 Thank you for coming for the ultimate presentation in this year's health law seminar series. It gives me great pleasure to introduce today's speaker, Professor Tina Piper. Professor Piper is an associate professor at McGill University's Faculty of Law. She holds master's and doctoral degrees from the University of Oxford, where she was a Rhodes Scholar, an LLB from here at Delhouse, where she won the gold medal in her class, as well as an engineering undergraduate degree from U of T. While at Delhouse, she also worked at the Legal Aid Clinic, was involved in the Delhouse Association of Women in the Law, edited the Delhouse Journal of Legal Studies and various other pursuits. After graduating from Delhouse, she later clerked for Chief Justice McLaughlin of the Supreme Court of Canada. Since arriving at McGill in 2009, Tina has, amongst other things, served as the Research Director at McGill's Center for Intellectual Property Policy and was a resident fellow quite recently at McGill's Institute for Public Life for the Arts and Ideas. A collaboration of seven faculties and McGill's libraries that seeks to, quote, foster dialogue amongst disciplines within the university and the organizations outside of it. And it's in that institute's aim, as well as the title of Tina's talk today, happening outside the law in Canadian medical history, where I think we can find a hint of what's so compelling and maybe even subversive about Tina's work. It's genuinely interdiscipline. Her interest in what's outside the law, her prioritization of the perspectives of others, those on the outside. It's for this reason that I think we're lucky to be inside on this day talking with Tina. In her 2014 book published by Oxford University Press, Putting Intellectual Property in its Place, Tina and her two co-authors put their agenda this way. We contend that in seeking a full understanding of what intellectual property is, statutes and cases are the last thing we should look at. Not the first. What blasts with me in the lecture hall of the law school, right? Imagine that commitment to talking to people, to actors, to communities first, as opposed to musings of courts and legislatures. That commitment, giving primacy to people, not the law and the books, carries through all of Tina's work, and it has the potential to turn a lawyer's typical understanding of the world on its head. Again, quoting from that 2014 book, the case studies that she and her collaborators have developed suggest that the effects attributed to intellectual property, statute and case law, are often in fact results of cultural, professional, economic, and ideological circumstances in which intellectual property law is invoked or imagined, not the other way around. Tina's scholarship is in short a powerful call to be more humanist in our understanding of the law. It's many sources and influences. And an important call, I think, to students, lawyers, and legal scholars alike. I'm very much looking forward to her presentation today. Please join me in welcoming Professor Tina Piper. Thank you so much, Matt. For that warm introduction, I've known Matt for several years. We've had the good fortune to collaborate on a couple of projects, and I've actually drawn a lot of inspiration from his own sort of humanist understanding of the law, and that's helped to inform the way I think about some of these questions. Particularly, what I'm going to talk to you about today, first I wanted to thank the Health Law Institute for inviting me. I always love an opportunity to come back to Halifax. My family lives here, and I get a chance to wear my Nova Scotia pin on my lapel. Or I could wear that in Montreal as well, but people recognize it. So what I decided to do for the talk today was to do a bit of a synthesis of several research projects that I've been working on over probably the course of a decade, starting with my doctorate and ending with some current research that I've been doing into the archives, the archival sources of the National Research Council in Ottawa. And the underlying theme or thread of this story is how do we reconcile different normative orders? So how in intellectual property law in particular, how do we take individuals who may have different commitments? So they may have commitments, professional commitments, personal commitments, ideological commitments, however you choose to characterize these. How do you take us in all of our messiness and understand us as actors, as actors who in a sense end up creating law, creating rules as we go through the world. And so my approach is what I'd say is largely biographical. And I've come to this in the hard way. I started looking at institutions and I got kind of overwhelmed by all the policy papers and the institutions and all the different ways that institutions spoke and often speak in a coherent voice. So I had trouble understanding what the institution was trying to say and what the institution meant. And then institutions often contradict themselves over time as do people. So I'm not trying to say that people are easy to understand. And so then I moved sort of from the institutional level to looking at people within institutions and trying to understand how major actors within institutions, major individuals, pivotal moments influenced the shape of the rules and norms that influenced certain features. So that's my approach. Professor Rod McDonald, who recently passed away at McGill, is sort of an exponent of this kind of approach of the sort of the individual as a self-constituting normative order, as the individual creating laws that go through the world and encountering different legal regimes. And I think in some way my work sort of draws from that influence. And what I've been interested in, in general, has been the issue of medical patenting. In a very contemporary way, I've been interested in how complicated this issue is, how fraught it is. So any time that we talk about sequencing the human genome or we talk about creating new vaccines for infectious diseases or if we're talking about, in a sense, creating some sort of useful medical innovation, the conversation gets really complicated really quickly. And there are a number of contemporary ways that these disputes are resolved. So there are all sorts of interesting strategies out there for trying to create collaboration or trying to break down some of the property-like barriers when trying to engage in innovation in the medical field. So these include things like, for example, patent pools or creating commons, so donating research or creating property-less places for collaboration to occur. And so I spent a bit of time looking at that and I was sort of interested in how these issues were so complicated. Complicated because medicine invokes, I think, it's sort of grand zero for patent conflicts because it really invokes this concern about access and the concern that, you know, if somebody gets a hold of this particular innovation, we might not be able to treat people or cure people or save lives and it's really that sort of saving lives, public interest kind of link that I think really drives a lot of the controversy about patenting in the medical field. And I speak very generally and I've tried to make my work more specific by looking at a few examples, so I'll bring it down. I haven't even started my slides yet. This is by way of very long situating it but I wanted to give you the sense, the sort of like, why does it matter kind of discussion right off the bat so that you can understand why it matters to me that I'm doing this research and where I came from in thinking about it. I came from a very rooted place in terms of thinking about how we use intellectual property rights creatively through non-exclusive licensing or creating patent pools or collaboration agreements. I was thinking about that and where that came from and how do we make that better and how do we bring people to the table to engage in this kind of collaboration. And so what I've