The freedom to tinker: Patent law and experimental use

This article considers the origins and the development of the defence of experimental use in patent law - the ’freedom to tinker'. It explores the impact of such an exemption upon a number of important industries - such as agriculture, biotechnology, and pharmaceutical drugs. This article takes a comparative approach in its analysis of patent law and experimental use. It highlights the competing norms, and lack of harmonization between a number of jurisdictions - including the United States, the European Union, and Australia. Section 2 provides a critique of the development of the common law defence of experimental use in the United States. It considers a series of precedents - including Roche Products Inc v Bolar Pharmaceuticals, Madey v Duke University, Integra Lifesciences I Ltd v Merck KgaA, and Applera v MJ Research. Section 3 explores the operation of patent law and experimental use in European jurisdictions. It looks at a number of significant precedents in the United Kingdom, the Netherlands, France, Italy, and Germany. Section 4 considers the policy debate in a number of forums over the defence of experimental use in Australia. It examines the controversy over Genetic Technologies Limited asking research organisations to obtain a licence in respect of its patents associated with non-coding DNA and genomic mapping. It also considers the inquiries of the Australian Law Reform Commission and the Advisory Council on Intellectual Property, as well as the impact of the TRIPS Agreement and the Australia-United States Free Trade Agreement. The conclusion contends that there is a need for a broad-based defence of experimental use for all the member states of the Organisation for Economic Co-operation and Development.

Education and the relation to the outside: A little real reality

One of the aims of Deleuze. Guattari. Schizoanalysis. Education. is to focus on the radical reconfiguration that education is undergoing, impacting educator, administrator, institution and ‘sector’ alike. More to the point, it is the responses to that process of reconfiguration - this newly emerging assemblage - that are a key focal point in this issue. Essential to these responses, we propose, is Deleuze and Guattari’s method of schizonalysis, which offers a way to not only understand the rules of this new game, but also, hopefully, some escape from the promise of a brave new world of continuous education and motivation. A brave new world of digitised courses, impersonal and corporate expertise, updatable performance metrics, Massive Open Online Courses (MOOCs), learning analytics, transformative teaching and learning, online high-stakes testing in the name of transforming and augmenting human capital overlays the corporeal practices of institutional surveillance, examination and categorical sorting. A brave new world, importantly, where people’s continuous education is instituted less, or not simply, through disciplinary practices, and increasingly through a constant and continuous sampling and profiling of not simply performance but their activity, measured against the profiled activity of a ‘like’ age group, person, or an institution. This continuous education, including the sampling that accompanies it, we are all informed through various information and marketing campaigns, is in our best interest. An interest that is driven and governed by an ever-increasing corporatisation and monetisation of ‘the knowledge sector’, as well as an interest that is sustained through an ever-increasing, as well as continuous, debt.

The road to Copenhagen: Intellectual property and climate change

In the lead-up to the discussions over IP and climate change in Copenhagen in 2009, the US House of Representatives passed a resolution that it should be the policy of US government officials in discussions over the long-term action under the United Nations Framework on Climate Change to ‘prevent any weakening of, and ensure robust compliance with and enforcement of, existing international legal requirements as of the date of the enactment of this Act for the protection of IP rights related to energy or environmental technology’.

