The Study of Issues Concerning Material Transfer Agreement
Date Issued
2009
Date
2009
Author(s)
Shih, Ju-Ching
Abstract
In the field of biotechnology, it is often necessary for researchers to use the newest research results from other researchers in order to conduct research and development, which leads to the transfer of research results between institutions. Research results include tangible and intangible products. The “material” of tangible product is considered research tool, an upstream technology with high application and low substitution, having a close connection with downstream research and development. Therefore, “material transfer” is indispensible to researchers. In recent years, universities and firms in the U.S. usually use Material Transfer Agreement (MTA) to obtain materials in order to conduct research and development. Many institutions use the MTA effectively to offer materials in reasonable terms and conditions, however, the clauses in MTA preclude the widespread of materials between researchers has become more prevalent.In terms of the significance of materials or material-related patent in conducting research and development, as researchers often can not reach an agreement or impose unreasonable terms and conditions on material transfer and patent license, OECD and the government of several countries have issued guidelines to encourage the timely offer of materials or material-related patent in reasonable terms and conditions for research purposes. Since material or material-related patent is considered research tool, once the owner of material or holder of material-related patent refuses to offer or license, the downstream research and development may be precluded, and the competition in the relevant markets may be endangered. Thus how to protect the right of the owner of material or holder of material-related patent and the public interest of the freedom to conduct research and competition at the same time has become an important issue. In Chapter 1, I address the motivation and purposes of this study and illustrate the research methods and the organization of this study. In Chapter 2, I discuss as a researcher makes a material or complete an invention, whom the material and the invention should belong to. I illustrate the ownership of material and invention of the employee, and specifically focus on the ownership of result results in university. In Chapter 3, I focus on the problems caused by MTA widely used by researchers to transfer materials, and further introduce the “Uniform Biological Material Transfer Agreement” (UBMTA) issued by NIH for public and nonprofit institutions.In Chapter 4, I introduce the guidelines issued by OECD and the government of several countries to encourage the distribution of material and material-related patent. In Chapter 5, I elaborate on the condition of biotechnological industry in Taiwan. Although the owner of material or holder of material-related patent principally is free to refuse to deal or license, their freedom should be restricted in exceptional conditions. Furthermore, I discuss when their freedom should be restricted and when it is necessary to impose the obligation of compulsory deal or license on the owner of material or the holder of material-related patent from the perspectives of compulsory license system in patent law, the encouragement of the distribution of government-sponsored research result, and competition law. In Chapter 6, I summarize the conclusions of each Chapter.
Subjects
research result
material
research tool
material transfer agreement
compulsory license
march-in right
essential facility
Type
thesis
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