SciDev.Net

SciDev.Net
14 October 2002
David Dickson
http://www.scidev.net/archives/editorial/comment37_new.html

Loosening the grip of patents on research

Intellectual 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 their effectiveness.

Take, 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.

A non-level playing field

If only 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.

In its 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).

The report 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.

Problems with patents in research

So far, 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.

Additionally, 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.

All this, 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".

A call for action

The IPR 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).

However 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".

The need 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".

Striking a balance

The question, 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.

The IPR 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.

© SciDev.Net 2002

David Dickson
14 October 2002