14 October 2002
the grip of patents on research
property rules are often seen as dividing the interests of developed
and developing countries. But, as a recent report stresses, in areas
such as their impact on research, both share common interests in reform.
One of the more perverse tendencies of the globalisation process is
the one-size-fits-all ideology of social and economic development
embedded in the rules of international trade. The basic idea is that
the tried and tested policies responsible for economic growth in the
developed world have a universal validity. Attempts to mould these
policies to local conditions and concerns will, it is said, only undermine
for example, the rules on patenting. In the developed world, society's
agreement to give an inventor exclusive use of his or her invention
for a limited period of time in exchange for openly divulging
its technical details which will, eventually, allow others to improve
on it has been a major stimulus to technological innovation.
Extending this principle across the world, argue supporters of the
patent system, will similarly promote a global distribution of innovation.
non-level playing field
it was as simple. A recent report by an international panel
set up by, but independent of, the United Kingdom's Department for
International Development (DFID) has performed an invaluable
service by describing in detail the many ways in which, in practice,
the playing field is far from level. A system intended to protect
the interests of the 'weak' in other words, the isolated inventor
has ironically ended up frequently doing precisely the opposite,
reinforcing the dominance of the strong, namely those companies (and
countries) that already possess scientific and technical might.
report 'Integrating Intellectual Property Rights and Development Policy',
the Commission makes a number of recommendations about ways in which
this imbalance can be corrected (see Patents 'could hinder poverty
reduction', 12 September 2002).
does not go as far as some would like. In particular it does not call
for a re-negotiation of the Agreement on Trade-Related Intellectual
Property Rights (TRIPS) of the World Trade Organisation, a move which
would, in the words of the UK branch of Oxfam, "demonstrate a
genuine commitment by rich country governments to transform the WTO
from a rich man's club to one that puts poverty reduction at the top
of its agenda". Nevertheless the Intellectual Property Rights
(IPR) Commission marshals an impressive body of evidence to back up
its main conclusion, namely that intellectual property regimes should
take into account the individual circumstances of developing countries.
with patents in research
so good. At the same time, however, the report reminds us that there
are some areas where current patent rules can cause problems in developed
and developing countries alike. Many of these are raised by the restrictions
that patent owners can (legitimately) place on the way in which others
use their inventions.
until relatively recently, the line between what was and what was
not patentable in the research laboratory was relatively clear and
trouble-free. Innovative laboratory techniques, particularly where
these could be built into items of equipment produced by laboratory
suppliers, were accepted as patentable. But laboratory samples, as
well as the scientific results developed from experiments on them,
were regarded as 'discoveries' rather than 'inventions', and thus
lay outside the scope of what could be patented.
however, has changed with the modern genetic revolution. On the one
hand, biological samples have come to be seen as containing potentially
valuable information; on the other, the use of scientific results
in developing new laboratory techniques (gene splicing, for example)
and other "research tools" has not only placed a premium
on such results, but also defined a totally new set of constraints
on researchers that some say could lead to "academic gridlock".
call for action
Commission is by no means the first body to have pointed out the threats
that excessive restrictions can place on open scientific inquiry.
Nor is it the first to underline the fact that such rules can impact
as much on scientists working in developing countries as on those
in the developed world (see Gene patenting 'rules must be stricter',
29 July 2002).
the Commission has performed a service in placing this threat in context,
and in pinpointing some of the areas in which action is required.
For example, it urges research managers to remain aware that intellectual
property protection is essentially a technique for facilitating technology
transfer not primarily for revenue generation (as many still
tend to see it). As a result, says the Commission "patenting
and licensing should only be undertaken where it is judged necessary
to encourage private sector development and the application of technologies".
for a balanced approach here is clear. A similar need is identified
by the Commission in determining whether it is appropriate to take
out "defensive" patents on important inventions, which can
used as bargaining tools "where complementary technologies are
owned by private sector entities, and cross-licensing may be required
to access these technologies".
of course, is how to ensure that the balance struck is an appropriate
one. And this is ultimately a political question, since it depends
on the relative weight given to different voices in the community.
Certainly it is clear that, in most of the international negotiations
on IPR issues that have taken place to date (for example over the
terms and implementation of TRIPS), the balance has been heavily weighted
in favour of the corporate sector in the developed world.
Commission's report is unlikely, on its own, to secure any significant
changes in international thinking about patents. Hopefully, however,
it will help to reinforce the message coming from a growing number
of other sources including the recent World Summit on Sustainable
Development that this weighting needs to be readjusted in favour
of developing countries. Hopefully, in so doing, the balance can be
shifted back in favour of open scientific communication, which will
benefit both developed and developing nations.
14 October 2002