One important reason that the rates of adverse outcomes associated with intellectual property are not higher (given the large number of patents in this area) is that, notwithstanding the 2002 Madey v. Duke decision, academic researchers remain largely unaware of patents relevant to their research and typically proceed without considering them; only 8% of our random sample respondents reported awareness of using information or knowledge covered by a third party patent sometime in the prior 2 years. We do find, however, that those who are more engaged in commercial activity are more aware of third party patents, although, even for this group, only about 20% report knowing of relevant third party patents. We have no way of knowing what the true base rate is for the percentage of respondents who use others’ intellectual property. Given, however, the large number of biotech patents issued since 1990, we suspect that the number of academic researchers who are using others’ patented technology exceeds 8% of the total.
Although such apparent disregard for IP may for the moment minimize the social costs that might otherwise emerge due to restricted access (Walsh et al., 2003), it remains an open question whether such disregard is sustainable. Indeed, an important question is why academic researchers seemingly disregard the possibility that the knowledge inputs they use may be patent protected. Is it just a matter of habit born of a time, not long ago, when upstream biomedical discoveries were not patented? Or, is it a matter of community norms and organizational and career incentives that place the highest value on getting the work of science done, without paying much attention to anything that might slow the work down? Or is it that, given the low likelihood thus far of academics’ being sued for patent infringement, the researchers have little incentive to change their behavior. There is the additional consideration that academic biomedical researchers are also not generally trained in how to conduct effective patent searches, so that the time spent searching the patent databases would unlikely allow the comprehensive identification of relevant patents, suggesting not searching may be the more rational strategy. No matter the explanation, however, our finding underscores Ellickson (1991) observation that the “law on the books” need not be the same as “law in action,” particularly if the law on the books contravenes a community’s norms and interests.