done here is I've extracted what I call some of the arguments that surround medical patenting and so I've got the four category and the against medical patenting and so, you know, just to sort of cherry pick some of them, you know, there's a concern that research becomes profit but not curiosity oriented but if you patent it protects inventions from getting into the wrong hands. It can promote a culture, patents can promote this culture of secrecy while you're trying to keep things quiet to preserve the novelty but in fact some people argue that when you publish a patent it's like publishing, it's a real publication. It doesn't just sit in the patent office so the specification is a form of publication. There's some arguments that patents or the sort of undue venal kind of quest for patents chills research but others claim that it actually keeps researchers and universities and other public research institutions by creating rewards that might allow them to benefit more than just their salary. So these are some of the arguments. What's interesting for me about these arguments is that these are drawn from documents from the early 1900s. They're not contemporary arguments but I think most of these arguments I have heard, you know, if I picked up, if I Googled something about sort of access to medicines you could probably find many of these same arguments around in particular university patenting of important or shall we call them life-saving inventions and so the arguments haven't really changed. There seems to be something quite fundamental about the nature of the patent system and the nature of university research that persists. What I've been interested in is thinking about where in... So what kind of allowances have we created for medical innovation within the patent system and why have those arisen and once those have arisen how have they been instantiated and where I became most interested in was thinking about the medical methods exception from patentability. So this is an exception that is part of the, for example, European Patent Convention. It's part of Canadian common law so it's an exception that, and I've got the formulation here, it excludes from patentability methods for treatment of the human or animal body by surgery or therapy and diagnostic methods that are practiced on the human or animal body shall not be regarded as inventions which are susceptible to industrial application and it doesn't apply to products. So what's interesting about this provision is that it really seems to take the issue of medical innovations and situates it quite centrally in its terms. Unlike many other provisions of the Patent Act which don't really address those types of innovations but when you actually look at the provision it doesn't do much of anything so it excludes from its terms most of what you might be interested in patenting. So on the one hand it seems to sort of create a carve out for medical innovation but on the other hand it takes away by its own limitations and in Canada we don't even have the diagnostic methods exception really so it's even more narrow than this and part of what I'm highlighting to you as well here is to the extent to which many of these norms are Anglo-American so there are similar norms and principles that float through the United States, Canada and England that share principles of common law that have influenced the shape of patent law. What's interesting to me about this exclusion and about what we currently have within the law for carving out a special space for medical patenting if we give it a shorthand is that it only covers things that are practiced on the human or animal body so it wouldn't apply there's a classic example as an allergy test applied to your skin wouldn't be patentable but an allergy test that took a sample away from your skin would be patentable so some of the distinctions seem a little unclear it doesn't seem to be a principle distinction between some of these why things are patentable or not Another interesting part of this provision is that the invention shall not be regarded the particular subject matter won't be regarded as an invention which is susceptible of industrial application now that's really interesting to me because the and you'll see as I take you through the story the core problem is that there's something about medical work that isn't industrial that wants to situate itself outside of the market and industrial application and that's what this provision seeks to do it doesn't say they're not patentable because it's unethical or because they're not conveniently patentable or that sort of thing it's specifically because they lack industrial application and another interesting thing about this provision is that it doesn't apply to products so it doesn't apply to medicines medicines have their own kind of whole their own realm within the sort of the patent regime and that's developed over time but I was very confused when I first came to this field I thought well shouldn't this obviously cover medicines pharmaceuticals? I'm using the 19th century term medicines shouldn't a provision that seeks to exclude from patentability something is not industrially applicable and that has as its purpose as I will show you the justification at the European level for this exception and these are mirrored in Canada I mean I state this I use the European example because it's so clear in Canada it's more of a hodgepodge of common law results but the judges really have been speaking to each other over time to craft a similar norm it's even more interesting in the United States but it says patents will not hamper doctors' valuable life-saving work and that's where the medical exception seeks to intervene it doesn't want doctors in the course of perhaps a surgery to feel like they can't make a certain kind of incision or do a particular technique because of a patent stopping them and so that's the ostensible justification for the provision and it's very narrow scope and medicines and pharmaceuticals have been taken up by whole other parts of the patent act and have their own sort of complicated regime and they're very clearly patentable and meet the sort of requirements of industrial application and all the inventiveness so forth so I trace the roots of this provision and it's exception to try and understand a bit about the history of medical patenting and the way that these arguments have been resolved legislatively but also as Matt said outside the law so trying to understand where the solutions have come from because what troubled me about this exception was its bizarre scope and also its limited applicability it seemed to me vestigial it seemed to me something that was left in the law that at one time did something and now we're not really sure what it does but it's still there because it's harder it's hard to get things off the books once they're written down basically it's hard once there's a consensus around certain provisions to get rid of them it's just the way the world works I guess so I was curious what understanding that provision might have to say about medical patenting and I trace the roots of that provision and this is a very long story so I'm really giving you the Kohl's Notes summary here so apologies to anyone who's a student of medical history or science studies who is involved in a very small five-year period that I'm just giving over vastly but essentially what I found and this was the work I did for my doctorate was that in the United Kingdom by the mid-1800s there was a two-tier medical practice and that medicine was unsafe and of limited effectiveness and so there was a concern that there were sort of high class physicians and a vast mass of low paid largely not terribly consistently educated practitioners who were basically who it was unclear in many cases whether they were doing whether they were in fact improving people's health they were intervening in health moments but it was unclear whether they were effective and they