Access to essential medicines: Public health and international law

Historically, there have been intense conflicts over the ownership and exploitation of pharmaceutical drugs and diagnostic tests dealing with infectious diseases. Throughout the 1980’s, there was much scientific, legal, and ethical debate about which scientific group should be credited with the discovery of the human immunodeficiency virus, and the invention of the blood test devised to detect antibodies to the virus. In May 1983, Luc Montagnier, Françoise Barré-Sinoussi, and other French scientists from the Pasteur Institute in Paris, published a paper in Science, detailing the discovery of a virus called lymphadenopathy (LAV). A scientific rival, Robert Gallo of the National Cancer Institute, identified the AIDS virus and published his findings in the May 1984 issue of Science. In May 1985, the United States Patent and Trademark Office awarded the American patent for the AIDS blood test to Gallo and the Department of Health and Human Services. In December 1985, the Institut Pasteur sued the Department of Health and Human Services, contending that the French were the first to identify the AIDS virus and to invent the antibody test, and that the American test was dependent upon the French research. In March 1987, an agreement was brokered by President Ronald Reagan and French Prime Minister Jacques Chirac, which resulted in the Department of Health and Human Services and the Institut Pasteur sharing the patent rights to the blood test for AIDS. In 1992, the Federal Office of Research Integrity found that Gallo had committed scientific misconduct, by falsely reporting facts in his 1984 scientific paper. A subsequent investigation by the National Institutes of Health, the United States Congress, and the US attorney-general cleared Gallo of any wrongdoing. In 1994, the United States government and French government renegotiated their agreement regarding the AIDS blood test patent, in order to make the distribution of royalties more equitable... The dispute between Luc Montagnier and Robert Gallo was not an isolated case of scientific rivalry and patent races. It foreshadowed further patent conflicts over research in respect of HIV/AIDS. Michael Kirby, former Justice of the High Court of Australia diagnosed a clash between two distinct schools of philosophy - ‘scientists of the old school... working by serendipity with free sharing of knowledge and research’, and ‘those of the new school who saw the hope of progress as lying in huge investments in scientific experimentation.’ Indeed, the patent race between Robert Gallo and Luc Montagnier has been a precursor to broader trade disputes over access to essential medicines in the 1990s and 2000s. The dispute between Robert Gallo and Luc Montagnier captures in microcosm a number of themes of this book: the fierce competition for intellectual property rights; the clash between sovereign states over access to medicines; the pressing need to defend human rights, particularly the right to health; and the need for new incentives for research and development to combat infectious diseases as both an international and domestic issue.

The race to patent the SARS virus: The TRIPS agreement and access to essential medicines

This article considers the race to sequence the Severe Acute Respiratory Syndrome virus ('the SARS virus') in light of the debate over patent law and access to essential medicines. Part II evaluates the claims of public research institutions in Canada, the United States, and Hong Kong, and commercial companies, to patent rights in respect of the SARS virus. It highlights the dilemma of ’defensive patenting' - the tension between securing private patent rights and facilitating public disclosure of information and research. Part III considers the race to patent the SARS virus in light of wider policy debates over gene patents. It examines the application of such patent criteria as novelty, inventive step, utility, and secret use. It contends that there is a need to reform the patent system to accommodate the global nature of scientific inquiry, the unique nature of genetics, and the pace of technological change. Part IV examines the role played by the World Trade Organization and the World Health Organization in dealing with patent law and access to essential medicines. The article contends that there is a need to ensure that the patent system is sufficiently flexible and adaptable to accommodate international research efforts on infectious diseases.

An ethical approach to sharing school successes in times of high-stakes accountability

High-stakes testing has become an important element of the Australian educational landscape. As one part of the neo-liberal paradigm where beliefs in the individual and the free market are paramount, it is of concern how school leaders can respond to this phenomenon in an ethical manner. Ethics and ethical leadership have increased in prominence both in the educational administration literature and in the media (Cranston, Ehrich, & Kimber, 2006). In this paper we consider ethical theories on which school principals can draw, not only in the leadership of their own schools but in their relationships with other schools. We provide an example of a school leader sharing a successful intervention with other schools, illustrating that school leaders can create spaces for promoting the public good within the context of high-stakes testing.

