Echoes Of Global Patent Wars At WIPO Annual General Assembly

Echoes of the struggles and advances in patent policy around the world were heard this week in the annual meeting of the member governments of the UN World Intellectual Property Organization. At stake could be no less than the future of societies everywhere.

The WIPO General Assemblies run from 20-29 September. The first two days were devoted to a High-Level Segment intended to attract minister-level participation, although it overlapped with the UN General Assembly in New York. This was the second year WIPO held the segment, and this year the theme was innovation.

A key issue at WIPO is how to make itself and intellectual property relevant to global problems such as public health, climate change or, through development, poverty. A debate appears to be rising over whether WIPO’s approach to these global issues will be aimed to most benefit rights holders – most of whom are in developed countries – or be more weighted toward the neediest, in developing countries. Fees for patent-related services account for the vast majority of WIPO’s revenue source.

At the Assemblies there have been undertones of old debates about the patent system, such as harmonisation of national patent laws, and concerns that the benefits of patents are not reaching all economies.

Many of these issues arose when the Assemblies discussed the report of the last meeting of the WIPO Standing Committee on the Law of Patents (SCP), which took place on 25-29 January. The issues discussed there included standards, exclusions from patentable subject matter and exceptions and limitations to the rights, client-attorney privilege, dissemination of patent information, technology transfer, and opposition systems.

These issues remain on the agenda for the next meeting of the SCP, from 11-15 October. Also likely on the agenda is a Brazilian proposal on exceptions and limitations, although it is not clear if it is written into the draft agenda on for the meeting, available here.

In the Assemblies, the European Union and other developed countries mentioned their hope to keep the possibility of patent harmonisation under discussion. This issue also resonates in the United States where a number of elected representatives and their constituents are trying to move a patent reform bill this autumn that would bring the US system slightly closer to its international counterparts.

Open Innovation

Industry strategies on patents and innovation were the topic of discussion at side events to the Assemblies, including one sponsored by the Coalition for Innovation, Employment and Development (CIED, supported by the US Chamber of Commerce) entitled Open Innovation. At that event, Konji Sebati, senior advisor on global issues at WIPO, opened the event with a description of the rise of open innovation over the past decade or so, and a statement of WIPO’s commitment to the area.

A new buzzword at WIPO seems to be “interfaces,” such as between intellectual property, innovation and global policy issues, which Sebati mentioned. Three areas in which she claimed WIPO has a “significant focus” are: the knowledge gap and digital divide; public health and access to medicines; and “innovative responses to climate change.”

She also said a main objective of WIPO is to respond to the call for innovation to better benefit developing countries, and in this vein, “the concepts of open innovation are becoming more and more popular.” Companies are focussed less on closed, in-house research and development, with “fierce” intellectual property protection, and more on external partners to fulfil aspects of innovation needs. This was precipitated in part by the increased mobility of skilled researchers. Companies can buy or licence processes or inventions from other companies, and can take unused internal inventions outside the company through licensing, joint ventures or spin-offs.

But, she said, “open innovation does not in any way oppose intellectual property,” but rather depends on it to allow trading of intellectual assets. In the case of public health, “IP is not enough in itself” to help developing and least developed countries. “They need open innovation and collaboration models and platforms, she said. One example of such platforms is a recent project between GlaxoSmithKline, Alnylam and BIO Ventures for Global Health., which pools compounds and technologies and industrial know-how for research into neglected diseases. Another is the UNITAID Patent Pool, which provides collective management for medicine patents with favourable licensing terms.

Developing Doubts

Some developing countries raised concern during the Assembly that WIPO is approaching global issues without a clear mandate from its members, who have not held discussions on these issues yet. Some developing country representatives have said they feel there are cases where patents can hinder innovation and development among non-rights holders.

Speaking on WIPO Director General Francis Gurry’s proposed strategic plan for 2010-2015, Indonesia said some of its fundamental concerns had not been taken into account in the draft plan, particularly related to norm-setting, copyright and global policy challenges.

“I believe WIPO’s contribution in finding [a] comprehensive solution to challenges such as climate change, food security and public health should not solely be carried out by advancing the objective of promoting the use of intellectual property, but also to take into account the needs of the developing countries with respect to IP and those global public policy issues,” Indonesia’s statement said. “As a specialised agency of the United Nations and member-driven organisation, WIPO has to adopt a more balanced approach and development-oriented [approach] in its strategic plan.”