used a great number in variety of patent medicines and the interesting thing about patent medicines is the use of the word patent medicines so these were often patented but they didn't need to be patented but the patent was seen to grant a measure of validity or served as a type of accreditation before proper regulatory regimes were in place to test the sort of efficacy of medicines and by the late 1700s patent medicines were the single by usually what they called Nostromakers but the people who made the patent medicines were the single largest occupational use of the patent system and so when you go back in the documents in the archives actually in the UK where I was working on this it's really fascinating to see the extent to which the question of patent medicines and the income because this is always the fraught issue is that patent regimes are interested in increasing patent applications so the patent office is called the patent office not the no patent office they want people to patent and so there's really incentive with if you have a single largest document if you have a group of people who so frequently use the patent system it's in your interest to encourage them not to discourage them by making the system more amenable to this kind of activity so it wasn't that the lawyers were impeding anyone from getting patents over their medicines it was the newly conscious and starting to professionalize medical core who wanted to regularize their practice and improve their reputation in aid of professionalizing and improving the condition of physicians and I don't want to be too determinative about the links between medical professionalization and the rules that resulted what was interesting was that there was this phenomenon of professionalization and that there was this phenomenon of professionalization and that as part of that project of professionalization physicians sought to gain more control over the work that they did and gaining control over the work they did meant controlling their practitioners sort of like what the law society does with lawyers and sort of raining in some of the more marginal elements bringing them in, leaving them out creating standards that sort of thing and so what I found was that the medical exception was an artifact of that tension of that the medical method's exception arose as sort of artifact of that tension between professionalization and the desire to eliminate or control patent medicines and for physicians to gain control of their work so they could in fact perhaps make people feel better so the journals were a primary source for me of debates and what I found was that you actually have to read the journals two ways like the journals themselves had a substantial interest in professionalization and they also played this role of sort of broadcasting what I think were aspirational norms perhaps not actual norms so it's interesting just as from I think if you're doing primary source work in law and you're trying to understand what are the sources outside the law where you can find norms like if you're looking for rules outside the law this is always the question in the work that I do like if you're talking to people and the people are dead and long time ago how do you understand you don't have that primary source you have to go to the documents and then how do you read the documents in a way that's accurate to the intent of the documents and so that's what I spent some time trying to understand is when the Lancet says something is the Lancet reflecting the rule of the profession or is the Lancet reflecting what it would like doctors to be doing is it trying to set up a sort of aspirational sort of an aspirational ideal and I think what I've concluded is that it is a bit aspirational it was quite aspirational and perhaps the practice of physicians was much murkier and messier than what was presented in the journals and the journals liked my impression from the journals was that there was sort of the reasonable doctor the sort of reasonable well-behaved doctor that we would all hope to be and they would sort of speak to that reasonable well-behaved doctor that we should all try to be and try and reflect that so here was a sort of classic quotation from a leading article from 1851 the remarkable point is that the judges and Mr. Bethel and the solicitor general argued the case precisely as though Morrison's pills had been a discovery such as the steam engine or spinning Jenny perfectly at liberty to claim the law respecting patented articles of manufacture instead of an ostrom which may have sent thousands to premature graves so this really highlighted the concerns around patent medicines the extent to which they were regarded as dangerous that they actually killed people but also the extent to which many felt that they shouldn't be patented they shouldn't be given they shouldn't be treated as inventions legitimate inventions instead of quack medicine or quack products that should be ignored or discarded so there was this tension between the legal profession and the medical profession in doing this so professionalization and this again is a bird's eye view of what I observed and how I put the pieces together was that professionalization within medicine happened by distancing the sort of nuts and bolts of medical practice from the market and creating a sort of creating the public and the public interest that would justify the practice of medicine in that public interest by excluding regulation by other professions and in this case law was a key profession that medicine sought to sort of extricate itself from beneath gaining state support for self-regulation standardizing and controlling the quality of the medical commodity in this case the patent medicines were the primary medical commodity the goal was to was to to get away from those unstandardized, chaotic nostrums and creating a sense of collegiality or spriticore and lawyers again played an important role in the journals observed and again I quote from the Lancet that there's nothing more lamentable than nothing more reprehensible than unseemly quarrels among medical practitioners within the courts was essentially they were commenting on cases in which physicians medical practitioners were arguing amongst themselves about various patent medicines in which they had a financial stake and they were allowing these disputes to be resolved by the courts instead of sort of closing ranks within the medical profession and allowing the profession to in a sense self-regulate so in so this sort of outside the law component of this was that in so given that the law the law was not exactly aligned with the interest of the folks who wanted to create a more professional practice of medicine and so the British Medical Association which was sort of the primary I guess trade union of physicians at the time in the UK came up with this resolution in 1903 that was passed and I don't have many details about the sort of circumstances in which it was passed the sort of number of votes I can see I went to the British Medical Association's archives and looked through their documents and found the original sort of statements but I didn't find I mean I think they were it was passed with whatever was required a majority or a unanimity but the essentially the resolution provided that it is ethically undesirable for a medical man who has invented a device intended for medical purposes to take out a patent for the purpose of deriving from such patent the financial results of a monopoly so this was trying to rein in the sort of patent medicine the link between medical practice and the patent medicines it was interesting that it said it's ethically undesirable right so it wasn't legally it wasn't illegal it was ethically undesirable so it's a soft norm I guess we'd call it but again I think it was quite aspirational because you see subsequent to the passage of this resolution and its publication the British Medical Journal you see in the pages of