Integrating Intellectual Property Rights and Development Policy

[Russell McOrmond <russell@flora.ca>]

On Wed, 9 Apr 2003, Guillaume Ponce wrote:

> As an example, pharm patents are controversial in the way that they
> prevent poor countries from producing medecines for AIDS at a price
> that their people could afford.

  The Commission on Intellectual Property Rights
http://www.iprcommission.org/ wrote about this issue in their report,
suggesting that each country should enact patent policy that makes sense
in the context of their domestic economies.  I will quote the 
recommendations below.  Where I disagree is that these recommendations 
apply only to so-called 'developing' countries and not to already 
Industrialized nations.

  Requiring the right policy for the right situation is also critically
important when discussing patentable subject matter.  Independent economic
analysis needs to exist for each type of subject matter, not invalidly
assuming that all innovation is equivalent.


  In the case of Europeans they are just wanting the EPO to honor the
existing exceptions to patentable subject matter.  In the case of a
Canadian like myself, I am looking for new exceptions as we are in the
same situation as the United States of not having adequate legislative
direction.

  This is a field dominated by patent lawyers and other special interests
(such as patent consultants, including those who financially benefit from
"busting" low quality patents).  There are none so blind as those who 
would be financially hurt if they could see.


http://www.iprcommission.org/graphic/documents/final_report.htm
Chapter 6: Patent Reform

---cut---
Box 6.1 Summary of Recommendations Relating to the Patent System

Developing Countries
(These recommendations are considered relevant for the majority of
developing countries. For those developing countries seeking to promote
certain sectors of technology then a more selective approach may be
desirable.)


* Exclude totally from patentability diagnostic, therapeutic and surgical
methods for the treatment of humans and animals

* Exclude from patentability plants and animals and adopt a restrictive
definition of microorganisms

* Exclude from patentability computer programs and business methods

* Avoid patenting of new uses of known products

* Avoid using the patent system to protect plant varieties and where 
possible, genetic material

* Provide for international exhaustion of patent rights

* Provide an effective compulsory licensing system and adequate government 
use provisions

* Provide broadest possible exceptions to patent rights including adequate
research exemption exception and an explicit "Bolar exception"

* Apply strict standards of novelty, inventive step and industrial
application or utility (consider higher standards than currently applied
in developed countries)

* Make use of strict patentability and disclosure requirements to prevent
unduly broad claims in patent applications

* Provide a relatively low cost opposition or re-examination procedure

* Provide means to prevent the granting or enforcement of patents
comprising biological material or associated traditional knowledge
obtained in contravention of access legislation or the provisions of the
CBD

* Consider providing alternative forms of protection to encourage
sub-patentable type local innovation.

Developed and Developing Countries

* Apply an absolute standard of novelty such that any disclosure anywhere
in the world can be considered prior art

* Take greater account of traditional knowledge when examining patent 
applications

* Provide for the obligatory disclosure of information in the patent
application of the geographical source of biological materials from which
the invention is derived.

Least Developed Countries

* Delay providing protection for pharmaceutical products until at least
2016. Those who currently provide protection for such products should
seriously consider amending their legislation.

---
 Russell McOrmond, Internet Consultant: <http://www.flora.ca/>
 Any 'hardware assist' for communications, whether it be eye-glasses, 
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