The World Intellectual Property Day is observed annually on April 26. As we prepare to commemorate this day, it’s a good time to reflect on what the philosophy of the patent system was when it originated and what it has morphed into today. Patents were the first form of intellectual property rights (IPR) to be granted and codified formally, now there are many other forms of IPR.
Granting a patent to a product’s inventor was to benefit society. The way to do this was to give an advantage for a limited period to the inventor so that innovation was supported. If innovation was encouraged, society at large would benefit as innovations would bring in new things and new ways of doing things. This would avoid stagnation and lead to fresh growth. The patent system granted an exclusive marketing right, usually for 20 years, so the innovator could make money by selling his/her product or process without any competition. This meant a reasonably good return on investments. The financial gain was the incentive to continue innovation.
However, it cannot be in the interest of any society to grant a monopoly to a single individual or agency, to benefit just one person at the cost of everybody else. The patent system allowed exclusive financial gain, but did not allow an exclusive forever monopoly. The patent would be valid for 20 years, after which the patented information could be used by anyone. Public interest clauses were included to prevent “forever benefits” to the innovator without sharing anything with the public.
The first safeguard was transparency. Under patent rules, the moment you filed for a patent, you had to make your invention public in a way that anyone versed in that domain could replicate it. You had to declare the exact way you invented that product, sharing the “knowhow” of how that product was created. Thus, the new technology was transferred to the public and was available for use after the expiry of the patent period. This feature has often been subverted by latter-day patent applicants, chiefly companies. The declaration of the invention is kept deliberately obtuse, missing a few key steps so that it cannot be replicated effectively.
An important public interest feature of the patent system was “utility”. This meant the patented product had to be useful for the public. An innovation,, however creative and novel, could not get a patent if it did not have demonstrable utility. This ensured that society benefited from the grant of the patent.
Another essential step was the feature of “compulsory licensing”. This is a clause in the patent system that allows governments to intervene when a monopoly turns hostile to public interest and becomes a disadvantage to society at large. For example, in the case of a patented medicine, if the pharma company that holds the patent is not providing that medicine in the quantities required or is pricing it too high, and therefore putting it out of the reach of ordinary people, then the government can intervene. Under the “compulsory licensing” clause, the government can grant a license to another company to produce the patented medicine and give compensation to the original patent holder. In this way the welfare of society was given primacy and the patent holder was not allowed to exercise its monopoly to the detriment of citizens.
A third important feature of the patent system which was followed in earlier times is “working the patent”. This means if you have been granted a patent right in a particular country, you have to manufacture that product in that country. You cannot just import it and exercise your monopoly in the market, giving nothing in return. So, why was it important to work the patent? Producing the product in the country where you were the patent holder made sure that there was both skill building and diffusion of technology in lieu of granting exclusive marketing rights. This feature balanced both interests and society didn’t lose out.
Unfortunately, the patent system is being slowly subverted, not to balance societal welfare with (limited) exclusive marketing, but to ensure benefits in favour of monopolies, the corporate sector being a significant holder of patents. Governments seem to have allowed “working the patent” to be disbanded to quite a large extent. Patent holders increasingly import the products from their home countries, and just exploit the local market, hence there is neither technology diffusion or skill building. Compulsory licensing clauses are being fought tooth and nail by the corporate sector and becoming difficult to implement.
Another challenge to a balanced patent system is the attempt to “evergreen” a patent and extend its life beyond 20 years. In this case, the company makes small, usually trivial changes in the process or the product, without substantially altering the properties of the original product. It then claims innovation of a new product and applies for a fresh patent on this product, so that it can extend the monopoly of 20 years in the market for another 20 years. Essentially, the core product remains the same, into which no new R&D has been invested, no new properties have been added and society does not get any new benefits from this tweaked product. This “evergreening” of patents is a trick that the corporate sector has developed to line its coffers. Some governments are able to resist this dishonest move, and some are not.
So, there you have it. The original patent system that started out as a system to benefit society and promote its betterment has now turned into a tool of exploitation at the hands of the corporate sector, aided by pliant, and dare I say, some corrupt administrators.
Dr Suman Sahai is a scientist trained in genetics and the founder-chairperson of the Gene Campaign, a research and policy organisation working on food and livelihoods
Disclaimer : This story is auto aggregated by a computer programme and has not been created or edited by DOWNTHENEWS. Publisher: deccanchronicle.com