the British Medical Journal a real effort to kind of elaborate well what does this norm mean in these particular circumstances so this was really interesting to me as another sort of outside the law moment really like this moment where the journal through sort of letters to the editor was trying to explain to the members of the profession what this resolution meant and some worried people but not too worried because I guess it was an ethically undesirable practice but not a legal practice and so I don't know if these letters were from real people or if they were the editors of the British Medical Journal standing in as real people if you see what I mean again there's a lot of ambiguity in some of this and I don't want to read it too close to the letter if you see what I mean like I try to read it like well you know they give the person an acronym or a pseudonym sorry X-rays asks whether it is legal for a medical man to register an article he has invented and we presume to derive profit from its sale in reply we may express the opinion that no medical practitioner should be interested in the sale of anything which may be his professional duty to recommend to his patients so there's this real concern that the conflicts of interest presented by those who and it was really the concern was about the patent medicines but extended to the things like devices devices were a big question how to what extent were devices sort of instruments to what extent were devices and instruments encompassed by this and opinion went both ways so what I've argued or concluded or yeah what I've found had emerged was that by the early 1900s the medical profession had developed an informal normative order a sort of parallel patent system that evaluated inventions as to their merit internally so physicians would through practice or through conferences and speeches and publication determine which inventions were meritorious and the reward for such was perhaps a professional income but it was also perhaps regard from your peers the disclosure and dissemination functions happened through the sort of the organs of this sort of newly organized and formal profession and enforcement well you know I never I looked I went through the British Medical Association's disciplinary hearings up until the 1960s looking for instances where this resolution might have been enforced in any way shape or form and I found nothing so it never made it into a sort of formal disciplinary process I think this was all within the realm of sort of shaming and shunning and gossip really which are very effective in a closed community and the interesting part of the story that I will not tell you about today at all but just sort of FYI is that you know the common law established a formal in the UK established a formal common law prescription against medical methods of patenting medical methods in 1914 the the graph should really go a bit earlier to 1903 when the sort of informal norm was first like expressed or articulated and then the informal norm basically was taken off the books by formal resolution in 1951 so we do have a sort of beginning and an end it doesn't exist as a formal ethical prohibition within the medical profession but that was because around that time starting negotiating the European well European patent convention was effectively the moment when a variety of nations brought into brought into being a formal medical methods exception into their patent law because a lot of countries actually had this norm and this this prohibition or a norm or it varied and different and in particular the Catholic countries so country like Italy had a big prohibition against patenting medical methods or getting patents involved in medicine and this was goes to the core of the European patent negotiations there was this concern that it was very interesting that that every country basically I think except Germany had some sort of prohibition on medical patenting but that countries were countries really different on the intensity of that prohibition and what and how it should be formulated into what it should apply should it apply to all medicines should it just apply to medical methods and so a lot of the debate happened around that and essentially as the as the formal norm through the common law gained strength both through expression in case law and through statute the informal norm dropped off in in sort of its expression it's unclear I'd have to do more research to determine the extent to which it was forced informally and I sort of chart its decline by saying it was very strong in the 1960s and then case law really hollowed out the the legislative norm against patentability and again all of this applies in Canada pretty much I mean with some nuance but it's it was a nor and and within the United States I use the UK as sort of the ground zero example because it was so stark and it really did originate there and what I found from studying through the archival sources was that the medical practitioners researchers in the three countries Canada the U.S. and the UK really had a lot of collaborations and discussions sort of anytime something was a foot that was possibly a bit controversial Canada would send an emissary to the medical research council in the UK to find out what they thought about it and then sort of report back to see if it would offend anyone and I found in general in many instances that the Canadian Medical Association so replicated or reflected some of the state the the positions of the British Medical Association so there's a very close in a sense I mean I don't know I don't study these medical associations so I'm not certain how much you could say that they sort of modeled themselves off the UK but it really appears in many instances that in some of these big policy issues where the UK had experience there was a there was a degree of modeling so what I was interested in I was always interested in Canada as a sort of middle power sitting between the sort of the more formal careful cautious UK culture culture that illegal culture in fact it was quite often quite elite elitist maybe that's the word I'm looking for that often sought to preserve power or social division in a way and the US culture which really put a lot of the work into the market and allowed things to just sort themselves out Canada sort of sat somewhere in the middle it was too close to the US to ignore it its patent system is basically in many cases a way of bringing US innovations into the country and providing that stamp of exclusivity to allow them to be marketed in Canada so much too close to be ignored the UK seem to have a much more sort of inspirational influence on Canadian practice so it was interesting Canada's middle power because what I had found and this is what the rest of the talk is about is a number of sort of interesting Canadian examples where we charted a middle path through this mess where the demands the controversies the challenges of medical patenting were avoided by sort of by deft maneuvers that didn't that sat and this is where the outside the law bit becomes a bit murky it wasn't it wasn't that Canadian researchers didn't patent but it was often that they used different mechanisms to affect the same ends and didn't use the obvious legal mechanism as you'd expect it to be used and relied on more informal networks to kind of affect the ends that they sought to achieve so it was a it's a very interesting model and it it speaks to what I think is an interesting way in which Canadian well it's this is the contemporary discussion that's going on is the extent to which Canadian technology transfer offices need to or could be more ambitious in the ways that they in the ways that they encourage commercialization of inventions and what I found in a lot of my research was that Canadian technology the nascent Canadian technology transfer organizations were actually extremely adventurous and they were adventurous sort of out of necessity and out of inspiration it's