Tribute To An IP Community Influencer Brings Together IP Experts In Geneva

Inspiring, generous, humanist, nobody was short of praise and anecdotes at an event last week to celebrate the lifelong contribution of Pedro Roffe, well-known Geneva thinker and writer on intellectual property. A conference on the evolution of intellectual property, trade and development had been organised for the occasion, congregating many IP experts offering their perspective on the role of IP in fields, such as public health, innovation policy, and competition law.

The Global Debate on Intellectual Property, Trade and Development: Past, Present and Future – A Conference in Honour of Pedro Roffe took place on 15 June. The programme of the event is here.

Pedro Roffe gives a few emotional closing remarks

Susan Sell, professor at the School of Regulation and Global Governance, Australian National University, said the politics of intellectual property are embedded in much larger macro-economic trends. The question now is how to re-embed markets into society and social purpose, she said, after historical focus of economics went to employment to price stability.

She noted that in the intellectual property context, investor-state dispute settlements are rising, which take away the government’s ability to regulate in ways that allow the fulfilment of social purposes.

With the growing commodification of areas such as health, agriculture and education, there is a need to “re-embed” markets for social and public purposes, she said. That would need technology transfer, investment in human capital and education, commitments to public health and environment sustainability, according to Sell.

TRIPS as Floor or Ceiling

Antony Taubman, director of the Intellectual Property Division at the World Trade Organization, talked about the architectural elements of international IP policy.

The WTO Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) is described as one of the three pillars of the WTO, he said. According to the WTO, “the other two are trade in goods (the traditional domain of the GATT) and trade in services.”

The 18-year attempt to solve the issue of whether or not TRIPS should apply to non-violation complaints is an example and a reminder that there is a need to understand how those three pillars interact. Non-violation complaints refer to cases brought to the WTO Dispute Settlement Body when a member considers that another member’s actions have led to loss of expected benefits, even without violating a WTO agreement.

The TRIPS providing a “floor” means that it is meant for countries to build their domestic IP system, taking into account domestic needs, he said. Talking about a potential “ceiling” to TRIPS, he said there are reminders in TRIPS that IP can go too far, by becoming a barrier to legitimate trade. Taubman mentioned in particular Article 1.1 (Nature and Scope of obligations), which states that ” Members may, but shall not be obliged to, implement in their law more extensive protection than is required by this Agreement, provided that such protection does not contravene the provisions of this Agreement.”

Christoph Spennemann, legal officer and officer-in-charge at the IP Unit, United Nations Conference on Trade and Development (UNCTAD), said TRIPS only sets minimum standards and leaves room for countries to go both ways. It was to be expected that some countries would try to further develop TRIPS.

There is an increased awareness in developing countries about TRIPS flexibilities, Spennemann said, but there is still a “huge knowledge gap,” in particular in French-speaking African countries.

Competition Law against Pharma excess

Fred Abbott, Edward Ball Eminent Scholar and Professor of International Law at Florida State University College of Law, said IP is a policy instrument that can be used to accomplish defined objectives. “If we define the objectives of health policy in terms of universal health coverage, or more narrowly in terms of universal access to medicines, accompanied by patient-centric technological innovation, we may well conclude that patent policy and its governance are failing,” he said.

“Public health budgets throughout the world are strained beyond capacity, new medicines are priced to extract the largest possible payment from patients, investments are foregone where innovation will not yield significant profits, the industry is engaged in myriad abusive practices in connection with drug promotion, and there remain critical gaps in developing new treatments,” he explained in his comments.

Participants Keith Maskus, Jerome Reichman, Pedro Roffe, Susan Sell, Frederick Abbott, Antony Taubman (from left to right)

The patent system privatises the provision of medicines, and if there is nothing inherently wrong with private contracting to achieve public aims, this needs effective government regulation or control, he said. “And, here is where the present arrangements are failing.”

