding bodies such as the ARC and the NHMRC for funding research with commercial potential; the need to obtain funding from the private sector due to a lack of public sector funding; the desire for economic viability, and for some, the view that successful commercial exploitation may be lucrative.^[21] Changed attitudes have also been attributed to researcher experience working within Cooperative Research Centres.^[22]

Submissions and consultations

14.19 It was generally recognised that in the increasingly commercialised research environment, publication is often delayed because organisations seek to protect their positions with regard to intellectual property.^[23] While this does not necessarily have a significant impact on the overall progress of science,^[24] some concern was expressed about the possible impact of publication constraints on the careers of individual researchers.^[25] It was suggested that there is a need to change the system of grant assessment to recognise experience in commercialisation and obtaining patents, as well as research record as indicators of research success.^[26]

14.20 DP 68 asked for comments on disincentives to patenting of genetic research that affect researchers, including the weight given to patents in assessing the research record of grant applicants. Generally, submissions commented that the weight given to patents in these procedures is correct, and that patents are increasingly recognised as an indicator of achievement.^[27]

14.21 The NHMRC stated that it takes account of a grant applicant’s track record, including patenting and commercialisation, in assessing applications. However, it noted that the weight given to patenting in assessing research records varies with the type of grant. The NHMRC also stated that it is currently reviewing its processes for assessing the track record of research achievement, including how patenting and commercialisation should be considered as part of the overall achievement of the applicant.^[28]

Options for reform

14.22 One solution to researchers’ reluctance to patent and commercialise is to seek to change the research culture. A range of measures to promote a culture that is positive towards commercialisation has been recommended in recent reports. These include suggestions and recommendations that:

• Australian academic, research and funding bodies should develop ways to incorporate commercial measures of research outcomes, such as patents and receipt of industry funding, when assessing the performance of a researcher, project or institution;

• successful commercialisation role models should be highlighted and networks for mentorship be established and promoted to researchers;

• institutions should create the right academic environment, in which individuals and institutions are ‘committed to increasing the opportunities and rewards for commercialisation’ by improving understanding of the commercialisation process within the institution and establishing policies for intellectual property ownership and management;^[29] and

• researchers should be provided with incentives to develop technology commercially, including royalty-sharing arrangements, the ability to hold equity and accept directorships in biotechnology companies; and the capacity to move between academia and industry should be facilitated.^[30]

14.23 Such arrangements are in place at many research organisations. In 2001, the ARC released the National Principles of Intellectual Property Management for Publicly Funded Research (National Principles), which stipulate that publicly funded research institutions should provide researchers with adequate incentives to participate in the commercialisation process.^[31]

14.24 The DEST Report recommended implementing an expanded National Principlesmodel, placing greater emphasis on the need for institutions to ensure competing demands on researchers do not act as a disincentive to participation in commercialisation. It suggested this should include recognising commercialisation activity as a criterion for assessing performance.^[32]

ALRC’s views

14.25 The ALRC supports the policies and actions of the ARC and NHMRC in seeking to promote commercialisation in appropriate cases. The ALRC endorses moves that are being made by funding bodies and research organisations to ensure adequate weight is given to patents as an indicator of research achievement. However, given the perception among some researchers that patents are not adequately valued, the ALRC, while not making a recommendation in this area, suggests there is a need for funding bodies and research organisations to continue to address this perception.