interesting to me that that we that the Canada actually the Canadian researchers and it's hard to speak of Canada but because what I'm really talking about are people and there were a few people who did some interesting things and so one of them was James Bertram Collup and I wrote a paper that I circulated some of the people who are I guess had to read something in advance of the seminar the speech of this talk but James Bertram Collup was in again this is in brief he was a researcher who had been involved in the sort of the discovery of insulin or really it's sort of making it usable but hadn't been part of the Nobel Prize winning part of it but was part of the patent and he he's a suit he's a really interesting character if you're looking at technology transfer in the medical profession in in medical the medical research area in in early 20th century Canada in part because he moved quite a bit he moved between the University of Toronto University of Alberta McGill and I believe to McMaster so he had many different lives and many different institutions and he brought this experience with him to various different institutions and he was constantly discovering new and interesting things and he was constant and and I guess you have to kind of picture the way the world was back then and again I'm going to sort of like give you the bird's eye view I mean you read a lot of these accounts of what a university was like and it was like dirt floors and there might be farm animals inside some of the buildings and research facilities were were crude and approximate and so it's not the sort of modern research institution that we imagine gleaming white donor names and such I mean they probably had donor names back then I don't know but it was it was less formal a bit more chaotic and people had to consider the latitude if they had ideas or approaches to kind of adopt what worked for them and they kind of had to find their own research resources of it themselves they were also allowed to inhabit multiple identities which I find interesting and Matt really does that with his sort of dual medicine law identity but in you know we're sort of going through this moment I think where that's becoming more normal or more common is to have multiple identities it was very common back then for someone to be a physician to be a researcher to be a university professor to be a businessman to speculate on the side and as well to perhaps serve in the military because that's where I'm going to end all this because I think that the military actually has a lot to say about the way that technology transfer of medical innovation developed in Canada and so looking at what James Bertram Collup did he invented some interesting things in this environment where there weren't a lot of rules and he had these multiple commitments to different identities right he had a commitment as a physician to to what I showed you before like some of the keeping away from lawyers not profiting not getting into conflict of interest situations he had a commitment as a university researcher and I don't deal with this but it's a significant normative commitment to the shorthand kudos again like I know people dispute whether kudos really is a valid way of characterizing this but some sort of version of communalism universalism organized skepticism disinterestedness so the typical university researcher working in a public interest working sharing results working in the spirit of science these sorts of things so he had that kind of commitment and he served in the first world war so there were commitments he also he was a man who liked to live comfortably and so he wasn't averse to making money and I don't think my sense from the documentation as well as that the university researchers didn't make a lot of money back then and so it was more okay for people to kind of supplement on the side and kind of make pulled together what they could from various different sources so there were various models floating around as science became more organized so this is another moment that's happening and it's a big moment right the birth of laboratory organized science a lot of it flowing from Germany the birth of corporations with r&d departments the birth of and again this is all happening at different times in different ways and so this is kind of in the air right there's a sense that you can come up with things that are actually really important anti-malarial and vaccines and you can come up with medical innovations that actually more help people than harm them and that was kind of a big moment too right and you could do that through structured investigation and these sorts of things so there were various models and ways that people were thinking about doing this in a way that didn't harm some of their normative commitments and I think it was a world that was also a bit I mean look the passive foreign country and that sort of thing so it was a world that was different there were a few people there were a few people doing this kind of research people tended to know each other quite well these were communities of familiar very familiar even though they might not they couldn't travel as much they were distant but they there were all these sort of characteristics of research at the time that kind of I don't know how it played into this model but through the documents I get this real sense that people wanted to do good they didn't want to they didn't want to I don't know jettison or harm their professional contacts their networks it's a very personal set of networks through doing the wrong thing or appearing too concerned with money or appearing too preoccupied with commercialization and so there were all these models that came up to kind of try to negotiate that and it's interesting because many of these models are actually almost identical to ones that are that make the rounds every time there's a debate about how to collaborate to develop a new vaccine or to provide access to essential medicines so when I just go through there and there were examples in institutions that various STS scholars have dealt with in a great deal of depth so this is just sort of a list there were independent nonprofit foundations that could manage patents then there was basically the same thing an independent nonprofit foundation that would manage it for only one university so there was envisioned like you might have a central organization to do this or you could have one associated with a particular institution and this is sort of starting to look like a technology transfer organization there was this idea of having a special patent managing committee within an institution this was the insulin model then there was this idea that the scientist could dedicate their rights to the public the so called patent dedication and it's interesting because patent dedication gets a lot of airtime I feel like patent dedication is something that got a lot of airtime in the early 1900s and it gets almost no airtime today and I think it's because people have realized that if you come up with something important and you just dedicate it to the public it's going to get snapped up pretty quickly by someone who's going to do something with it that you don't want them to do with it because you probably there probably is something you don't want them to do with it if you kind of made this dedication like you're probably not dedicating it totally selflessly you're probably dedicating it because you want some sort of good to come of it and that doesn't usually doesn't often happen when you just kind of leave it out in the air so it's interesting and then the no patent solution which was just similar to the patent dedication option and has a similar sort of reception people anyway so these are the various models in the air at the time and J.B. Collib came up with and so in discussions with McGill and trying to he he had invented he had formulated an estrogen treatment that is now pre-marin which is currently prescribed to