The role of institutional pressures and top management support in the intention to adopt cloud computing solutions

Purpose – While many studies have predominantly looked at the benefits and risks of cloud computing, little is known whether and to what extent institutional forces play a role in cloud computing adoption. The purpose of this paper is to explore the role of institutional factors in top management team’s (TMT’s) decision to adopt cloud computing services. Design/methodology/approach – A model is developed and tested with data from an Australian survey using the partial least squares modeling technique. Findings – The results suggest that mimetic and coercive pressures influence TMT’s beliefs in the benefits of cloud computing. The results also show that TMT’s beliefs drive TMT’s participation, which in turn affects the intention to increase the adoption of cloud computing solutions. Research limitations/implications – Future studies could incorporate the influences of local actors who might also press for innovation. Practical implications – Given the influence of institutional forces and the plethora of cloud-based solutions on the market, it is recommended that TMTs exercise a high degree of caution when deciding for the types of applications to be outsourced as organizational requirements in terms of performance and security will differ. Originality/value – The paper contributes to the growing empirical literature on cloud computing adoption and offers the institutional framework as an alternative lens with which to interpret cloud-based information technology outsourcing.

Incorporation of human recombinant tropoelastin into silk fibroin membranes with the view to repairing Bruch’s membrane

Bombyx mori silk fibroin membranes provide a potential delivery vehicle for both cells and extracellular matrix (ECM) components into diseased or injured tissues. We have previously demonstrated the feasibility of growing retinal pigment epithelial cells (RPE) on fibroin membranes with the view to repairing the retina of patients afflicted with age-related macular degeneration (AMD). The goal of the present study was to investigate the feasibility of incorporating the ECM component elastin, in the form of human recombinant tropoelastin, into these same membranes. Two basic strategies were explored: (1) membranes prepared from blended solutions of fibroin and tropoelastin; and (2) layered constructs prepared from sequentially cast solutions of fibroin, tropoelastin, and fibroin. Optimal conditions for RPE attachment were achieved using a tropoelastin-fibroin blend ratio of 10 to 90 parts by weight. Retention of tropoelastin within the blend and layered constructs was confirmed by immunolabelling and Fourier-transform infrared spectroscopy (FTIR). In the layered constructs, the bulk of tropoelastin was apparently absorbed into the initially cast fibroin layer. Blend membranes displayed higher elastic modulus, percentage elongation, and tensile strength (p < 0.01) when compared to the layered constructs. RPE cell response to fibroin membranes was not affected by the presence of tropoelastin. These findings support the potential use of fibroin membranes for the co-delivery of RPE cells and tropoelastin.

Breaches of lease between exercise of option to renew and expiry of lease in Queensland

The decision of Greppo v Jam-Cal Bundaberg Pty Ltd [2015] QCA 131 illustrates a defect in s 128 of the Property Law Act 1974(Qld) which gives a right to a lessee to apply for relief against forfeiture against loss of a right to exercise an option to renew. The defect arises because the legislation does not adequately deal with breaches that occur after the exercise of the option but before the expiry of the lease. Most commercial leases of all kinds have a standard provisions, as the lease in this case, as a conditions of the exercise of the option to renew that the lessee will have given notice of exercise within the time specified to the lessor and will have up to the date of expiry of the lease paid all rent and observed all lessee’s covenants. The difficulties occur because invariably an option must be exercised before the expiry of the lease when a lessee may not be in breach of the lease but may later prior to the expiry of the lease fall into breach. As this decision indicates,at least in Queensland, that the lessee who desires to challenge the lessor’s right to enforce those conditions can neither seek relief under s 128 against forfeiture of the right to exercise the option ,or indeed, under s 124 of the Property Law Act 1974 to preserve the agreement for lease brought about by the otherwise regular exercise of the option to renew. The decision cries out for legislative reform along the lines of s 133E of the Conveyancing Act 1919(NSW) which was amended in 2001 to meet this contingency.

The return to work experiences of middle-aged Australian workers diagnosed with colorectal cancer: a matched cohort study

