[Ip-health] WIPO's patent menu: Report on the International Patent System

[Thiru Balasubramaniam]

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WIPO | Thiru, from Geneva
WIPO=92s patent menu: Report on the International Patent System
April 28th, 2008 by Thiru Balasubramaniam

On April 15, 2008, WIPO released its long awaited Report on the
International Patent System. As noted in the KEI web blog entitled
Chile spearheads change at WIPO patent committee (July 16, 2007) and
the short missive to KEI=92s a2k list (August 13, 2007), whatisatstake
in the content of WIPO=92s Report on the International Patent System is
the direction that the WIPOStanding Committee on the Law of Patents
(SCP) will take. This 229 page document provides brief descriptions of
areas of technical interest and policy options requested by Member
States. Here below extracts of WIPO=92s descriptions of, interalia,
collaborative research projects.

WIPO has come along way since 3 Nobel laureates, civil society,
academics, scientists, economists and others wrote a letter on July 7,
2003 requesting WIPO Director-General Kamil Idris to convene a meeting
on open collaborative research projects. Given the array of policy
options presented in this new WIPO patent report, the onus is now upon
WIPO Member States to reform the WIPO patent committee to look at new
paradigms for stimulating innovation.

    (ii) The Proposal for a Medical Research and Development (R&D)
Treaty

    127. In the context of public health and the influence on it of
intellectual property rights, it has been suggested to develop a so
called medical R&D Treaty. The argument is that current pharmaceutical
research and development results in too many resources being invested
in the diseases affecting rich countries, thus neglecting poor
countries=92 diseases, and that only a fundamental restructuring of the
current research and development model can guarantee that the latter
diseases are adequately addressed. The proposed draft R&D treaty would
provide new obligations and economic incentives to invest in priority
research projects, and addresses several other important topics such
as open access publishing. It includes agreements that member
countries reduce intellectual property protection in certain areas,
such as to permit research exceptions for patents, and exceptions to
patentability relating to certain open source medical databases. The
core country obligation is to support medical R&D, which could be
achieved, in particular, through public sector funding, tax credits,
or purchases of patented medicines (measured by the R&D stimulated by
such purchases), as well as through newer methods, such as medical
innovation prize funds, competitive intermediaries, or various open
source collaborative research projects. Countries may be obliged to
provide a percentage of their GDP, under a progressive rate, for
medical R&D, with minimum investments for priority research projects,
such as investment in neglected diseases or global infectious
diseases. The proposal would also create a system of credits to reward
and stimulate investments in research projects considered socially
important. Member countries meeting the obligation under the R&D
Treaty would be exempted from obligations under other trade agreements
on patents or drug prices. Critical voices of the initiative claim
that it might weaken the incentives of pharmaceutical companies to
continue investing in R&D and that all attempts to base research on a
public approach rather than on private initiative have failed in the
past.

    Collaborative Research Projects
    123. In a more and more complex world, research has not only
become more international, but it has become dependent on a broad
range of different - and often newly emerging - technologies, on
increased cooperation between various research teams and on sufficient
funding to face the exponential rise of costs over the past years.
Business strategies today therefore need to be supporting global
competitiveness, innovation and rapid market responsiveness. These
factors have contributed, since the early 1980s, to the development of
various initiatives in different areas of technology (e.g. computer
sciences; mobile communication technologies; biotechnologies or,
perhaps more importantly, public health) to address research in a more
collective way at different levels, with the objective of establishing
excellence in research projects and networks able to attract
researchers and investments from many countries and industries, raise
sufficient funding for such R&D and to turn the fruits of that
research into concrete and useful products for society.

    124. In this context, the argument is made by the advocates of the
patent system that it offers an adequate incentive structure to foster
innovation, as it uses the private sector with its financial and
expert resources to achieve public policy objectives, has built an
enormous source of technical knowledge that is freely available for
further research and can be used for various other purposes. Its is
further argued that the patent system, where it is considered not to
be appropriate for certain countries or situations, contains a number
of flexibilities that can be used, in particular, research exemptions
and compulsory licenses. Others have voiced disagreement with this
approach, as the patent system may stand in the way of the above-
mentioned collaborative approaches to research and development by, in
particular, blocking access to or use of necessary information. They
argue, in particular, that the patent system prevents access to
certain inventions needed for further research, increases cost and
complexity by encouraging a system creating multiple licenses and does
direct research towards products that are only expected to generate
high benefits, thereby neglecting, for example, diseases that affect
specifically poor countries. Therefore, according to these voices,
collaborative models rather than exclusive rights have to be promoted.
Two examples of such collaborative business models are briefly
introduced here, namely the Open Source model and the so-called
Research and Development (R&D) Treaty.

    (i) Open Source
    125. The open source model has been well-known for many years in
the area of software, where it has been established as a distribution
model that is based on intellectual property rights (in the case of
software, often copyright). =91Open source=92 software is often used as a
general expression for many forms of non-proprietary software, which
differ principally in respect of the licensing terms under which
changed versions of the source code may be further distributed. The
basic idea of open source is to make available the source code of the
computer program and to thus permit a more collaborative way of follow-
on innovation, subject to certain conditions, which are often more
open than those governing traditional licenses, as they would give
access to the programming code of the software and prevent the
possibility of obtaining an exclusive right on follow-on innovation
(see for example GPL 41[41 http://www.gnu.org/copyleft/gpl.html])

    Indeed, under open source, adding, for example, a new
functionality to a specific software may be done without the
permission of the creator of the original software, but no patent
could for example be claimed on the result, even if it did, in
principle, meet patentability requirements. The open source approach
is not necessarily against intellectual property, as it is based on
intellectual property rights, and is sometimes also used by businesses
as a complementary strategy complementing intellectual property
policies making use of patents and copyright, for example by IBM or
SUN who use and promote open source as part of their business strategy.

    126. Although some of the open source features developed in the
area of software cannot be simply transposed to other areas, the main
principle that certain parts of the commons should not be the subject
of a proprietary right has been found interesting enough to be tested
and applied in other areas. Examples include the Hapmap Project that
compares the genetic sequences of individuals to identify halotypes.
The information is made available to researchers freely, but subject
to a data access policy, which forbids the users from reducing the
access to data and shares the data with only those who had made the
same agreement. Another example is the SNP consortium, which aims to
create a public resource the access to which would not block access to
data by other researchers and companies. One further example is the
BIOS (Biological Innovation for Open Society) project by CAMBIA[FT 42: http=
://www.bios.net/daisy/bios/home.html
] under which biotechnological inventions should be available to
researchers with least restrictions.

    Under the BIOS project, BiOS Licenses have been developed as a
model largely inspired by the GPL philosophy. It permits the use of
all intellectual property for development and commercialization, but
the licensee has an obligation to also grant licenses on further
improvements.

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Thiru Balasubramaniam
Geneva Representative
Knowledge Ecology International (KEI)
thiru@keionline.org


Tel: +41 22 791 6727
Mobile: +41 76 508 0997