women generally post-menopausal with great frequency at the time it was called aminin he had also formulated this parathyroid hormone his solution and again he was sitting sort of at the in the center of all these sort of conflicting I don't know conflicting or perhaps totally reconcilable commitments specifically the documents that I went through you know we found that McGill when they were trying to decide what to do with aminin they sent an emissary the dean to the Medical Research Council the British Medical Research Council to discuss what they should be doing with Collib's with Collib's discoveries and the British MRSC said that they deployed the issuance of patents by universities as a bad principle for academic institutions and then McGill said well I doubt if it is wise for McGill to issue a patent and it's interesting they use the language of issuing a patent as well because it sort of suggests that like McGill is issuing the patent but the office is issuing the patent to McGill and we would certainly have a better academic standing among our British colleagues if we refrained and that was the position that and you see within the documents that that was the position that McGill actually adopted was a no patent position so they they didn't the approach was not to get a patent over eminin but was in fact to trademark the name eminin with links to Collib's and the university's good names so McGill's crest would be beside the eminin logo and then exclusive rights to formulate and test the quality exclusive rights to formulate were given to various pharmaceutical companies with testing rights held back by the inventor in a way of controlling the quality and this was possible because in this world that existed back then there weren't a lot of places to do this kind of testing and there weren't a lot of people who would have been experienced enough to produce it in this kind to control the quality of the substance so it made sense I don't know how much you can take from this discussion to the present but it was an interesting example of sort of sitting within the law but outside it as well at the same time the next part of the story and this is the part that I'm sort of that I'm working on right now and that interests me is the extent to which and this was a theme that I noticed running through all the medical patenting literature was the extent to which the wars World War I and World War II as we move into the sort of 1920s, 30s, 40s era and the shape of the norm the extent to which war and its exigencies really shaped medical patenting the war and if you look at the MRC documents medical the UK medical research council documents I think the turning point for them in their position on patenting they had taken a strict no patents position for very long time and then once they observed what was happening during the war in terms of actually getting people to produce substances in the quantity and quality that they needed to administer them to their troops they found it very difficult to do without patents because it was very hard for companies to invest the resources in bringing up production manufacturing distribution capacity to do that without some sort of protection and so patents became very important during the war both wars and I was interested and what was also interesting was the extent to which the men it was men it was all men who were working in the medical field often were also involved in the military and so there was a sort of porous boundary between being a military man and being a medical man that I don't think we see today I mean banting himself was obsessed with the military and it's interesting when you look into biographies it's sort of this missing piece of the what I think is a missing piece of the puzzle and the extent to which military professionals themselves carried their own commitments and diversions to patenting within their own professionalization that I think fed into this kind of like matrix of ways of being that shaped practices at the time and so there was a similar sense that patenting and invention a military invention an important military invention would lead to conflicts of interest and so military men were discouraged from patenting or they were discouraged from inventing or introducing inventions in an uncontrolled way in battle but they weren't discouraged from inventing if they followed all the appropriate procedures and there were distinctions between the kinds of inventions that were more powerful and perhaps the kinds of inventions that were more disruptive and threatening so inventions that affected supplies were less threatening but those that were about field techniques in the in the heat of battle might be a bit more problematic. Military men themselves subscribe to a very strong ideal of the rule of law they're the ultimate boundary agents and this is a fascinating thing about military men is I think they love the law more than lawyers do they and this is what I found from studying General McNaughton who was the head of Canada's first attempt through the National Research Council to create a technology transfer organization a central one so this type the number one type the independent nonprofit foundation that would manage patents and he was responsible for moving a number of medical substances from research to market but his I think his commitment as a military man really influenced the way he went about doing that. There was a strong there was a strong primacy kind of given to obedience within the military and this also the sense of if you came up with something that might help the group to give it away to or to dedicate it so this character General McNaughton was responsible for developing Canada's first technology transfer unit at the National Research Council and he did it by taking a number of these so he also held the National Research Council's first patent over an early system of radar he brought some of these ambiguities into his role in technology transfer and many of the discussions that we see with call it happened through officials who were also based at the National Research Council or the sort of nascent organizing body that helped to develop it and so it's interesting to see how all of these different folks kind of got together and talked about it and one of the interesting things about war is that it allowed a state of exception to arise that permitted a set permitted experimentation that wasn't otherwise permitted I guess or that that wasn't that wouldn't otherwise take place and so what you see during the war and I'll just sort of summarize this briefly because my time is basically up and we are at the end but there was a great deal of experimentation with things like pools, patent custodians, patent trusteeships where patents were held in trust and used during the war and then given back holding things secret using inventions boards to decide the merit of inventions but not through the patent system, patent dedication and then licensing and non-exclusive and what was interesting about McNaughton was that he really brought non- exclusive licensing into the practice that non-exclusive licensing was a core practice of the technology transfer organization at the National Research Council that was responsible for moving a lot of these medical products out and in part I attribute this to some of his commitments as a military man and the experience during the wars of bringing these very complex intellectual property models into play in order to free up intellectual property to allow it to be produced and manufactured and distributed in an effective way during this time of crisis. So that's where I will wrap up. I look forward to your questions. We have a fair bit of time until about the 20th of the hour for questions. I'll keep a running list if people want to raise their hands and push for more detailed questions, comments. That's my question. Tina, when you're talking about you're all saying well we've heard our reputation if we