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This year’s World Intellectual Property Day on April 26 focused on promoting green innovation as a key element in meeting the challenges of climate change In his message to mark the day, WIPO Director General Francis Gurry highlighted the contribution that a balanced intellectual property (IP) system can make in enabling the development of technology-based solutions to mitigate the impact of climate change.
The first to convert the discussion to action was the UK Intellectual Property Office when it announced that green inventions will be fast tracked through the patent process.David Lammy, Minister for Intellectual Property, announced the launch an initiative which will enable inventions with an environmental benefit to be given priority within the patent system.
There is speculation that companies in countries like India and China will take the lead in terms of green innovation. As per an Economic Times article a project by the Center for Scientific and Industrial Research (CSIR), an Indian organization, has resulted in a solar powered rickshaw with a top speed of 15 km an hour and a range of 50-70 km. The rickshaw runs on a 36-volt battery that can be replaced at a local solar-power charging station. The vehicle is now being tested in Delhi with the aim of replacing some of the city’s 500 000 rickshaws. If successful, the soleckshaw as it is called, will provide a clean and relatively speedy option for moving around crowded Indian streets.
Another innovation in China produced an inexpensive solar powered car. The car has a sticker price of just over $5000 with a range of up to 150 km. The tiny Chery QQ clone has been fitted with roof mounted solar panels that absorb 95% of the solar energy coming in. Although not luxurious, the vehicle may still be attractive to the rising middle class population in China
The concept behind this speculation is simple – companies in emerging economies innovate in the face of price sensitivity, although their consumers have lower expectations. In the green sector emerging economy players have an additional motivation in the fact that they are often based in countries that are much more polluted than developed nations. There is market demand as well as government impetus to come up with inexpensive ways to clean up the air and water.
The WIPO initiative and a trend following the developments of green inventions being fast tracked through the patent process in the United Kingdom by other nations can kick start a movement where IP will have a definite role to play in mitigate the impact of climate change.
Today, how many people did you see walking down the street that had some sort of body modification, tattoos to be specific? One, two, maybe half a dozen? Tattoos are now a fairly popular form of expression in Western culture. However many of the symbols, as well as processes that are utilized in tattooing come from indigenous cultures where (unlike the west) tattoos are the norm, not the exception.
Tattooing is a process by which pigment is inserted under the skin in order to create a permanent image. Tattooing has only recently gained general acceptance in Western society. Today, tattooing in Western culture is something that is seen as fashionable and can be used to identify oneself with specific subcultures. During the 1990s tattoo artists were looking for new designs and methods of tattooing to explore. Many of them found that the bold lines associated with the tattoos done in the south Pacific added a new unique flavor to their tattoos. From the early 90s to today, tribal tattoo’s popularity has sky-rocketed. Now, almost everyone who goes to get a tattoo, will get a “tribal” design. According to Vanishingtattoo.com’s Tattoo Facts & Statistics page, the keyword most often used when searching for tattoo designs was the word tribal.
So what if Indigenous tattoo designs have become popular with the public? Why should any of this be significant, isn’t it just another form of fashion or personal adornment? The main problem with tribal style tattoos, is that most of them are based off of symbols that have been appropriated from other cultures. These symbols and designs all have culture specific meanings which are lost, simply due to the fact that most of the majority of Western society doesn’t understand the meaning behind many of these symbols.
So the tattoos are taken out of context, surely there is no harm in this? But if we consider the fact that the designs are part of a shared cultural practice and heritage, then these symbols should be under the purview of indigenous knowledge. Though these symbols are used fairly freely in many of the cultures with which they are associated, the cultural concept of things like “public domain” are not universal. Often times before a specific design can be applied a person has to demonstrate that they qualify for this specific tattoo. As I said earlier these symbols sometimes have culture specific meanings, if these tattoos are applied to people who don’t “qualify” for the tattoos then it is often times considered offensive.
The ownership of these symbols is not in question; culturally they are owned by the indigenous people from the country where the design originated. The question is, in today current system of intellectual property, who has control, and can benifit or gain profit from these designs. Since many of these traditional designs are not held under copyright, they are freely used by many people. However if these designs fall under the purview of indigenous knowledge then they should in fact be protected by the United Nations Declaration on the Rights of Indigenous Peoples.
