items to the fullest extent possible, in order to
minimise their payments to wealthy countries for
innovation and creative work that already exists.
At the outset, it must be realised that the TRIPS agreement, despite creating an upward harmonisation of global intellectual property rights has inbuilt flexibilities that continue to be seriously under-utilised. For example, developing countries should use compulsory licensing of drugs and other patent protected items to the fullest extent possible, in order to minimise their payments to wealthy countries for innovation and creative work that already exists. It should also be remembered that developed countries have used compulsory licensing extensively in the past. The US has used them in the context of health emergencies (most notably they threatened to do so during the Anthrax scare of the early 2000s) and in some situations, are ways to undertake anti-trust enforcements as well as ways to break deadlocks between firms that served to weaken national security. Canada too has notably used compulsory licensing to take care of health needs. The best evidence (Scherer 1998) suggests further that compulsory licensing has no effect on the subsequent propensity to innovate for the firms whose products have been appropriated.
Similarly, to the extent possible the Bolar exception and similar exceptions should be utilised more extensively (China and Brazil for example have codified the Bolar exception in their patent laws).
It is in the interest of developing countries to resist any IP encroachment into areas that are not part of the TRIPS agreement (A corollary to this is that attempts to adopt TRIPS plus provisions through trade agreements should be resisted. These attempts often take the form of limiting trade with countries that adopt the flexibilities that exist in TRIPS or to add provisions that would limit the flexibilities in TRIPS (for example by promoting data exclusivity). This is of course a difficult task. As Deere (2008) notes, there are a strong set of factors weighing against these. First, there are economic pressures exerted by the USTR, including the threat of sanctions or other diplomatic lobbying that moves the system towards more rather than less IP protection. Indeed, this was more or less explicitly stated by the US Trade Representative who divided the world into won’t do and ‘can do’ countries, on the basis of their willingness to move towards the US position.
6.1 Use existing flexibilities in the
current regime
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“As WTO members ponder the future, the US will not wait: we will move towards free trade with can-do countries” (Zoellick 2003).
Second, the technical assistance provided by WIPO in matters of interpretation of flexibilities have been relatively one-sided and in the interests of developed countries. As a result, resisting TRIPS plus agreements and trying to use the flexibilities provided by TRIPS is likely to be best attempted by influential and large countries such as Brazil, India or China for whom reciprocal threats are less intense. In addition, developing countries could benefit from access to shared expertise on maximising the legal flexibilities allowed under TRIPS.
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6.2 Use existing national patent laws
to prevent weak patents/ maximise
opportunity to contest patents.
As noted earlier, developing countries are given the ability to enforce their TRIPS obligations through their own patent offices. Developing countries therefore have the legal right to enforce high standards for patentability and must only act so as to not discriminate between domestic and foreign firms in the application of those laws. In several cases, these laws are reasonably stringent and if properly administered, may prevent weaker patents from being accepted. For example, laws preventing ‘evergreening’ of an existing patent or minor advances are particularly helpful. A simple example of the ways that domestic law can serve to limit excessive IP enclosure is given by the case of India’s patent system. In 2005, in spite of severe pressure from the multinational pharmaceutical corporations, India’s new Patent Act allowed for pre-grant opposition, broadened its scope and also allowed for a post grant opposition, as well as limited ever-greening. Furthermore, non-obviousness standards were kept high. That combined with patent laws that served to limit IP claims on things like naturally occurring substances created the space for opposition to weak patents. That noted, just enforcing the existing patent laws effectively is not enough to guarantee that there will be no weak patents. It is imperative that developing countries keep a reasonable list of ‘innovations’ that cannot be patented- for example, genes, molecules or business processes. The history of patents in the US and other developed economies suggest that these lacunae are often misused to the detriment of social development.72
As we argued in section 4, patent opposition has a public goods characteristic, and in the absence of serious monetary rewards that exceed the cost of challenge by several multiples, will typically be underprovided. This suggests the case for arrangements that make it easier to question the validity of patents and allow for an easy evaluation. In this regard, the European Patent Office’s procedures in the event of a patent challenge seem a very attractive one. Rather than undertaking a full process of litigation, a patent challenge is sent before an appellate board of the patent office, which can consider the evidence and rule on the validity of the patent (Henry and Stiglitz 2010). This ‘second round’ evaluation works so as to elicit information on the reason for opposition and allows for a swifter resolution, which is important when the patent has been granted without due diligence.