apply for a patent. But then at the same time it wasn't just assuming to have the perfect reputation to pitch the way into a almost super company. Can you talk about that? Well I think in terms of the Canadian company, IRIS, it wasn't a big company. It was a very small company at that time and it was seen as up and coming. But I noticed through reading through the documents that it goes back to the smaller world kind of issue that there was a sense that part of the public good was about, I mean it's part of the technology transfer matrix these days is that part of the public good is about encouraging local companies and local industry and so hitching their wagon to the pharmaceutical company, this sort of small homegrown, I think it was Montreal based company was in fact not a bad thing. And this is what I also mean about the war playing an important role in changing the aversion to medical patenting or sort of nuance it because I think what they realized was that researchers in these laboratories with limited production capacity weren't able to supply these substances and the volume that people needed them and so this was the insulin experience and that you needed a commercial partner who was willing to invest money and bring this to market in a meaningful way and that for good or for bad the pharmaceuticals were that were those people but you see also a big division I mean this is what's interesting about the McNaughton papers that I saw at the National Research Council is that you see a big division between attitudes taken again the smaller country thing happening if an innovation came through the technology transfer and it looked like it would be good for Canadian businesses and perhaps there was a conflicting US patent that might block Canadian access or a similar Canadian patent so if there was a simultaneous invention and the Americans an American patent might preempt a Canadian one McNaughton was not above going to the patent office and telling them not to allow the US patent and I saw this in a number of circumstances and he was clever he didn't just say because we need to protect local industry he would have arguments about novelty and inventiveness and the timing and perhaps the Americans were going to use it for nefarious purposes that was often an argument as well that they might try and block Canadian manufacture and so it was really in Canadian interest to delay or otherwise obstruct and in a number of cases I can think of two in particular the patent office actually delayed the patent to the point the US patent to the point where it was no longer useful in Canada so the issue five or six years after the Canadian one and Canadian capacity had been ramped up to the point where it was effective and covered the Canadian market and the Americans were kind of left empty handed so it's a different it was a really different world I mean he had a personal phone line to the patent office and because he was a decorated general I mean this guy you have to understand how what a super what a he was like that who's that guy who went to the moon yeah no the Canadian one with the guitar hadfield yeah did he go to the moon no space station space station guy space station guy anyways the guy with the guitar wasn't following this I was having a baby at the time but like he you know he was playing the guitar he was like that I mean he wasn't that he wasn't as good with people but he was he was a bit of a he was a celebrity and so he made things happen and so he used his his personal a bit of his persona to kind of make things happen right here so thank you very much it was a fantastic history lesson on patents and medicine for myself it's interesting because I've practiced for now quite some time in basic sciences research and I recently made the transition to medicine so I'm curious what your thoughts are you talked a little bit about it about how we come to a place that's very different from white history historically it wasn't the case so what are your thoughts on about where we're at today and maybe how we can move back towards more humanist approach to patent I mean I'm interested so you were in science and now you're in medicine? still in out of research but yeah I'm also kind of a medical school here and so I'm interested in what your observations were in kind of your did you encounter patenting? certainly yeah I mean the research environment that you described is very different from what it is today so today getting funding is very difficult so in my opinion pursuing intellectual property is sort of very important for researchers who are developing and that could be effective in order to provide funding for their research I don't know what the sort of part of me it's a big issue it's a big issue and all I can say is that what I find heartwarming about some of the archival work is the extent to which it was such a personal person-to-person kind of culture of patenting universities hadn't I feel like some of the institutional or administrative mechanisms that exist now in universities and some of the assumptions about the benefit of patents and the need for patents and the sort of number crunching I mean there was no real sense back then that you counted the number of patents that a university might have that people were given some latitude to explore what their commitments were and then to express it in a legal solution I mean that's what I find interesting about Collip's position was that he kind of said well this is who I am this makes me feel good this works for me and he did this for two innovations he said this works for me I can do this it makes me able to talk to my colleagues but different world right he wasn't getting any there was no sense from the university that he had to patent and it's a very different world in that sense I don't know if patents are good or bad or ugly I think some that's a big issue there's a certain necessity and particularly if you're pursuing a certain kind of research to get a patent in a certain area but I think when the focus becomes on the commodification before it becomes on the sort of like the more inspiring aspects of science and research then that's a problem the extent to which the universities run on their own sort of institutional logic to kind of like to kind of get to that end it's like universities and I love technology transfer offices so it's not actually a critique of technology transfer it's also the extent to which research like tenure and promotion are based on accruing these kinds of numbers and results and the extent to which all of these things that we're involved with have various counters and I don't know it's a bigger cultural change ultimately I think it comes from the individual and I really think that if you have a perspective and you want to express it you should and it's amazing even though this was a smaller world I think that I believe in the power of the individual to create to create inspiring solutions like personal solutions that can then influence other people or create novel mechanisms that then radiate out so if you feel a certain way about something I think you should act on it legally and create your own sort of informal normativity regardless of whether it matches the law on the books that's a great presentation just before getting my question I should say that he looks a lot like Chris Hadfield actually that's I think why it came to mind right but more me less charismatic I think it was the style of photograph taking of the time you imagine him he was a real early adopter I have to say I mean this guy he invented radar before most people so he's another I've got a question for you considering some of the early professionalization norms he's identified in the British medical patent contents because like you I spent some time in Britain and one of the things that always struck me in my English society is the distinct sense of class there as compared to the United States and Canada and it seems to me that some of the