“Indigenous peoples have the right to practice and revitalize their cultural traditions and customs. This includes the right to maintain, protect and develop the past, present and future manifestations of their cultures, such as archaeological and historical sites, artifacts, designs, ceremonies, technologies and visual and performing arts and literature.”
This passage, although not strictly relating to intellectual property, is applicable to the concept. If indigenous people have the right to protect specific designs from their culture, then it follows that they should be able to protect the practice and symbols associated with tattooing. However, it seems highly unlikely that any group of indigenous people would be able to muster the legal force to to stop individuals from tattooing their cultural symbols on their body. For that matter there is no manner of official regulation in the body modification culture whatsoever.
The status of folklore doesn’t appear to be as important as indigenous knowledge relating to the medicinal use of plants. However it is important enough that many governments all over the world have been pushing for legislation that would protect folklore at an international level. In 2000 the WIPO in concert with an intergovernmental committee, have entered into talks to create an international frame-work for the protection of folklore. Many governments have or are moving towards providing for the national protection of folklore, such as the government of Australia
Cultural appropriation has been going on for thousands of years. The free flow and exchange of ideas across cultures is what has helped create the world we live in today. Often times, we see nearby cultures that have similar traditions. In the realm of tattoos, we see this sharing of designs and motifs that occurs among the various Iban people of what was once known as Borneo. These designs were shared even though many of these symbols are associated with specific tribes. With so many years of cultural melding, and exchange, its difficult to say where exactly certain symbols come from. However the world that we live in today, is one of regulations, power and profit. Certain aspects of cultural exchange can be extremely beneficial. However when a profit is being made off a design/idea/process that has been established as belonging to an indigenous population, there needs to be compensation. As of this point there is not system built into the intellectual property framework to deal with the appropriation of cultural designs that is effective. Not even an Access and Benefit Sharing (ABS) regime would even begin to compensate indigenous people. Perhaps if in the future there is a regulatory body for the body modification industry then we may see some changes.
This guest post comes from Professor Marcus Hurn, who is a distinguished Professor at Pierce Law and has taught fifteen different subjects during his teaching tenure. This post on the Taxonomy of Property focuses on classification on Intellectual Property in the Basics of Property. He broadly looks into Property and narrows down to the issues of Intellectual Property and even Trade Secrets.
A Brief Taxonomy of Property
There are four major classes of Property: Land, Goods, Obligations, and Intellectual Property. They differ based on whether they are tangible or not, physically movable or not, universal or not, and exhaustible or not. The traditional classification system has a superstructure, and there are significant sub-categories.
Property is real or personal.
Real property (immovables in civilian parlance) is space defined with reference to the surface of the earth, including the soil and things contained in or affixed to the soil. It is tangible but not movable. It cannot be lost, stolen, or physically destroyed. It has universal scope in the sense that an owner has rights against the whole world. It is exhaustible in the sense that only limited numbers of people can use it at one time. Its boundaries are physically ascertainable. It is ultimately controlled through possession and legal registries.
Personal property (movables in civilian parlance) is tangible or intangible.
Tangible personal property is goods/chattels.
It is literally movable, and can be lost, stolen, or physically destroyed. It has universal scope and is exhaustible. It physically defines its own boundaries. It is ultimately controlled through possession or sometimes legal registries.
Intangible personal property is Obligations or IP.
At common law most intangibles were choses/things/rights in action and not treated as property, merely as rights to legally compel or prevent some action or recover damages. Now nearly all obligations are assignable property in our system. (The major exception is some claims for personal torts.)
Obligations are rights to demand a performance or payment from some definite person or finite group of persons, thus they are not universal. They are not literally movable. All obligations are exhaustible.
Obligations are of two kinds: Wholly Intangible or Chattelized.
Wholly intangible obligations (e.g. contract rights, uncertificated stock, licenses) cannot be lost, stolen, or physically destroyed, are defined by proof of the legal obligation, and are ultimately controlled by notice to or coercion of the obligor (assignment, garnishment).
Chattelized Obligations (e.g. negotiable instruments, bills of lading, certificated investment securities and their modern electronic analogues) can be lost, stolen, or physically destroyed. They are defined by the words of the document/record and the law, and are controlled by transfer of the document by endorsement and delivery or encrypted transfer of the unique record. Loss of the document or record does not necessarily destroy the underlying obligation– if the document can properly be accounted for, the obligation can be enforced.
