Encouraging The Use Of Patent Information… Through Research Competition?

By Luis Gil Abinader

[Versión en español]

Patent Information

Many developing countries lack enough human resources with the necessary skills to access patent information. Although patent documents are often unintelligible, strengthening the ability to search them in databases could help reduce information asymmetries in developing countries.

Knowing the patent landscape of a specific field decreases uncertainties and, if there is freedom to operate, encourages competition. These appear to be the motives of the Korean Intellectual Property Office (KIPO), which since 2009 has been promoting the use of patent information at the Committee on Development and Intellectual Property (CDIP) of the World Intellectual Property Organization (WIPO). A number of programs have been proposed in this regard, and some of them are already in their second phase of implementation.

One of those programs resulted in a partnership between the KIPO, WIPO, and the Industrial Property Office of the Dominican Republic (ONAPI). Together they have recently launched a research competition to reward proposals aimed at solving technological problems in the agricultural sector. As formally outlined the objective of the Appropriate Technology Competition is to stimulate the use of information contained in patent documents. To be eligible for the prizes of up to US$4500 dollars and a trip to the KIPO, the participants must establish a link between the patent documents they retrieved and the solutions they propose to agricultural problems.

Potential Conflict of Interest

However, nothing prevents those ideas from being later claimed in patent applications filed by the participants of the competition. In that case, ONAPI will also be in charge of evaluating the novelty, inventive step, and industrial applicability of the proposed solutions. That means that the same entity that is promoting and potentially funding the research ultimately will decide whether it is patentable. This represents a conflict of interest. Actually, ONAPI apparently foresaw this when they established a disclaimer in their website, which in English reads as follows: “The participation in the competition, or receiving a prize, does not represent the protection of the invention.”

The participation in the competition, or receiving a prize, does not represent the protection of the invention – ONAPI disclaimer

Even with that disclaimer, the fact is that patent examiners will face, implicitly or explicitly, institutional pressure if an application is filed as a result of the competition. They will likely lack incentives to reject a patent application related to what is, as ONAPI’s communication strategy shows, currently the most important project of the institution they work for.

Furthermore, granting more patents to Dominican nationals is admittedly one of the main institutional goals of the current ONAPI administration.

“I have an indicator to achieve,” ONAPI Director Sandy Lockward said in the same television interview in which she announced the launch of the Appropriate Technology Competition. “My goal is to double the number of Dominican patents in two years, which as of now is only a dozen.” That indicator she referred to is the National Strategy for Development, which unsoundly employs simple patent counts to measure the performance of the Dominican science and technology policies. Evidently, the Director of ONAPI considers that the institution she leads is partially accountable for the generation of those patents. Since a patent office cannot implement innovation projects on its own, the short-term institutional response that seems within reach is to increase the number of patentability decisions favouring Dominican nationals. This adds more pressure on patent examiners.

Systemic Risk

About half of the patent applications examined by ONAPI thus far have been denied. These rejections have been compatible with national and international laws, and should continue occurring as long as the filed patent applications are below the legal patentability threshold.

If those applications – most of which were filed by big pharmaceutical companies – had instead been granted, the costs of medicines consumed by Dominicans would had been unnecessarily higher. That is a luxury the country cannot afford. Since international intellectual property treaties impose non-discrimination rules, the patent applications filed by Dominicans that do not comply with the legal requirements should also be rejected. Indeed, this has been occurring regularly.

If, however, patent examiners chose to spuriously grant patents to Dominican nationals instead of placing themselves at odds with the goals and projects of the current administration, ONAPI will likely receive political pressure from big pharmaceutical companies that would demand the same flexible treatment for their applications.

KIPO and WIPO should continue promoting the use of patent information as a tool for reducing information asymmetries and encouraging competition. However, the implementation of this initiative should strengthen or at least be coherent with the primary mission of patent offices, which is to examine the merits of the applications they receive.

A research competition promoted and potentially funded by the patent office itself does not seems to be in that direction.

Luis Gil Abinader is a researcher at the Latin American Faculty for Social Science (FLACSO).