elements of those professionalization norms that he identified like that it's unseemly for doctors to be pursuing inventions for medicine for money and for profit that sort of thing sounds a lot like some of the early gentlemanly and upper class norms that they govern the early lawyerly profession the barristers were not to be accepting some they're too proud in turn to take money just wondering if you found that how much of those professionalization norms were influenced by say class and if you found something different between the British case studies and the Canadian case studies in that sense my hypothesis being there's less sense of class in Canada than I could be in the entire department I mean there were fewer people in Canada so there was and the people who did get involved in research tended to come from a certain class often but not necessarily I mean what was interesting in the UK was the extent to which the British Medical Association and again I'm no historian of like sort of medical historian but my sense from reading the materials was that the British Medical Association was kind of about raising the class of the lowest rung of the ladder and that the more elite medical practitioners maintained their own separate organizations and so when I looked at the Royal Society that represented surgeons for example they didn't have similar they didn't pass a similar resolution right so this resolution was just formally passed on the books at the British Medical Association but the other more elite bodies that represented specialties didn't pass a similar resolution I don't know if that means that the British Medical Association was intended to sort of take the field or if they disagreed or felt that it was unnecessary because they just weren't getting their hands dirty that way or if they felt like they they kind of yeah they were above reproach in some way so I think I mean it's a great observation I haven't got a great answer to it in the UK situation if you're looking at it in relation to Canada and the extent to which it played out differently here it's hard to say I don't think I know enough about the sort of the identity of early Canadian medical practitioners to kind of understand like the role that class would have played in that yeah and their bodies were much less developed and the documentation is less as well from that period so it's hard to it was hard for me to get a sense I did get the sense that they were looking at they were reading UK materials and importing them and another project that I'm doing actually is looking at the what I call like the missing Canadian patent libraries so there were all these libraries of how to manuals of how to get patents and hold patents and do all these things that existed in these private collections in Canada that have all been dispersed but it was an immense source of transnational know-how that was kind of making its way across the borders but it's we don't know we don't know how this knowledge flowed exactly so I am trying to understand that a bit better it's an ongoing project another question just more it's a bit of a comment on a specific question this is the first question on academic research I want a researcher not a lawyer or anything but just as feedback so a lot of times I get when I listen to your talk you know when you listen to things it has chilling research or the profit and it's not curiosity driven at least from a lot of times you get a sign in a negative touch you know I'm working to do good if you're working for profit and I have a lot of friends and colleagues that are in pharmaceutical research and I can only speak for them it's just not the case my wife worked for the biotechnology association around Strasburg and Freiburg and so she with all kinds of companies and the amount of curiosity driven research is incredible so just that feeling we sometimes get that if we do something it's applicable then you've got to put down it's just a feeling and my specific question is if you go outside of health research so if you look at another fast technology industry such as semiconductors or whatever is there evidence or is there a suggestion that they would be faster if we in medical research often say we're all working together we'd be somewhat faster but would Moore's law really be faster if everybody was working together to make semiconductors that would be faster than they are and instead of having this culture of secrecy and privacy they just want it's an assumption we all think it would be better but is it really better and some of the companies in my life they were working on a problem because another problem was blocked by a patent so it was blocked by a patent that's true but they found a solution to another problem and they would come at that might not have been addressed so somehow things... I don't know anything specifically that addresses is what I saw in the 1920s 1930s Medical Research Council documents that the sense of moving from away from this idea that patents were inherently evil or destructive of research interest and curiosity to this idea that patents actually were extremely helpful and patents were extremely helpful in creating goals for people in mobilizing people in allowing access to stable resources because the reality is everybody has to put bread on the table and you need a source of funding that's going to be secure and stable to allow you to conduct your research so I hope you didn't get the impression from the talk that I felt this way because I actually feel I'm a little ambivalent like these are the arguments that arise I think that in many cases patents are the best solution the best way forward or the best solution that we have and that and that in many cases that people pursue their research with what's inside them with their particular sets of commitments and that they can have a commitment to doing groundbreaking research for the public good like Colliff did for example but they could also be interested in having a comfortable life or not below the poverty line life like Colliff did as well and I don't think there's anything wrong with that in fact I think that is a well fed researcher researcher who will succeed so I don't think that people in a particular sector or industry necessarily have a particular you know are just there sort of for a particular cutthroat kind of reasons I think it's very complicated and everybody's got their own story about it so as to the collaborative question or if we open up every field I don't know I think it really differs on the particular innovation and who has expertise in a particular area and the extent to which working together they might come up with something better when is it too many cooks when are we sharing stuff when are we just making a mess I think you have to look at every particular situation on its own thanks okay so complexity to conclude on before I thank Tina for her presentation today I just want to remind folks in the room about the last installation of this year's seminar series will be on Friday March 11th and it's entitled marketing restrictions on tobacco and alcohol products international human rights and comparative law perspectives by Oscar Cabrera who's visiting us from Georgetown University that's on March 11th so Tina thank you very much for a wonderful presentation you've complicated these arguments which we see time and again not just a hundred years ago but I can think of headlines this week around you know the gene editing technology CRISPR some folks might be paying attention to there's a billion dollar torque battle underway right now exactly these kinds of debates are arguments being raised in relation to the people the institutions and interests behind them so I really appreciate Tina's wonderful presentation for sort of drawing our attention to those complexities and the importance of sort of delving into them to really make sense of the good and the bad thank you very much I hope you all join me in thanking Tina as well