Intellectual Property
IP, as intangible property, cannot be lost, stolen, or physically destroyed. The “boundaries” are defined by grant or usage and the relevant law. It is ultimately controlled by assignment and, for some types, registries. Uniquely, it is inexhaustible — a potentially infinite number of persons can use it simultaneously or successively. Its oddity comes from combining one characteristic of tangible property– universality– with inexhaustibility.
Hybrids
There are, of course, some boundary problems and hybrids: e.g. fixtures, products of the soil, software embodied in goods. In a sense chattelized documents are hybrids. The paper form supplies the convenience of physical goods, and the electronic form (ignoring the physicality of the server) preserves that convenience (unique record) in intangible form.
Trade secrets are also a hybrid. They grow out of a combination of the law of tangibles (trespass to land, trespass to chattels– the safe, files, or computer) and obligations (confidentiality agreements). Trade secrets look universal, but are essentially finite obligations– anyone breaching the contract/tort security web is a wrongdoer, but one who learns the secret without culpability is not bound to defer to the original owner.
HIV and TB combined are a particularly lethal combination; each speeding the progress of the other. Someone who is HIV-positive and infected with TB bacilli is about 20 more times likely to get sick than someone who is HIV-negative and infected with TB bacilli in countries with a generalized HIV epidemic (compared with a previous estimate of six), and between 26 and 37 times more likely to develop TB in countries where HIV prevalence is lower (compared with a previous estimate of 30). TB is also more difficult to diagnose and treat in people who are HIV-positive. This leads to delays in treatment of TB and an increased risk that it will spread to other people
As indicated by the reported reduction of the global burden of TB in the 2009 WHO Global TB Report, efforts to achieve the decrease in the disease burden goals of 2004 are meeting with some success. However, the 2009 report also states that “the majority of HIV positive TB cases do not know their HIV status; and the majority of HIV positive TB cases that do know their status are not yet accessing ART [Anti-retroviral treatment].” The conclusion of the report recommends implementing the “range of interventions and approaches included in the Stop TB Strategy, with the necessary financial backing.” This recommendation makes little sense for two reasons. First, the Stop TB Strategy is basically the same approach that was recommended in the 2004 report and second, given the global financial crisis, additional funding will be hard to come by.
The public and private sector must act swiftly to stem this tide. The contribution of public–private initiatives to detection and treatment of TB cases is difficult to quantify, but examples such as Pakistan and the Philippines (where public–private partnerships accounted for 19% and 8% of all notifications, respectively) illustrate their potential to contribute to increased case detection. However, further collaboration is needed to attain a more holistic method of addressing the other circumstances surrounding this issue.
Similar to the recommendations made by the WHO TB Initiative in 2005 to address regulatory concerns, emphasis should be placed on cooperation and information sharing between the various service organizations in developed and developing countries. Those people living with HIV/TB and TB should have ready access to education about medical treatment plans and trials, proper nutrition, hygiene and safe sex practices. This can be accomplished in part by decentralizing HIV testing centers which have historically been the warehouses of such knowledge. According to the 2009 report, on average, worldwide, as of 2007 five TB treatment facilities depended on one HIV testing center. Integrating HIV testing centers and TB treatment centers would also encourage TB patients to get tested for HIV because they could avoid any stigmatization attached to going to a facility specifically for that purpose.
A page should also be taken out of Janet Agaya’s playbook at the Kenya Medical Research Institute. Agaya is the study coordinator for a TB prevalence survey to be used in preparation for an expected TB vaccine study to be conducted in one to two years. While there, Agaya is also doing a behavioral study to determine why some people delay seeking treatment for TB and others self-report. This sort of multi-tasking by researchers and clinicians could not only address some of the immediate education needs stated above but could also result in data that could be extrapolated to other countries.
New strategies of global cooperation and information sharing must be created if the goal of eliminating TB worldwide by 2015 is to be reached. Accomplishing this goal must be a priority. Otherwise, the burden of treating those affected by HIV/TB may crush an already faltering health care system.
