[Ip-health] SciDev.Net editorial: time for action on patents

[James ARKINSTALL]

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http://www.scidev.net/content/editorials/eng/now-is-the-time-for-internatio=
nal-action-on-patents.cfm=0D
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Now is the time for international action on patents=0D
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12 March 2007=0D
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Pressure is growing for a major shift in international intellectual=0D
property rules that addresses the interests of the poor.=0D
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For the last two years, members of the World Intellectual Property=0D
Organization (WIPO) have been discussing, somewhat acrimoniously, the=0D
so-called 'development agenda'. This was initially proposed by a group of=
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developing countries that believed WIPO's stance on intellectual property=
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rights (IPR) issues was unduly influenced by the interests of developed=0D
countries and powerful companies seeking to strengthen their global=0D
intellectual property rights.=0D
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Last month there was a significant breakthrough in these discussions when=
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various important new principles governing WIPO's approach were agreed.=0D
These included taking into account different levels of development,=0D
preserving a balance between costs and benefits in setting new IPR rules,=
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and the importance of preserving the 'public domain' of knowledge.=0D
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A few years ago such discussions would have been unlikely to produce=0D
anything useful. Strong pro-business patent legislation and guidelines =E2=
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such as those in the Trade Related Aspects of Intellectual Property Rights=
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(TRIPS) agreement that countries in or joining the World Trade Organization=
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must accept =E2=80=94 were promoted as an essential component of efforts to=
 promote=0D
economic development, irrespective of whether countries were rich or poor.=
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But patent rules have proved to be an Achilles heel of globalisation. A=0D
series of widely publicised cases have highlighted the social injustices=0D
that accompany globalisation. These range from the appropriation of=0D
indigenous knowledge by multinational companies, to the way that patents=0D
allow pharmaceutical companies to price essential medicines out of the=0D
reach of the poor.=0D
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All this means that public support for a shift in IPR rules has never been=
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stronger. The challenge lies in ensuring that any new rules continue to=0D
encourage a steady flow of technological innovations, whilst shifting the=
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balance of who benefits from such innovation more explicitly toward the=0D
poor.=0D
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The Novartis case=0D
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In a recent court case, Swiss pharmaceutical company Novartis appealed the=
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Indian government's decision not to extend its patent for an anti-cancer=0D
treatment called Gleevec (see Petition supports India's generic drugs). The=
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company argues that significant improvements to the drug warrant extending=
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the life of the patent. It is challenging the section of India's new patent=
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law that it believes is responsible for the rejection of its patent.=0D
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Novartis says strong patent protection is essential to encourage private=0D
investment in research for new and improved drugs. This section of the law=
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=E2=80=94 which seeks to limit patents granted for marginal changes to exis=
ting=0D
medicines =E2=80=94 does not comply with the TRIPS agreement, says the comp=
any.=0D
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Critics, including Indian and international non-governmental organisations,=
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argue that if the courts approve the company's demands it will be harder=0D
for Indian companies to produce the cheap generic versions of existing=0D
drugs that are used across the developing world to treat diseases such as=
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malaria and HIV/AIDS.=0D
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It is a compelling case, made even more so by the withdrawal of an=0D
independent committee report commissioned by the Indian government which=0D
was initially used by Novartis to support its arguments. This followed the=
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revelation that critical parts were taken almost word-for-word from a study=
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partly financed by the pharmaceutical industry (see India 'needs=0D
independent ethics body' says watchdog).=0D
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Turning tides=0D
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Even in the United States, a number of recent court decisions have weighed=
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in favour of the public interest. Reports by the 2002 UK Commission on=0D
Intellectual Property Rights and the World Health Organization's Commission=
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on Intellectual Property Rights Innovation and Public Health have also=0D
helped to shift opinion in favour of a more balanced approach to=0D
intellectual property that takes account of the needs of poor people in=0D
developing countries.=0D
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But the pharmaceutical industry is not going to give up easily. With the=0D
number of new drugs continuing to fall, the pressure is on to squeeze=0D
profits out of existing drugs. This means continuing to resist changes in=
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national patent law that the industry finds unwelcome, such as those=0D
illustrated by the Gleevec case, as they might be copied by other=0D
developing countries.=0D
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The industry is also keen to strengthen existing patent rights, such as by=
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supporting bilateral trade agreements that impose obligations on developing=
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countries that go beyond TRIPS and would, for instance, outlaw the disputed=
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provision of India's patent act.=0D
Hence the force with which Novartis has been defending its claims in India,=
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despite the damage it has caused its public image. Similar battles are=0D
being fought in the agri-biotech sector, where companies are resisting=0D
demands to grant farmers the right to use and sell seeds generated from=0D
patent-protected crops.=0D
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Patent reform=0D
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Ultimately it is not public image or even industry profit that matters. It=
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is whether the global industrial and economic capacity can be harnessed in=
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a way that ensures, among other things, that the world's poor have access=
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to the medicines and food that they need, at prices they can afford.=0D
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That does not mean we should eliminate patents =E2=80=94 it remains appropr=
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that those responsible for significant innovations are rewarded for their=
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efforts. But it does require a shift in the way that patent legislation is=
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conceived.=0D
Governments should spend less time seeking ways to tighten legislation that=
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primarily benefits private companies, and more on creating IPR rules that=
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genuinely serve development. Such legislation should take full account of=
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the context in which the rules are applied and the ways in which the=0D
benefits of applying IPR to innovation are distributed.=0D
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That is why the recent developments at WIPO are hopeful. Other promising=0D
proposals include treaties for medical research and development and access=
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to knowledge that would rebalance the IPR system in a more fundamental way.=
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With IPR issues rapidly climbing the political agenda in regions such as=0D
sub-Saharan Africa, the top priority for governments and their policymakers=
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should be to seek agreement on a workable, pro-poor treaty. That might go=
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some way to restoring confidence in globalisation in the eyes of an=0D
increasingly sceptical public.=0D
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David Dickson=0D
Director, SciDev.Net