Background Few studies have been undertaken to understand the employment impact in patients with colorectal cancer and none in middle-aged individuals with cancer. This study described transitions in, and key factors influencing, work participation during the 12 months following a diagnosis of colorectal cancer. Methods We enrolled 239 adults during 2010 and 2011who were employed at the time of their colorectal cancer diagnosis and were prospectively followed over 12 months. They were compared to an age- and gender-matched general population group of 717 adults from the Household, Income and Labour Dynamics in Australia (HILDA) Survey. Data were collected using telephone and postal surveys. Primary outcomes included work participation at 12 months, changes in hours worked and time to work re-entry. Multivariable logistic and Cox proportional hazards models were undertaken. Results A significantly higher proportion of participants with colorectal cancer (27%) had stopped working at 12 months than participants from the comparison group (8%) (p < 0.001). Participants with cancer who returned to work took a median of 91 days off work (25–75 percentiles: 14–183 days). For participants with cancer, predictors of not working at 12 months included: being older, lower BMI and lower physical well-being. Factors related to delayed work re-entry included not being university-educated, working for an employer with more than 20 employees in a non-professional or managerial role, longer hospital stay, poorer perceived financial status and having or had chemotherapy. Conclusions In middle-adulthood, those working and diagnosed with colorectal cancer can expect to take around three months off work. Individuals treated with chemotherapy, without a university degree and from large employers could be targeted for specific assistance for a more timely work entry.

An investigation into drink driving among aboriginal and Torres strait islander peoples in regional and remote Queensland and the development of the 'Hero to Healing' program

This program of research investigated the factors facilitating drink driving in Indigenous communities in Far North Queensland. Drink driving-related road crashes are a significant health burden for Indigenous people, as they die in road crashes at three times the rate of other Australians and are 30% more likely to be seriously injured. This research provided information to develop and pilot a culturally-specific program, 'Hero to Healing'. The main motivation to drink drive was related to 'kinship pressure; where drivers were pressured by family members to drive after drinking. The underlying responsibility for transporting family members was related to cultural values and involved responding to family needs as a priority. Exposure to older family members drink driving was considered to play a role in normalising the behaviour, leading to imitation into adulthood. The research highlighted the need to treat drink driving as a community issue, rather than an individual phenomenon.

Free Energy Gap Dependence of the Electron-Transfer Rate from the Inverted to the Normal Region

numerical study of the free energy gap (FEG) dependence of the electron-transfer rate in polar solvents is presented. This study is based on the generalized multidimensional hybrid model, which not only includes the solvent polarization and the molecular vibration modes, but also the biphasic polar response of the solvent. The free energy gap dependence is found to be sensitive to several factors, including the solvent relaxation rate, the electronic coupling between the surfaces, the frequency of the high-frequency quantum vibrational mode, and the magnitude of the solvent reorganization energy. It is shown that in some cases solvent relaxation can play an important role even in the Marcus normal regime. The minimal hybrid model involves a large number of parameters, giving rise to a diverse non-Marcus FEG behavior which is often determined collectively by these parameters. The model gives the linear free energy gap dependence of the logarithmic rate over a substantial range of FEG, spanning from the normal to the inverted regime. However, even for favorable values of the relevant parameters, a linear free energy gap dependence of the rate could be obtained only over a range of 5000-6000 cm(-1) (compared to the experimentally observed range of 10000 cm(-1) reported by Benniston et al.). The present work suggests several extensions/generalizations of the hybrid model which might be necessary to fully understand the observed free energy gap dependence.

A spatial assessment of the risk to a mobile marine mammal from bycatch

Several species of marine mammals are at risk of extinction from being captured as bycatch in commercial fisheries. Various approaches have been developed and implemented to address this bycatch problem, including devices and gear changes, time and area closures and fisheries moratoria. Most of these solutions are difficult to implement effectively, especially for artisanal fisheries in developing countries and remote regions. Re-zoning of the Great Barrier Reef World Heritage Area (GBRWHA) in 2004 closed 33% of the region to extractive activities, including commercial fishing. However, the impact of re-zoning and the associated industry restructuring on a threatened marine mammal, the dugong (Dugong dugon), is difficult to quantify. Accurate information on dugong bycatch in commercial nets is unavailable because of the large geographic extent of the GBRWHA, the remoteness of the region adjacent to the Cape York Peninsula where most dugongs occur and the artisanal nature of the fishery. In the face of this uncertainty, a spatial risk-assessment approach was used to evaluate the re-zoning and associated industry restructuring for their ability to reduce the risk of dugong bycatch from commercial fisheries netting. The new zoning arrangements appreciably reduced the risk of dugong bycatch by reducing the total area where commercial netting is permitted. Netting is currently not permitted in 67% of dugong habitats of high conservation value, a 56% improvement over the former arrangements. Re-zoning and industry restructuring also contributed to a 22% decline in the spatial extent of conducted netting. Spatial risk assessment approaches that evaluate the risk of mobile marine mammals from bycatch are applicable to other situations where there is limited information on the location and intensity of bycatch, including remote regions and developing countries where resources are limited.