Almost everyone who is interested in intellectual property rights should have heard by now about the Creative Commons (the entire content of this ipHandbook website is, after all, licensed under CC license 3.0). The Creative Commons is an organization which came into existence in 2001. The non-profit company seeks to help increase the amount of creative or unique works that are available to be used or built upon by the public. In order to do this the company helps clients create unique licenses. The main reason why these licenses are different from standard copyright licenses is that a simple set of standard licenses have been carefully crafted to allow users make their work available to others for non-commercial purposes There are certain rights which are inherent in all of the licenses that the Creative Commons offers, these are called baseline rights. These rights include, but are not limited to, the right of free distribution, display as well as certain other moral rights.
indigenous Recently there has been a movement to aid in the protection of indigenous knowledge (mostly medicinal preparations but also cultural products) using the Creative Commons licensing system. Certain individuals feel that the Creative Commons are an extremely effective method of protecting indigenous knowledge of substances and preparations. Since the free use defined by the Creative Commons is based on the assumption that there will be no commercial use of the copyrighted work, it is assumed that companies or bioprospectors cannot patent preparations specific to indigenous peoples’ knowledge. At the same time, using the Creative Commons licensing system also places the indigenous knowledge into the public domain for everyone to see.
However, I see a few problems with this approach. Copyright protects literary and artistic works. It serves to protect the “expression of THOUGHT” rather than “IDEAS” which can form the basis for patent protection. A scientific paper on the use of a certain plant can lead others to do some research and isolate the gene for the given compound and patent it without infringing any copyright, nor any Creative Commons license for that matter. Activists intend to use the various Creative Commons licenses to protect indigenous people from being exploited but they may in fact be severely harming indigenous peoples’ cultures and societies. After reading the blog by Preston Henderson, I now realize that there are many more factors at play in the arena of indigenous peoples and intellectual property.
The first thing Henderson’s blog drew to my attention was that we, as a society in the West, have a radically different way of looking at how knowledge passes through society. Henderson talks about how most Western experts feel that knowledge eventually becomes public domain over time. That is, that the knowledge is open and free to be used by all members of society. For example, in America (as well as most of the world) the term for a utility patent is 20 years. This means that 20 years after the filing date, the patent no longer prohibits others from using the invention For copyright, the typical term is 70 years from the date of creation or 50 years from the death of the author, whichever is longer. However many cultures do not have the same concept of ownership that Westerners do. Indigenous knowledge is often not owned, but it is something that is sacred and to be protected by the people. For example, Shamans in many cultures seek knowledge from various spiritual sources, gaining “information” about helpful plants or admixtures, and they become the custodians of this knowledge. When activists or other well meaning individuals put this information out into the world under a creative commons license, they are opening that knowledge up to people all over the world. As a consequence, those people who once held this knowledge are now no longer the guardians or custodians of it.
In my opinion, what comes closest to offering reliable, and arguably culturally contextual protection of indigenous knowledge, is silence. This would be the equivalent of a trade secret in the established intellectual property system. Whereas a trade secret is like a sound-proof room keeping the information enclosed and confidential, the Creative Common’s licenses are like a bullhorn announcing the information to the world.
The one problem that I have with activists who are seeking to protect indigenous knowledge through the current intellectual property system is that many seem to over-simplify the situation. They see the issue as one central problem that needs to be solved, and that failure to resolve the problem is keeping indigenous people from being taken advantage of. The activists see only the big biotech companies and scientist bioprospecting in the rain forest as their adversaries. Rather, they should verify their own understanding of the complex value-systems. What really must occur is communication between activists or government officials to protect indigenous knowledge and the indigenous people themselves. The current system of intellectual property must be carefully explained so that indigenous people can make the choice for themselves about what to do with their knowledge. Since indigenous knowledge can be disseminated over a large culturally varied area, any effective system to protect indigenous knowledge may well be beyond the reach of our times.
As the World Health Organization has raised its pandemic alert for swine flu to “phase 5” the second highest level, meaning that it believes a global outbreak of the disease is imminent, the relationship between patent rights and access to essential medicines has elicited again. As per WHO the phase 5 alert means there is sustained human to human spread in at least two countries. It also signals that efforts to produce a vaccine will be ramped up.
As it turns out that there is no vaccine available as yet and Tamiflu (Oseltamivir), a drug patented by Gilead and exclusively licensed to Roche is considered as one of the best drugs available today to cater to this kind of flu. Even at the time of the bird flu, it was known that Tamiflu was not the optimal drug to cater to such viruses– but only that of all the possible alternatives, it was the best.
In India, Deputy Controller of Patents, in a decision on the 23rd of March 2009, struck down Gilead’s patent application covering Oseltamavir compositions on the grounds of lack of inventive step, failure to comply with section 3(d) and failure to sufficiently disclose the invention claimed.
