Year Ahead: Reforming Global IP Systems – Trends In A2K In 2010

Ensuring public access to knowledge while supporting intellectual property rights cuts across broad areas such as internet availability, public health, education and culture, climate change, and basic technical standards. And while the non-profit movement that has worked to encourage access is facing serious challenges this year, they are set to fight it out in the various fora related to essential drugs, books and academic journals, and software again in 2010.

There have been general acknowledgements that classical intellectual property rights protection has created problems with access to medicines. In addition, IP rights and technology transfer was debated at a high level at the climate conference in Copenhagen, and the difficult relationship between patents and standards in technology has been discussed at the World Intellectual Property Organization.

While the various non-governmental organisations that work for better access to IP-protected material have somewhat given up on their common platform of access to knowledge created at the United Nations-led Internet Government Forum, they are still in the fight.

Access to Medicine

For Knowledge Ecology International (KEI), one of the leading NGOs on these issues, the biggest concern in 2010 is creating an alternative incentive for research and development in drug development, being discussed at the World Health Organization. “We propose to the WHO to put aside quite a bit of the Global Fund to Fight AIDS, Tuberculosis and Malaria money to reward innovation and develop new drugs,” said KEI Director James Love. Another proposal is a reward system for diagnostics, he said.

It is not a new proposal, as KEI has lobbied for the idea for years. A 10 percent share of the Global Fund money should be channelled into the R&D for new AIDS drugs which will then be brought into the UNITAID patent pool to allow easy access for producers and drug developers. But Love is optimistic that after the start of the patent pool under drug-purchasing mechanism UNITAID following its December board decision, the award idea will get traction. In fact, he thinks it is the only way to keep up the treatment of HIV/AIDS patients in poor countries, given that the patent-protected second generation drugs are far too expensive for donor money. With the economic crisis this is even truer.

Members of the European Parliament have taken up the issue and established a new Working Group on Innovation, Access to Medicines and Poverty-Related Diseases. During a recent hearing, Scottish Member of Parliament David Martin questioned Commissioner-designate for Trade Karel de Gucht about the discrepancy “that we spend millions tackling HIV/AIDS and cancer in the developing world, yet at the same time our trade policy sometimes denies access to medicines to the same people through bilateral trade agreements and other trade agreements we enter into.”

According to KEI, with money available for HIV/AIDS treatment in poor countries, the number of patent applications in these countries has grown considerably, too.

De Gucht, while defending the necessity of “TRIPS-plus” provisions (those exceeding the World Trade Organization Agreement on Trade-Related Aspects of Intellectual Property Rights) for some aspects, confirmed that he intends to revisit EU Council regulation 1383/2003 “concerning customs action against goods suspected of infringing certain intellectual property rights and the measures to be taken against goods found to have infringed such rights.”

De Gucht acknowledged that “there certainly are some adjustments that should be made to avoid what had happened in the past year, for example in the Netherlands,” referring to European delays of generic drug shipments from India to Brazil. The decision for the free trade agreement between India and the EU is on the Parliament’s agenda in February.

The seizures of drugs off-patent in the countries of manufacture and of destination by the Dutch authorities during the last year have meanwhile led to a discussion among WTO experts, said Holger Hestermeyer of the Max Planck Institute for Comparative Public Law and International Law in Heidelberg. Hestermeyer said that “both Brazil and India had indicated they would request consultations with the EU concerning the seizures, the first step towards a possible WTO case.”

Bringing the Global Patent System Back on Track

Problems with the patent system have become obvious over recent years, acknowledged Rainer Osterwalder, spokesperson for the European Patent Office (EPO) in Munich. “The EPO is on the front line to bring the global system back on track and allow it to provide what it was originally created for,” he said.

The EPO itself will start to work with a reshuffled procedure for patent applications on 1 April. The changes made to the application process were merely technical in nature, for example setting strict timelines for answers from the applicants during the process or limiting the filing of secondary claims to an original application. There is no intention to change the requirements for the “inventive step” because the standards already had been high, he said.

The EPO also has partnered with the US Patent and Trademark Office (USPTO), the Korean Intellectual Property Office (KIPO), the Japan Patent Office (JPO), and the State Intellectual Property Office of China (SIPO) to allow for better cooperation. In their “IP5” project, the five offices have set up 10 projects to prepare for jointly used tools and procedures to minimise double work, said Osterwalder.

Working groups on the 10 projects have been started, with each patent office focused on two. The EPO working groups are seeking to solve questions of a “common documentation database” with resource material for patent examination and a “common approach for a hybrid classification” of patents. The USPTO is working, according to the project list, on a “common approach to sharing and documenting search strategies” and a “common search and examination support tools in a shared system,” and SIPO is working on a “common approach to sharing and documenting search strategies” and “common search and examination support tools.”

