By Wagdy Sawahel for Intellectual Property Watch
Biotechnology policymakers, business leaders, and academics need to adopt a new intellectual property strategy focussed on cooperation and collaboration, rather than the current counterproductive model that encourages patenting as much as possible, says the report of an international panel of experts.

Prepared by an international expert group on biotechnology, innovation and IP headed by Canada, the report aimed to develop a novel, data-intensive and collaborative IP model in biotechnology innovation capable of responding to developing countries’ needs in food, health and industry.

The international group was composed of representatives from industry, governments and universities from the developed and developing world, and is funded by the Canadian government and administered by Montreal-based McGill University. The report entitled “Toward a New Era of Intellectual Property: From Confrontation to Negotiation” was released on 9 September. Comprehensive data supporting the group’s report will be released on 14 October in Washington, DC.

New Era of Effective IP

Speaking to Intellectual Property Watch, Richard Gold, professor of intellectual property at McGill University and chair of the expert group, said the main finding is that “the current way that industry and universities use IP is not working to deliver the health, agricultural and energy innovations that we are looking for. We call this way of dealing with IP ‘Old IP.’”

“Our most important message is that governments, industry, universities, researchers and non-governmental organisations (NGOs) need to abandon the ways in which they have handled patents such as exclusive licensing, looking only for short-term financial returns and mutual blame between NGOs and industry,” he said. Instead, what is needed is a “New IP” system that focuses on “collaborative mechanisms” in biotechnology and allows for technology dissemination in all countries where it is needed.

Current IP Regime Counterproductive To Tech Transfer and Innovation?

Based on the outcomes of 7 years of case studies involving Australia, Brazil, Canada, the European Union, India, Japan, Kenya, and the United States, the report documented a number of systemic failures associated with biotech and IP regimes, leading to mistrust among its actors, stifling innovation, and preventing cutting-edge technologies from helping those who can most benefit.

Speaking at the release of the report, Maristela Basso of the Brazilian Institute of International Trade Law and Development said, “NGOs in Brazil help communities sue researchers and companies that use indigenous knowledge without consent, but no one is present to help communities change the legislation or enter into agreements with those same companies in advance, so that everyone can benefit.”

“This leaves behind a culture of mistrust,” Basso said. “The NGOs and local community leaders often distrust industry and are therefore reluctant to negotiate.” Basso added that researchers and industry “feel so overburdened by a maze of unworkable rules and procedures that they trust neither the government nor the local communities.”

The Innovation Partnership

To fill that gap, the report’s release coincides with the launch of The Innovation Partnership (TIP), an independent non-profit consultancy with experts in developed and developing countries specialising in the use and management of intellectual property and dedicated to working across “Old IP’s” former fiefdoms in order to build trust.

IP Adaptation Roadmap for Developing Countries

According to Gold, developing countries should stop implementing wholesale legislation from high-income countries, such as the US Bayh-Dole Act especially without other attributes of the US patent system that bring balance and power for the state to intervene when needed.

Gold added that “developing countries need to focus on building a scientific infrastructure by partnering with high-income universities to provide doctoral and post-doctoral students the opportunity to conduct their research at home as well as encouraging their universities to work with local industry and the international community to build partnerships through which innovation developed at home can be sold nationally, regionally and internationally.”

Gold urged developing countries to publicly support and participate in mechanisms to bring medicines to their citizens, such as UNITAID – an international drug purchase facility and patent pool to unblock patents so that needed fixed dose combination and paediatric antiretroviral medicines reach those suffering from HIV/AIDS.

Gold added that developing countries need to study and learn from the business models employed by developing country enterprises that have succeeded in developing and selling technology. They also need to ensure that they provide autonomy to their indigenous peoples to determine how they wish to share their knowledge without creating property rights in traditional knowledge that simply cause gridlock in having indigenous peoples work with researchers.”

Abdallah Daar, a member of the expert group and co-director of the McLaughlin-Rotman Centre Program on Life Sciences and Global Health, University Health Network, University of Toronto (Canada) told Intellectual Property Watch that “in order to benefit from creative use of IP, developing countries need to understand the bigger picture. IP is often misunderstood, even in developed countries.”

Daar cautioned that IP “is important and won’t go away,” and said that developing countries that have signed international agreements must abide by some minimum standards but there is a lot of room to innovate around IP use. But first they must develop “serious capacity” in IP and technology transfer in order to benefit from the application of science and technology to development.

“They must be clear what they want from IP regimes,” he said. “Depending on their level of development some may merely want to establish IP regimes to obtain greater access to products, others to build scientific research capacity, yet others to actually innovate and commercialise products in order to address health, agriculture and industrial needs, and in the process create wealth and reduce poverty.”

“There are times when developing countries will benefit from north-south collaborations, other times from south-south collaborations,” Daar said. “IP regimes should be structured accordingly.”

Elisa Henry, another member of the expert group that produced the report and executive director of Canada-based Centre for Intellectual Property Policy told Intellectual Property Watch that developing countries can put the recommendations of this report into action “By setting up their own innovation agenda that truly reflects their needs and conditions; by using their respective diasporas to push collaboration with research institutions from developed countries; by developing local business models that bring local innovation to those who need it while enabling foreign investments and commercialization abroad.”

Developing Countries Urged to Heed Report

Hassan Moawad Abdel Al, professor of biotechnology and former president of Alexandria, Egypt’s Mubarak City for Scientific Research and Technology Applications praised the report, telling Intellectual Property Watch “it is the time to correct the purpose of the IP regime from knowledge control for financial gains to a win-win system through knowledge sharing for promoting innovation.”

“Developing countries must take the report recommendations very seriously by transferring them into action plan within their national science, technology and innovation strategies instead of just giving it deaf ears,” Anwar Nasim, president of the Federation of Asian Biotech Associations and chair of Pakistan’s National Commission on Biotechnology, told Intellectual Property Watch.

But at least one free-market, developed-nation think tank (with US pharmaceutical industry funding) has publicly criticised the report. The Texas-based Institute for Policy Innovation, said the report is not truly international but rather the product of Canadian academics. However, the expert group included scientists from developing countries such as Argentina, India, Kenya, Rwanda and South Africa as well as scientists from other developed countries such as France, Japan and the United States. IPI also said, “In reality, it is not intellectual property, but rather regulatory constraints, taxes and tariffs, and non-science biases that pose the greater threat to dissemination of life-saving technologies needed to benefit developed and developing countries alike.”

William New contributed to this article.

Wagdy Sawahel may be reached at info@ip-watch.ch