Since Gilead hasn’t patented this drug in all countries and has recently lost the Indian patent battle over “Tamiflu” just about a month back, these governments may turn to generic manufacturers for a cheaper priced alternative. And even if a patent exists , if Roche can’t meet the demands in terms of quantity and price some of these governments may decide to override the patent and grant compulsory licenses (treating it a case of national emergency) to enable cheaper alternatives.
It is interesting to note that the US does not have any compulsory licensing clauses within its patent regime that can be invoked. But there is a possible alternative that the situations can be worked into the ‘takings clause’ in 28 USC §1498 and perhaps the fifth amendment to the US constitution that contains ‘eminent domain’ principle. Under these principles, the government could use the patent without the permission of the patentee, subject only to payment of some reasonable compensation. The US had threatened to do something similar with Bayer’s patent during the Anthrax crisis.
But the bigger issue that was pointed out by Dr. Anatole Krattiger in a recent discussion with me is that “Back then, with Bayer’s Cipro, the US back-peddaled quickly so as not to undermine private patent rights. And now, most Western governments have stockpiled Tamiflu. But who will supply Tamiflu now to the low-income countries that have not had the currency reserves to stockpile Tamiflu?”
Further Reading:
Shamnad Basheer and Tahir Amin,Taming of the Flu: Working through the Tamiflu Patents in India , Journal of Intellectual Property Rights, Vol. 2, p. 113, March 2006
Whenever the term bioprospecting is mentioned, the country of Brazil is often cited. This is because the laws and regulations which have been created by Brazil are seen as extremely strict. In fact many people feel that instead of protecting the country against biopiracy, as Brazil undoubtedly seeks to, they are in fact reducing biodiversity research and slowing scientific advancement. The main reasons that the laws regarding biopiracy/bioprospecting were put into place is that the Brazilian government wanted to protect its indigenous people as well as its own financial interests in terms of seeing a product from its genetic and natural resources. The real questions are these: Is the level of restriction these laws impose justified in order to protect the indigenous peoples of Brazil? Or is the highly restrictive process put into place because the government is afraid of foregoing income?
At first, access to genetic resources and traditional knowledge was covered by the Provisional Measure 2.186-16 which was codified into law in 2001. These laws where fairly restrictive as far as the authorization for access to biodiversity was concerned, with all forms of access and research requiring the approval of the Brazilian government. However, that original provisional measure was also less restrictive in certain ways. For example it didn’t provide for by-products of genetic resources, and only covered pure genetic information.
Just last year Brazil passed a new bill which changed the way in which they approach the issue of bioprospecting/biopiracy. Unfortunately, I couldn’t examine the new bill myself because I couldn’t find a version of it that wasn’t in Portuguese, but I did find this article which had a good summary of the differences between Provisional Measure 2.186-16 and the new bill. The main differences between the two documents appears to be that the newer bill requires a much clearer paper trail to keep track of the use of genetic resources. For example patent applications now must have a corresponding “access license” for any genetic resource or by-product of genetic resources obtained in Brazil. Whereas before, even non-profit or humanitarian research efforts using the genetic resources of Brazil had to be sanctioned by the government, the new bill does not require Government approval for access and research that is designated as non-profit. I speculate that even though it appears that Brazil wants to tighten their law regarding who benefits from the use of its genetic resources, they seem to be moving towards allowing easier access for non-profit research. I think this because with easier access to resources for research dedicated to non-profit research, the greater the opportunity for scientific advancement. It appears that the Brazil thinks along the same lines.
Brazil has a large native population whose indigenous knowledge and resources the government is trying to protect. And rightly so. There is an incredible amount of attention focused on Brazil and the rain forests in our modern era. Celebrities are trying to save it as it may hold the next cure for cancer or even HIV/AIDS. Is this the reason that so many people are focused on protecting the peoples and rainforest? Why isn’t there a huge emphasis on indigenous knowledge and biodiversity protection in New Zealand or the Samoan Islands? Is Brazil constantly in the news because of the biodiversity-rich rain forest or is it because the indigenous peoples are really making themselves heard?
