What can we expect from the lawyers ? Summer school – Open science in practice EPFL- campus, September 28, 2017 Open science What can we expect from the lawyers ? Michel Jaccard

Introduction. Intellectual Property. Open Science. summary Introduction. Intellectual Property. Open Science. Challenges. IP and/or Open Science ? The way forward and a few personal thoughts

I. Intellectual property Intellectual property (IP) refers to creations of the mind, such as inventions; literary and artistic works; designs; and symbols, names and images used in commerce (WIPO) Ideas are free; the use of concrete expressions and “applications” may be restricted to foster research and innovation Two main categories within IP : industrial property (patents) and copyright

Protection of a technical invention | industrial process I.A. Patent law Protection of a technical invention | industrial process The invention must solve a problem in a new, non- obvious and technical way A patent grants its owner the right to enjoin others from using the invention for up to 20 years As the patent is published, the process is not entirely closed

I.B. Copyright law Creation of the mind with sufficient originality | individuality (broad definition) Copyright also covers non literary works, such as software (source code) Automatic protection (no application to a register) for a limited duration (50/70 years after the death of the author) Copyright inclue software source-code

Science : always considered a common | public good II. Open science «New approach of the scientific process based on a cooperative work and new ways of diffusing knowledge by using digital technologies and collaborative tools» (European Commission, 2016) Science : always considered a common | public good “As open as possible, as closed as necessary”

III. Intellectual property vs open science Individual, commercial ownership… …exercising strict control over limited use… …with a view to maximize financial “returns”… Collective, flexible and broad ownership… …encouraging extensive use and sharing… …without clear financial “returns”…

III. Intellectual property vs open science Bridging the gap ? Patent pooling Open source licensing Creative commons publishing Open access, open innovation models

III.A. Patent law - patent poolS Agreement among patent owners to license one or more of their patents to one another or to third parties (cross-licensing) Often associated with complex technologies (e.g. smartphones) Example: Open Innovation Network (OIN)

III.B. Copyright – open source/open access/creative commons

Example: Netflix improved search prediction algorithms III.C. Open innovation The open innovation model pushes companies to open up their innovation process, as opposed to a model of internal process (R&D) Nearly as mandatory now for certain industries as using the words blockchain or AI on one’s website… Example: Netflix improved search prediction algorithms

III. Intellectual Property VS open science What can we expect from the lawyers ? Quite a lot, as several legal tools are in place now to make sure open science is – in practice – possible However, whatever has been designed until now works as a kind of workaround / temporary fix: Patent pools are designed to counter frivolous attacks by trolls – but sometimes they act no better than cartels Open source works fine in principle (for software). In practice, there is still a lot of FUD and uncertainties (as the whole idea is to keep the copyright principles working, meaning you need an owner) Creative Commons is difficult to implement for tailor made solutions

III. Intellectual Property VS open science What is needed is a clear policy push to encourage open science by design and by default – and the Universities have a significant role to play Agreements with researchers - duty to disclose, share and publish. Agreements with industry - need to focus on data ownership / freedom to use research data. Tech transfer offices - currently offer no flexibility at all. Academia Consortium Agreements- make sure to promote best practices in sharing

Questions id est avocats MICHEL JACCARD Email Michel.Jaccard@idest.pro URL www.idest.pro Twitter @idestavocats