“The problem is capture of the regulatory state … by the regulated,” according to Abbott, adding that this problem is not limited to high income countries.

New financial and legal mechanisms for the development and distribution of new medicines are needed, he said, adding that the alternative would be to “dramatically reform the way the current system is regulated.”

If the current system is not reformed, he said, “rear-guard defences” against “private sector excess” should be used, such as the use of competition law, and investigations into pharmaceutical industry anticompetitive abusive practices.

Those investigations are gaining traction, he said, citing as an example the South African Competition Commission, which on 13 June announced the initiation of a major investigation into several major pharmaceutical companies with respect to excessive pricing of cancer treatments, among others.

IP, Investment Treaty and Evergreening

Carlos Correa, professor at the University of Buenos Aires, and special advisor on trade and intellectual property at the South Centre, talked about the interface between IP and investment law. In a bilateral investment treaty, IP is considered to be protected investment, he said. As an illustration, he mentioned the case opposing Eli Lilly and Canada.

Eli Lilly filed a Notice of Arbitration against the Government of Canada under the dispute settlement provisions of NAFTA Chapter 11 (investment chapter) in September 2013, according to the Canadian government website. Eli Lilly was disputing the fact that Canada invalidated two of its patents for Strattera and Zyprexa. Eli Lilly’s claim was denied in March 2017. Correa said it is a victory of Canada, but some concerns still remain in the decision (IPW, Public Health, 24 April 2017).

Correa said the Eli Lilly v. Canada case is an interesting example of evergreening of patents. Eli Lilly had filed patents covering 15 trillion compounds in the 1980s, including the compounds of the two invalidated molecules.

WIPO Governance Needs Reform

Carolyn Deere Birkbeck, senior researcher, Global Economic Governance Programme, Oxford University, focused on the issue of governance at the World Intellectual Property Organization.

She mentioned the growing size of the WIPO secretariat. In 1970, she said in her presentation, WIPO was a small inter-governmental agency, mostly involved in providing legal advice, technical guidance, and information to member states for negotiations and implementation of WIPO treaties.

In 2017, WIPO is a UN specialised agency, with a workforce of 1,400 and an annual budget of over CHF 700 million. Its core functions have expanded, with provision of services to fee-paying clients, capacity building, technical assistance and training for developing countries, public education, and research and statistics.

WIPO’s reach and relevance are growing, there are rising demands on WIPO and its governance system, and growing financing of the organisation by private actors through fees, she said. This financial weight could lead to undue influence on decision-making, she said.

Deere mentioned a 2014 UN Joint Inspection Unit report underlining a shift of power toward WIPO’s Programme and Budget Committee, limited space for substantive policy deliberations, and said the report recommended that WIPO governance framework be reviewed.

As elements for the future, she suggested that effective structure and processes be organised for setting strategic direction and oversight of the secretariat programme and budget; that the WIPO Development Agenda be mainstreamed with a focus on public policy priorities and public interest; and that financing be sustainable and transparent with established safeguards against capture.

Tech Transfer, Innovation Policy

Padmashree Gehl Sampath from UNCTAD commented on technology transfer in innovation and trade, and said the debate on tech transfer is psychologically linked to IP protection.

Hurdles to technology transfer include the lack of absorptive capacity and skilled labour of developing countries, she said, adding that incremental learning to research and development needs larger firms.

Dominique Foray, professor and chair at the Ecole Polytechnique Fédérale de Lausanne (EPFL), focused on the ways to stimulate entrepreneurship and inclusion at the same time.

He described four mechanisms: adoption policy, co-specialisation, social innovation, and IP and patent policy.

Adoption policy, he said, should focus more on innovation having a strong effect in productivity and inclusion, rather than only on “flashy” innovations, such as the newest technologies.

Co-specialisation refers to innovation policies, which can address both start-ups and the more traditional sector.

An additional IP-Watch story will cover more speakers from the one-day event.

Image Credits: William New, Catherine Saez