I feel that the issue of bioprospecting is something that we are going to be dealing with for at least as long as there are unexplored areas of the earth, while there is still flora and fauna that have yet to be discovered. The most important thing that we have to keep in mind though is that the modern patent system, which is part of a greater system of intellectual property, is based upon the protection of “new” inventions, or processes, as opposed to protecting knowledge which is communally held or has been in existence for some time. Many Tribes of the Brazilian rainforest have expressed anger at the bioprospectors who use their help and knowledge of the forest to find plants useful for research. Then often times the bioprospector turns a profit from their ventures, and give nothing back to the tribes, although increasingly various companies (such as Diversa) as well as academic groups (such as the International Cooperative Biodiversity Groups ) are working to changing this. The system of intellectual property was not made with the protection of indigenous knowledge in mind, since native peoples at that time were only a dream in the minds of novelists and scientific speculator.
Trying to create a system by which indigenous knowledge and resources can be protected is a challenge within the current patent system. Strategies such as the use of Access and Benefit Sharing programs are on the right track to creating a system by which indigenous knowledge and resources can be protected, yet accessed and used, but there is still a long way to go. Countries like Brazil may seem overzealous in some of their rules and regulations, but these laws are only being passed in order to protect their interests and the interest of their people. However these provisions cannot be made at the expense of the furtherance of science, which, in turn, can benefit the very people who shared their knowledge and resources at the first place.
The issue of royalty payment has been recently discussed in an article “Public-funded R&D Bill — Creating the ecosystem for innovation” in The Business Line in India by Jyothi Datta. Relevant issue of royalty payment under Bayh Dole type legislation as per the article states:
“The draft Bill seeks to give back to the scientist or inventor, 30 per cent of the revenue from commercialization of his or her research. About 10 per cent is marked to the public-funded institute’s IP Management Cell and the rest of the revenue is ploughed back into the institute. The IPM Cell will help the researcher patent innovative work, besides negotiating with commercial institutions when it is ready to strike.”
Indian Bayh Dole like bill titled “Public Funded R & D Protection of Intellectual Property Bill, 2008” which is before the Indian Parliament provides that inventors receive 30 percent of any royalties stemming from licensing.A similar legislation in South Africa that was recently enacted known as the ‘Intellectual Property Rights from Publicly Financed Research and Development Act’ that intends to enable and encourage recipients of government-funding to protect as Intellectual Property and license the results of their research in order to provide incentives for those recipients to work with industry players to commercialize research. Section 10 of the legislation provides that the creators and the inventors get a portion of the royalty stream generated from the licensing of the invention.
Jyothi Datta points out to the comments by Dr Prabuddha Ganguli, who was on an international expert team to help draft a similar legislation for South Africa:
“Parameters have also been outlined on the royalty that would be paid to the scientist/institute when the patented research gets commercialised, says the Bill’s architect. But IP expert Dr Prabuddha Ganguli, who was recently on an international expert team to help draft a similar legislation for South Africa, is uncomfortable with attempts to outline parameters on issues such as royalty payment. The legislation should be a broad guiding framework and specifics should be left to the rules that are made later taking into account in the changing environment. Though he has not seen the draft of the proposed Indian legislation, he points out that there are several texts and sub-texts to the issue — like whether the research has been fully or partially funded by the government; definition of national interest and if the government exercises its “march-in” rights on a critical product, does it pay for it, and so on.”
WIPO commissioned reports on Tech. Transfer of various Asian Countries in 2003 and they had a set of guidelines for developing models which were divided into 3 levels:
National Policy on Intellectual Property and University-Industry Technology Transfer.
University Policy on Intellectual Property and Technology Transfer.
Institutional Set-up and Practical Aspects for Technology Transfer from Universities to Industry
They include Income distribution (or royalty sharing) as a part of “University Policy on Intellectual Property and Technology Transfer” and not a part of the National Policy/ Law, that is also Dr. Gangully’s view on this issue as was published in an Indian Daily some time back.
In contrast Prof. Karen Hersey in her recent post “Royalty Sharing: A Matter of Law or a Matter of Policy” on the ITTI blog said that “setting a floor of 30% arguably accomplishes two things. first, it sends a message from government to research institutions receiving grants that the efforts of faculty and students who contribute to the process of innovation and commercialization is valued and second, it prevents grant recipients from, quite frankly, playing politics with rewards that their innovators justly earn.”
