The Tools and Levers of Access to Patented Health Related Genetic Invention in Canada
(2009) 30 Washington University Journal of Law and Policy 43
98 Pages Posted: 6 Aug 2013
Date Written: June 1, 2009
This Article argues that there is a prevailing problem of access to genetic invention in Canada caused by disputes over intellectual property (“IP”) rights arising from conflicting normative orders. A variety of tools have been suggested and developed to remedy blockages to genetic invention caused by IP rights, including proposals for legislative reform, open source licensing initiatives, international standard setting, and information aggregation projects. I argue that determining which tool will work in the context of the disputes that have arisen requires comprehending how the tool will interact with the characteristics of the local legal order. I draw on legal pluralist insights that regard state law as merely one form of legal regulation; thus the local legal order is comprised of formal and informal rules developed by communities of practice. I also proceed from the premise that a one-size-fits-all approach to enabling access through IP rights is likely to be as unsuccessful as one-size-fits-all approaches have been to regulating IP rights more generally.
Keywords: legal pluralism, intellectual property, access, genetic invention
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