Study Highlights Needed Improvements For IP And Technology Transfer

By William New
A high-profile researcher in the United States this week presented analysis showing that work needs to be done to improve flows of technology transfer to developing countries, and is related to intellectual property rights.

The author, Professor John Barton, emeritus of Stanford University Law School, presented the report at a 21 February side event of this week’s World Intellectual Property Organization (WIPO) meeting of the Provisional Committee on Proposals Related to a WIPO Development Agenda. The report is titled, New Trends in Technology Transfer: Implications for national and international policy, and was published by the International Centre for Trade and Sustainable Development (ICTSD).

Barton also chaired the United Kingdom Commission on Intellectual Property Rights that issued a high-impact report several years ago.

There have been two key changes in global policy on technology transfer since the 1970s, when the issue first really gained policymakers attention, Barton said. Developing countries now are more technologically sophisticated, and the world is more globalised, with production occurring across borders more frequently. A multinational company now typically invests in a developing country as a basis for export to a global market or global production process, he said.

Barton focused his study on two sources of funding for technology transfer, the public and private sectors. In the United States, the majority of research is funded by industry, while in many developing countries, the public sector accounts for a larger portion, perhaps a majority.

The primary means of technology transfer to developing nations is probably through commercial transfer from developed country licensing or foreign direct investment, he said.

In the area of publicly developed technology, Barton identified a number of points that he said could be a basis for negotiations, such as: increasing government support for medical research of importance to developing nations, including covering distribution costs; creating a global research inventory by sector to identify areas where more public-sector research investment is needed; clarifying patent law to expand research exemptions.

Other suggestions are to minimise the negative impact of patents on research (which he said should be addressed by WIPO); a treaty on access to knowledge and technology; and opening access to technology held by global agricultural biotechnology firms.

Barton said that countries around the world appear to be copying the US Bayh-Dole Act, under which US universities can patent technologies they develop and license them. “I’m not sure that’s a good idea,” he said, as it may not be appropriate for all economies.

For privately developed technology, Barton suggested negotiations could consider: procurement policies to ensure they are sufficiently open to developing countries; international arrangements guaranteeing that trade secret law not infringe employees’ right to change jobs or firms to reverse-engineer products; possible renegotiation of technology-related provisions in the WTO antidumping and subsidy rules; and antitrust issues.

Barton also proposed the development of a mechanism to discourage bilateral agreements that change the balance struck in TRIPS, with the possible starting point a required review or impact statement, such as WTO review mechanisms. New agreements include longer extensions of data exclusivity for patented pharmaceuticals and higher restrictions on use of copyrighted material.

For a short-term “Geneva agenda,” Barton proposed tackling patent law reform at WIPO and mechanisms for evaluating the impact of TRIPS-plus bilateral agreements.

WIPO is addressing competition issues during the 19-23 February meeting on a WIPO Development Agenda. A South African official in the negotiation said, “Most of the time [technical assistance] it is only enforcement of intellectual property that is emphasised, not transfer of technology as promised in the TRIPS agreement.”

Barton described ways in which patent monopolies can be misused, such as through extension of the monopoly beyond the rightfully protected technology. For instance, he said a dominant technology company made a widespread product that could only use the company’s batteries. He said the use of patent pools might merit further consideration for battling antitrust issues.

Barton said there is a rapid rise in investment in research in Asia, but that it is still small compared with the United States and Europe. He also noted that education levels and human resources are rising in developing countries, but problems remain such as lack of funding for advanced levels, failure to link education to the private sector, visa restrictions for students and scientists, and the continuing “brain drain” of top talent to other countries.

William New may be reached at wnew@ip-watch.ch.