Although in an article published on SciDev.net, Shamnad Basheer (Ministry of HRD IP Chair Professor at WBNUJS, Kolkata) said that Indian IP Act would ensure that inventors receive at least 30 percent of any royalties stemming from licensing and the same is a laudable aspect of bill unlike the US Bayh-Dole Act, which leaves royalty-sharing policies to the academic institutions. Their remains to be dispute about the fact that having a mandatory provision for royalty sharing might not be the best of ideas and such specifics should be left to the rules that are made later taking into account in the changing environment or to the judgment of the University bodies, looking to their profits and the best way they can incentivize scientists and researchers to maximize the interest of the institutions.
Cogent reasons why a Patent per se is not a Monopoly
1.A monopoly is something in the public domain that the government takes from the public and gives to a person (like in the famous British case of the playing cards). An invention is something that did not exist before and was not in the public domain.It is something novel, that upon publication of the patent (application) enriches the public domain with the knowledge of the invention, and upon expiration of the patent, enters into the public domain, free to be used by anyone.A true antithesis!
2.In other words, “How can you have a monopoly on something that’s novel and, therefore, never existed in the market” (Don Banner).Indeed!
3.According to our patent legislation, a patent is “personal property”, like any other personal property (35 U.S.C. § 261).The term “monopoly is a nasty buzzword that appears absolutely nowhere in the patent statute.” (Chief Judge Markey)
4.According to the 1995 DOJ/FTC Antitrust Guidelines, patents are “comparable to any other form of property,” are “not presumed to create market power” and licensing patents is “generally pro-competitive.”This marks a 180-degree turn in their policy.
5.If anything, patents intensify competition; they can lead to many improvement patents as competitors are motivated to “invent around.”Patents are “potential antimonopoly agents.” (Judge Rich)
6.Even if a patent is misused and becomes temporarily unenforceable, it still is not a monopoly, unless there was market power. Misuse can be purged and when dissipated, enforceability is restored.
7.Patenting is a neutral act and a patent does not even grant a positive right to make, use and sell the patented invention but merely a negative right to prevent others from making, using and selling such an invention.
8.The patent right or property is too severely restricted in terms of duration and scope and beset by three dozens of reasons for invalidity and unenforceability to be considered a monopoly.
9.The Supreme Court also has dropped the old “monopoly” rhetoric, replacing it by “a recognition that the right to exclude in intellectual property is no different in principle from the right to exclude in physical property.”(Judge Easterbrook)
10.There are almost always alternatives available to the public — prior art alternatives, alternatives that are obvious and hence not patentable and alternatives provided by improvement inventions.
11.A patent is not a guarantee that the patentee will ever earn anything from the right to exclude others.
Because of the extremely negative connotation of the term “patent monopoly” that inventors and innovators are reprehensible monopolists rather than great public benefactors (with deprecatory effect also on patent law and patent lawyers), better terminology to use is: patent property, patent grant, patent right, exclusivity or simply patent.Also to be avoided as nonsensical: “artificial monopoly,” “desirable monopoly,” “government-sanctioned monopoly,” “legal monopoly,” “limited monopoly” or “temporary monopoly” or even “government-granted legal monopoly.”
Let’s stamp out “unthinking monopolophobia” (Chief Judge Markey) and” slander of patents” (Robert Sherwood).
A recent article details Ug99, a stem rust of wheat, one of the most significant threats to global food security at present. Ug99 is a new variety of wheat rust fungus that has potential to spread throughout the major wheat growing regions of the world. Currently it is making its way east from Kenya through Ethiopia and Yemen after damaging crops in Kenya and Ethiopia. Once the fungus attaches to the above-ground wheat plant 50-100% crop loss can occur resulting in a substantial financial hit for farmers as well as decreased global wheat supplies, which in turn leads to increased costs for the consumer. Additionally, famines could occur if supplies are reduced in particular regions such as north Africa, as well as west and central Asia.
First discovered in Uganda in 1999, Ug99 is likely to infect wheat fields to catastrophic proportions, especially in some developing countries where wheat is a staple crop. According to Rick Ward of Cornell University, wheat rust “will translate into widespread food insecurity and civil unrest.” Some fields in east Africa, Kenya particularly, have experienced up to 80% losses.