Use of part records in Merino breeding programs - The inheritance of wool growth and fibre traits during different times of the year to determine their value in Merino breeding programs

Fibre diameter can vary dramatically along a wool staple, especially in the Mediterranean environment of southern Australia with its dry summers and abundance of green feed in spring. Other research results have shown a very low phenotypic correlation between fibre diameter grown between seasons. Many breeders use short staples to measure fibre diameter for breeding purposes and also to promote animals for sale. The effectiveness of this practice is determined by the relative response to selection by measuring fibre traits on a full 12 months wool staple as compared to measuring them only on part of a staple. If a high genetic correlation exists between the part record and the full record, then using part records may be acceptable to identify genetically superior animals. No information is available on the effectiveness of part records. This paper investigated whether wool growth and fibre diameter traits of Merino wool grown at different times of the year in a Mediterranean environment, are genetically the same trait, respectively. The work was carried out on about 7 dyebanded wool sections/animal.year, on ewes from weaning to hogget age, in the Katanning Merino resource flocks over 6 years. Relative clean wool growth of the different sections had very low heritability estimates of less than 0.10, and they were phenotypically and genetically poorly correlated with 6 or 12 months wool growth. This indicates that part record measurement of clean wool growth of these sections will be ineffective as indirect selection criteria to improve wool growth genetically. Staple length growth as measured by the length between dyebands, would be more effective with heritability estimates of between 0.20 and 0.30. However, these measurements were shown to have a low genetic correlation with wool grown for 12 months which implies that these staple length measurements would only be half as efficient as the wool weight for 6 or 12 months to improve total clean wool weight. Heritability estimates of fibre diameter, coefficient of variation of fibre diameter and fibre curvature were relatively high and were genetically and phenotypically highly correlated across sections. High positive phenotypic and genetic correlations were also found between fibre diameter, coefficient of variation of fibre diameter and fibre curvature of the different sections and similar measurements for wool grown over 6 or 12 months. Coefficient of variation of fibre diameter of the sections also had a moderate negative phenotypic and genetic correlation with staple strength of wool staples grown over 6 months indicating that coefficient of variation of fibre diameter of any section would be as good an indirect selection criterion to improve stable strength as coefficient of variation of fibre diameter for wool grown over 6 or 12 months. The results indicate that fibre diameter, coefficient of variation of fibre diameter and fibre curvature of wool grown over short periods of time have virtually the same heritability as that of wool grown over 12 months, and that the genetic correlation between fibre diameter, coefficient of variation of fibre diameter and fibre curvature on part and on full records is very high (rg > 0.85). This indicates that fibre diameter, coefficient of variation of fibre diameter and fibre curvature on part records can be used as selection criteria to improve these traits. However, part records of greasy and clean wool growth would be much less efficient than fleece weight for wool grown over 6 or 12 months because of the low heritability of part records and the low genetic correlation between these traits on part records and on wool grown for 12 months.

Promising Practices: Ensuring Choice Under the Ticket to Work Program - The Indiana PABSS Approach

The Ticket to Work program offered disabled and blind social security beneficiaries the promise of greater choice when selecting a vocational rehabilitation provider. With the issuance of Transmittal #17, much of the opportunity to choose a provider was removed. The Protection and Advocacy agency in Indiana took steps to protect the rights of disabled and blind beneficiaries to choose providers in the face of this significant policy change. Learn what was done to protect the rights and ability of beneficiaries to seek and choose vocational rehabilitation providers.