Developing countries are not taking advantage of discoveries made by their scientists and researchers because they lack an appropriate intellectual property infrastructure and expertise, according to a long-time United States proponent of IP rights speaking in Geneva last week. He called for development funds to be redirected to address these shortcomings rather than only supporting IP enforcement initiatives.
There is a great asymmetry in the global patent system, with the top five intellectual property offices accounting for over 70 percent of the world’s applications, said Bruce Lehman, chairman and president of the International Intellectual Property Institute (IIPI) in Washington, DC. That is a direct reflection of the problem of “brain drain” and the need for more IP protection, he argued, because talented researchers tend to move to countries where their discoveries can be protected.
Lehman was [corrected] a member of the Policy Advisory Commission to the Director General of the World Intellectual Property Organization, and former assistant secretary of Commerce and United States commissioner of patents and trademarks. Lehman spoke at a side event to the WIPO Committee on Development and Intellectual Property (CDIP), which took place from 2-6 May.
IIPI has launched a project with the US Patent and Trademark Office on technology transfer in the Philippines. According to non-profit Knowledge Ecology International, IIPI has received substantial funding from the USPTO.
In 2008, he said, the countries where most patents were filed were the US, Japan, China, Korea, the European Union, Germany, Canada, and Russia, according to the 2010 WIPO indicators. In most of those countries, the majority of patents were filed by residents of those countries. However, he showed that in select middle income countries, such as Chile, Malaysia, Peru, Egypt, and Pakistan, the majority of patents were filed by non-residents.
In the Philippines, most patent applications came from non-residents, he said. In the run of a project called “Innovation Opportunities,” undertaken by IIPI and the USPTO, legal specialists looked at nine Philippine research institutions. The project aimed to “promote job creation and wealth in the Philippines by helping the country turn its science and technology research into patented inventions.”
The specialists found that over the past 10 years, about 1,000 documents were published by those nine research institutions. After reviewing them, they assessed that about 27 percent of those publications contained potentially patentable subject matter, representing 27 percent missed opportunities, Lehman said.
Partners in the project are the USPTO, the Intellectual Property Office of the Philippines, and the Public Interest Intellectual Property Advisors, a non-profit organisation providing pro bono IP legal counsel to governments, businesses, indigenous peoples, and public interest organisations in developing countries, according to their website.
Documents were mainly published in the medical, agricultural, and chemical sectors. The project found that from 2000 to 2010, annual research publications increased by 250 percent in the Philippines, but patent filings by Philippines institutions did not increase much, Lehman said.
A reason the Philippines was chosen for this project, he said, was that in 2010, the Philippines Congress passed a technology transfer act, modelled after the US Bayh-Dole Act. This legislation allows US universities to patent and exploit publicly funded research.
Is it important to monetise inventions, he said, citing the US$ 250 million patent revenue of the University of California. However, the Philippines lacks IP infrastructure and IIPI is working with the Philippines Patent Office to that effect.
The effort to capture the value of research has to be four-fold, he said. The first step is to work with Philippines inventors, as they “are at the core of patenting.” Part of this first step is to educate inventors about the patent system. Researchers should perceive the incentives and be able to identify what can be patented, he said.
The second step is invention disclosure, and there must be a mechanism for identifying patentable inventions, with specific protocols, such as a committee and a system of peer review. Next, a filing strategy must be established to know where to file patents, whether locally or if markets justify it, abroad.
The last step is to define a strategy to monetise the patent, through the creation of spinoff enterprises, or licensing to large companies, always thinking about enforcement, he said.
According to Lehman, the damper is that just a small number of patented discoveries may ever be commercialised. For example, only seven percent of US patents are commercialised.
Also, a degree of sophistication is required, he said. The US patent system is very sophisticated and patenting is a very complex strategy, he said. There is no infrastructure in developing countries to support a robust patent system and international organisations such as WIPO should be addressing the problem, he said.
WIPO to Engage Wealthy Countries’ Help
To a question on how WIPO should participate in the solution, Lehman said WIPO is a wealthy organisation compared with other international agencies, because of the fees it collects through the Patent Cooperation Treaty, or the Madrid system for the international registration of marks. But this represents a relatively small amount compared to the task at hand.
However, WIPO has a leadership role in the global community, and a leadership role with member states, he said. WIPO can play a role in helping to fashion the development policy of wealthy countries that have development money to spend. For example, he said, the US Agency for International Development (USAID) has a US$ 13 billion budget, and none of it goes to this area, he said, or a very small amount.
Any expenditures tend to go entirely to enforcement of IP, “which contributes to the political tensions that we see here in Geneva,” he said, “as opposed to something positive, which is to help countries really address this fundamental development problem, which perpetuates under-development, and perpetuates brain drain.”
Silicon Valley – California’s high-tech region – is filled with people either on visas or naturalised US citizens who have come from other parts of the world where they did not have the infrastructure to support and monetise their creativity, he said.
Traditional Knowledge Doubts
A participant asked about the United States’ seeming hesitancy to support the patenting of traditional knowledge in the context of the WIPO Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore, which 18th session being held this week, from 9-13 May. This appeared to the questioner contrary to the US promotion of patents in developing countries. Opponents of TK patenting, such as indigenous people, have argued that patents relatively short 20-year lifespan would be inappropriate for knowledge that can be hundreds of years old.
Lehman said that he would not speak on behalf of the US government but from a technical point of view, traditional knowledge and IP protection were contradictory concepts, as traditional knowledge was inherently in the public domain.
“There is however a direct relationship” between creation and traditional knowledge, he said, as creation “almost inevitably arises out of the traditional knowledge base of a culture.” The issue is that every country is sovereign and can control what happens in its own jurisdiction, he said. Some countries have, for example, established policies that regulate bioprospecting.
Multinational companies are soulless, he said, with no other obligations than to their shareholders, they are not charities, but they are rational and sophisticated. Developing countries need a degree of sophistication that will allow them to draw mutually beneficial agreements with specific conditions for exploitation that will lead to win-win situations, he added.