In a normal setting, scientists’ ability to counter widespread plant diseases including fungi could be achieved by use of pesticides, by traditional plant breeding, and by genetic engineering. Unfortunately, however, Ug99 is highly infectious and thus has the ability to spread quickly through the movement of seeds and by normal weather (primarily wind) and thus remains difficult to contain; the use of fungicides, besides having limited effectiveness, is too expensive for most developing countries; also, traditional breeding takes many years of crossing and selecting; and genetic engineering requires the availability of effective resistance genes and of effective biosafety regulations. But there is hope because plant resistances have been found to be somewhat effective against Ug99 and have already been successfully bred into certain wheat varieties for certain regions. These varieties are currently acceptable to farmers in some regions, but they are not resistant to all rust strains, and some are still susceptible to Ug99 under certain local climatic conditions.
Due to the relatively rapid pace at which the fungus is spreading throughout the world, short-term solutions must be implemented until the time when durable resistance genes can be successfully transferred to wheat and distributed to farmers. Long-term solutions are irrelevant if Ug99 spreads quicker than anticipated, as suggested by Dr. Norman Borlaug of the Borlaug Global Rust Initiative (“BGRI”). Unfortunately, once disease-resistance is bred into modern wheat varieties, it will take years to grow enough seed and subsequently distribute it to farmers in need. And Dr. Borlaug, winner of the Nobel Prize for his wheat breeding work since the late 1940s in Mexico that ultimately led to the Green Revolution, should know. It was Dr. Borlaug who was instrumental in raising alarm some 7-8 years ago, not least of all because his early success in wheat breeding focused on rust resistance. His work and that of many colleagues at CIMMYT and Indian and Pakistani breeders, among others, led to a 50 year period during which stem rust was a minor problem.
There appear to be very few short-term solutions to this problem despite scientists’ confidence that long-term solutions can be had. Whether rust-resistant seeds will arrive soon enough remains but a hope, but given the severity of Ug99 that prospect seems unlikely. In the short term, expensive fungicides are one option for farmers who can afford to purchase them, who are equipped to apply them safely, and who are farming in a relatively well developed area with well trained agricultural extension systems. Many farmers in developing countries, especially in the poorer areas which are on the likely Ug99 path are unlikely to be capable of purchasing and using the fungicides effectively, so funding agencies should consider allocating increased funds for this purpose; concurrently, agricultural chemical companies should consider more targeted tiered pricing of fungicides, thus significantly reducing the cost to lower income countries.
Although fungicides represent a mere temporary solution as part of a more comprehensive approach to a lasting problem, they have potential to increase marketable yields quickly thus increasing farmers’ incomes and keeping food supplies steady. If wheat farmers continue to experience low yields they will be less capable of turning a profit and sustaining their farms into the future thus rendering efforts to engineer rust-resistant seeds an increasingly futile effort if there will be fewer farms left to supply. Farmers experiencing severe crop damage would surely be willing to try fungicides if money were granted for its purchase in developing countries.
If fungicides can be provided to farmers in developing countries some level of education may be necessary. Farmers must be aware of the optimal times to spray upon consideration of the particular variety of wheat they grow. Optimal wheat yields can be achieved by ensuring fungicides are utilized early before Ug99 or other rusts have an opportunity to infiltrate farmers’ fields. Improper application of fungicides in the past has led to yield losses and health risks for farmers, so education is key. This can be accomplished by routine field inspections by qualified individuals and by ensuring farmers’ access to necessary information.
Of course fungicides are merely one component of a short-term solution to threats posed by wheat rust, but if funding agencies realize the seriousness of Ug99 they may be on board with allocating emergency funds for certain regions that have been hit hardest. Currently billions of fungus spores continue to blow east which threatens global food supplies as well as the livelihoods of wheat farmers. Something must be done now to prevent the aforementioned problems until successful Ug99-resistant wheat varieties can be deployed and marketed to farmers throughout the world.
BGRI and its partners are currently attempting to transfer resistance genes from rice to wheat, but this component of the project will take 10 years or more, even if government regulations for the field testing of genetically modified wheat (biosafety regulations) become more science-based and permissible. One presumed reason why the BGRI is not focusing on genetically modified wheat, which could lead to the faster development of Ug99 resistant wheat, is due to the tremendous regulatory roadblocks and resistance to adopt genetically modified crops in general and wheat in particular. Onerous biosafety regulations already increase the development cost of genetically modified crops by millions of dollars and delay the delivery of many crops, including that of Golden Rice by 5 years or more. More efficient, science-based regulations are therefore necessary to combat Ug99 as quickly as possible.
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