The Development Agenda Group statement said the countries – which include Brazil, India, Egypt and more than a dozen others – have concerns about the treatment of norm-setting and WIPO’s role in global issues in the secretariat’s strategic plan. “We believe that WIPO’s role and engagement in ongoing negotiations in other forums on global challenges such as climate change, health, food security etcetera should be guided by the intergovernmental mandate provided by member states.”

The most doubt was raised by the Third World Network (TWN), a non-governmental body of developing countries [Editor’s Note: credited organisation corrected]. The TWN statement said there is a need for WIPO to bring credible evidence that patents are as positive for innovation as has been hyped in recent years. There is more evidence, it said, that “patents are undermining and compromising people’s right to health guaranteed under Article 12 of the International Covenant on Economic, Social and Cultural Rights.”

TWN pointed to a 2009 European Competition Commission report that found some pharmaceutical companies with strategies aimed at extending the “breadth and duration of their patent protection.” The report also found individual medicines are protected by hundreds of patents.

TWN also claimed the developed country-led IP enforcement agenda will harm developing country efforts at industrial development. In addition, it said developing countries face legal, institutional and policy hurdles to implementing the World Trade Organization Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) as well as use of flexibilities in TRIPS. The South Centre urged member states to establish an international commission on technology transfer, as requested in the last WIPO Committee on the Law of Patents, in order to study and document barriers.

“Instead of merely accepting the propaganda that patent is the only tool for inducing invention and innovation, WIPO needs to treat patent as one of the tools for stimulating technological invention,” the statement said.

Médicins Sans Frontières (Doctors without Borders) and Knowledge Ecology International also spoke on the impact of IP rights on access to medicines and public health, and focussed on WIPO’s role in the process.

[Updated] “We have been able to start and scale up treatment for people living with HIV/AIDS because of generic competition that led to lower prices for AIDS medicines,” MSF’s statement said. “This was possible because diverse national patent systems and practices exist.”

But, MSF said, “today we are looking with concern to the future when our patients will need access to new medicines, while the supply of affordable versions may not be available with the full implementation of the TRIPS agreement and continuous pressure on developing countries to limit health safeguards in domestic patent legislation.”

“We cannot accept a world in which the fruits of innovation can only be enjoyed by the wealthy. We believe that WIPO can and should play a more active role in addressing the access to medicines crisis,” MSF added. “As a UN agency, and in order to mainstream the development agenda, this requires the work of all of the Committees of WIPO, including those on enforcement, to ensure that there is a prior evidence-based analysis of the effect on public health and access to medicines of any new provisions proposed.”

Industry Opportunities

At the CIED event on open innovation, Wim Vanhaverbeke, a professor at Hasselt University in Belgium, described the workings of open innovation, with inflows and outflows of knowledge. He said he takes the private company point of view, not the public policy view. Vanhaverbeke also clarified that open innovation is different from other types of openness, like open source as it focuses on business models, aimed at creating and capturing value, to the benefit of all partners. In open innovation, partners also share the IP, he said.

Stéphane Tronchon, director for IP in Europe at Qualcomm, said the company has a “huge” patent portfolio, and depends on licensing. He cited the importance of standards in innovation, and said open source is a distribution model based on IP, but does not mean it is royalty-free. “Intellectual property rights is the currency of open innovation,” he said.

A representative of sanofi-aventis also hailed openness and partnerships, citing the company’s work with Drugs for Neglected Disease initiative (DNDi) to lower prices on needed drugs. “To think you have all the good ideas is just a silly thought,” he said, especially as companies are becoming more global. Local knowledge is being seen as offering a great advantage.

That is also the thinking of General Electric, said Thaddeus Burns, senior counsel for IP & trade. Under its “reverse innovation” approach, highlighted recently by senior GE management in a Harvard Business Review article entitled, “How GE Is Disrupting Itself,” the company is concentrating on research and development within developing countries, with results tailored for the developing country markets.

In the past, the company would find a price point for developing countries but were not able to offer the products really designed for the needs of those markets. Now, least-developed countries represent the fastest growth for GE’s products, he said, and offer an “infinite number of ways to exploit IP value.” Burns said the absence of IP rights would add uncertainty to the equation.

GE’s model also was the focus of discussion at the last meeting of the Global Health Dialogue, a small, closed group that assembles in Geneva periodically to discuss current public health topics. David Boyd, director of global public affairs and international community relations at GE Health, presented on successes of the new innovation strategy, telling the small gathering of officials from the World Health Organization, WIPO, industry and non-governmental groups that partnerships with the company are leading to cheaper, more suitable products in developing countries. The partnerships range from the Gates Foundation to local organisations. Boyd noted that the company’s efforts are not philanthropic but rather profit-driven, but that the results have been positive for all involved.