[Ip-health] MORE COMMENTS ON CIPR REPORT

[Charles Clift]

First, the leader in the Economist.
http://economist.com/opinion/displayStory.cfm?story_id=1325360
Second, an article in Science.

How poor countries can avoid the wrongs of intellectual-property rights

"THE public will learn that patents are artificial stimuli to improvident
exertions; that they cheat people by promising what they cannot perform;
that they rarely give security to really good inventions, and elevate into
importance a number of trifles...no possible good can ever come of a Patent
Law, however admirably it may be framed."

Hardly an argument you might expect The Economist to endorse. And yet this
passage appeared in our pages in 1851. In the mid-19th century, The
Economist believed that patents hindered rather than helped growth, by
restricting the free use of one man's ideas by another. By all means let
inventors be rewarded, we argued, but by trying their luck in the open
market. Patents, like protection, were an enemy of free trade.

How times change. In today's "knowledge economy", patents seem to be central
to western notions of prosperity and international trade. Signing on to the
global agreement on intellectual property, called TRIPS, is now part and
parcel of membership of the World Trade Organisation.

Most of the world's people live in countries which either do not have, or do
not enforce, intellectual-property rights. Not for much longer, however:
TRIPS requires even the least-developed countries to have some minimum
protection in place by 2006. Whether this is good for the poor is hotly
debated. America, which has the most extensive and expensive
national-patenting system in the world, preaches that patents help to foster
growth in poor places, since they stimulate domestic innovation, boost
foreign investment and improve access to new technologies.

Nonsense, retort many poor-country governments. Western-style
intellectual-property protection brings many costs and few benefits. Patent
systems are expensive to implement, draining scarce money and trained
manpower from other more pressing concerns. Patents hurt, rather than help,
domestic industries, which are often based more on copying than on
innovating. And in the process, western patent rules prevent poor people
from getting life-saving drugs, interfere with age-old farming practices and
allow foreign "pirates" to raid local biodiversity or traditional
handicrafts, without getting permission or paying compensation.

Into this fray now steps a study by an international commission set up by
the British government to examine how intellectual-property rights can help
or hinder developing countries (see article). It questions the doctrine that
patents are good for the poor. There is little evidence to show that truly
downtrodden places which introduce robust intellectual-property protection
reap any of the much-touted benefits. Certainly, patents matter greatly to
some industries, such as pharmaceuticals. But putting in a rigorous patent
system will not make Angola a hotspot of biotechnology innovation any time
soon; a licence to drive is little use without a car.

For richer, for poorer

Rich countries should remember this when they seek to impose their
intellectual-property regime on the rest of the world. It is entirely
reasonable for the world's poorest countries to argue that they need until
2016, at least, to adopt and enforce patents on pharmaceuticals. This stay
of execution should, indeed, be extended to all forms of intellectual
property. Poor countries should also be wary of any provisions in trade
deals that try to impose stronger intellectual-property standards than TRIPS
requires, or of any moves towards universal, one-size-fits-all patents in
such controversial areas as biotechnology. Rich countries should accept that
considerations of how intellectual-property rights affect poor countries are
not just a concern of overseas-aid agencies, but play a part in broader
trade and economic relations too.

That is not to reject intellectual-property rights in the poor world
altogether. Applied in the right way and at the right moment in development,
they offer opportunities not threats to poor people. Some developing
countries, such as India and China, whose industrial-scale copying of other
people's products alarms Western businesses, are sufficiently advanced to
support the sort of innovation that would benefit from patents. They should
bring their systems up to scratch, for the sake of their own industry. Even
the poorest countries can profit from well-designed intellectual-property
protection. Senegal, for example, has thousands of musicians who would
benefit from copyright enforcement.

Carefully worked-out policies for protecting intellectual property will not
solve developing countries' bigger problems, such as inadequate health care,
lousy schools and sheer poverty. But if they are adapted to fit individual
countries' circumstances, they can play a helpful role in nurturing the
domestic industries that lasting growth requires.

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PATENT LAWS:
Report Urges Leeway for Developing WorldJennifer Couzin and Pallava Bagla
An independent commission appointed by the British government is advocating
weaker intellectual property (IP) laws in developing countries in hopes of
fostering innovation. The report, released this week, also criticizes the
World Trade Organization's agreement on Trade-Related Aspects of
Intellectual Property Rights (TRIPS), which in 1995 delineated minimum
global standards that nations should achieve.
"We've recommended that patents aren't necessarily a good idea for many
developing countries," says Charles Clift, a London economist and head of
the secretariat that managed the six-member commission. Commissioners
believe that developing countries can ill afford to pay fees on patented
inventions, both domestic and foreign, that would help them expand their
technological base. Devinder Sharma, an analyst at the Forum for
Biotechnology and Food Security in New Delhi, India, says he's pleased that
"for the first time, a high-powered body is saying, 'Go slow on patents.' "
The U.K. government launched the commission after a review of the problems
associated with globalization. Its conclusions (www.iprcommission.org
<http://www.iprcommission.org/>) reinforce arguments made for years by
nongovernmental organizations. But some say a position that favors narrower
patents is misguided. "A policy saying you should not grant patents on
things that are really, truly inventive makes no sense for developing
countries," says Jeffrey Kushan, a patent attorney at Sidley Austin Brown &
Wood LLP in Washington, D.C. "At the practical level, a lot of these issues
don't have any data."

The commissioners acknowledge that a dearth of IP regulations in the least
developed countries forced them to guess the impact of U.S. or European-type
IP laws on a country's technological development. After consulting with
institutions in nine developed and developing countries, however, they
concluded that many developing nations ought to avoid issuing patents that,
for example, allow the kind of broad protection available in the United
States because it would stifle additional innovation. The commissioners also
encouraged developing nations to adopt broad exemptions for educational and
research use of patented materials. The group agreed, too, that a single IP
system cannot serve the diversity of developing countries. Commission member
Raghunath Anant Mashelkar, a polymer engineer and director-general of
India's Council of Scientific and Industrial Research, says the report's
message to authorities is "Don't force-feed stringent IP [rights] laws to
poor countries that do not have the inherent capacity to implement them."
The commissioners were also concerned about the potential high cost of
licensing a patent. For example, developing countries are generally not
permitted to sell cheap generics of drugs still under patent protection
(AIDS drugs being a notable exception). Stanford University law professor
John Barton, who chaired the commission, suggests that such fees might
prevent widespread use of an invention.

Kushan dismisses that argument, saying that "if a company wants to make
money in a market, it's going to adjust its license fees." He also says that
raising IP standards has historically promoted international competition and
investment, citing reforms in Brazil in the late 1990s that preceded a $2
billion infusion from U.S. drug companies. Lila Feisee, IP director at BIO,
an industry group in Washington, D.C., agrees. "Obviously, every country's
got its own special criteria," she says. Still, "we push very hard to try
and harmonize the patent laws of different countries."

The report will be presented next week to officials from the World Trade
Organization and the World Intellectual Property Organization. The
commissioners hope that their ideas will be incorporated into TRIPS, which
continues to undergo revisions, or other international agreements.