Implementation of the IP5 group – which was started in addition to the long-standing trilateral cooperation of USPTO, EPO and JPO – would, according to Osterwalder, bring a “rearrangement of the global patent system.” While the cooperation focuses on the shared tools and databases, in the long run it might also lead to similar results on patent examination, said Osterwalder. Reform of the WIPO Patent Cooperation Treaty (PCT) is a step the IP5 partners see as necessary, and the IP5 in a way might become a model about how cooperation could work better. Departing EPO President Alison Brimelow will discuss EPO plans at a speech in Melbourne in March, Osterwalder said.

Patents, Open Source and the Big Cases

For the Free Software Foundation Europe and the Foundation for a Free Information Infrastructure (FFII), 2010 looks like a decisive year given that several interesting decisions will be taken on the patentabilty of software, business processes and conventional seeds. Four questions about computer implemented inventions and their patenting have been referred by Brimelow to the EPO Enlarged Board of Appeal and a decision can be expected soon, even if the referral itself is rejected.

Meanwhile, a decision is expected on the so-called broccoli case involving an effort to patent non-genetically modified plants. The public hearing is set together with a similar case on tomatoes for 20-21 July. FFII has filed amicus curiae briefs on the referral issue, and another one on the court case Bilski v. Kappos which is pending before the US Supreme Court.

The Bilski case is considered by FFII and many organisations of the open source software movement as “the single most important decision worldwide on the issue of patents on business methods, software and algorithms since the [2007] rejection of the Software Patents Directive by the European Parliament.”

Bernard Bilski’s patent application covers a process “of initialising a series of sales transactions between brokers and sellers based on a (fixed) historical price rate, identifying sellers and initialising a series of sales between brokers and sellers in order to balance out the risks of sellers and buyers,” FFII summarised in its documentation. Already now, according to critics of software patents, there are far too many of these patents granted by the EPO and the USPTO.

Bilski’s patent application had been rejected by the USPTO and the USPTO decision has been supported by the courts so far. Now the two sides – the open source software organisations on one side and pro-patent lawyers on the other – are hoping that their arguments will be victorious. The decision is expected in spring.

Open Standards – Model for A2K and Technology Transfer

There seems to be nobody in the world who can avoid climate change on his political agenda, so patent people and A2K people, too, talk climate change. Heavily discussed during the Climate Change Conference in Copenhagen, IP for climate change technology and finding the best way to allow quick technology transfers for this urgently needed technology has also reached the EPO.

According to spokesman Osterwalder, the EPO currently is preparing the release of a joint study with the United Nations Environment Program (UNEP) and the International Centre for Trade and Sustainable Development (ICTSD) on the “role of patents in the development and transfer of environmentally sound technologies”, in particular in the field of energy generation.

The raw data have been collected by the EPO from its databases, said Osterwalder, now the analysis is underway to understand what is out there and whether concentration has taken place or whether there have been “Microsoft- or Apple-effects,” leading to a monopoly situation. “We did not see the latter,” said Osterwalder, but North-South relations have been negatively impacted, he added. In addition to a look at patenting numbers, the EPO also undertook a survey on licensing practices and received responses from 150 companies and institutes (out of 600 addressed worldwide). The study is expected to be finalised in May or June.

The free and open source software model might be a better alternative to patenting and then “repairing” possible barriers to technology transfers, said Karsten Gerloff, president of the Free Software Foundation Europe. It might be possible to transfer this model to other technology areas like climate technology, he said. In any case, information technology related climate technology would gain through free and open source software.

The FSFE, according to Gerloff, will follow closely the work by the EU Commission on the European Interoperability Framework (EIF), which consists of a set of interoperability guideline documents for European Public Services. While the first draft resulting from consultations in 2008 contained solid references to open standards and open source software, according to the FSFE, these had vanished from a second draft leaked last September. Six member states filed objections against this second EIF draft, according to the FSFE.

Ignoring open standards and open source software has a series of disadvantages, according to the free and open source software organisations, from anti-competitive effects against smaller software companies to proprietary formats for public content.

A second focus of the FSFE’s work in 2010 is the relationship between standards and patents. “In our view, patents that are part of standards have to be licensed royalty free,” said Gerloff. While standardisation bodies like the World Wide Web Consortium or the Internet Engineering Task Force this worked well, in other organisations like the International Standards Organisation, reform is necessary, he said. “There is a lot of work to do.”

Financial Crisis in A2K Movement

The various A2K players all think there is a lot of work to do, yet funding has thinned out considerably over the last two years. In the US, several big foundations stopped their programs on A2K-related work, reported Love.

The dynamic coalition on A2K at the IGF was possibly one victim, with A2K players redirecting their attention to the fora they thought they would gain the most for their cause. Love, when asked his greatest concern for 2010, did not point as many others did to the much-debated Anti-Counterfeiting Trade Agreement, but said he was most afraid about the effects of the Supreme Court’s decision that corporate funding of independent political broadcasts in US government elections should be unlimited. “It is a big threat for democracy,” he said.

[Editor’s note: many of these issues are addressed at the A2K4 Conference at Yale Law School on 12-13 February, information here.]