UNDER SIEGE-First impressions of the Report of the Commission on Intellectual
2002, the Commission on Intellectual Property Rights (CIPR), a group
established by the UK Secretary of State for International Development,
published its Report entitled 'Integrating Intellectual Property Rights
and Development Policy'. This Report is the work of a team of enthusiasts
in the field of legal policy, backed by the able investigators and
secretariat of the UK Department for International Development (DFID),
and it covers studies undertaken over 16 months involving public and
private sectors in both developed and developing countries.
appraisal of this Report would require detailed examination of the
many proposals for IPR reform contained in it, as well as the opinions
cited in its voluminous Reference Lists. It is nevertheless possible
to express reservations and criticisms that will immediately strike
those who work in the field of IPR procurement day to day and whose
possible contributions to this study may not have been assiduously
sought in its preparation. The following observations relate primarily
to matters of relevance to IPR for pharmaceutical and agrobiotechnological
inventions. Copyright and software issues are left for comment by
specialists in these fields. These observations are related to specific
Chapters of the Report identified by their titles as given therein.
AND OVERVIEW CHAPTER
had set itself toward the realisation of targets, identified in the
The Millenium Development Goals, to reduce world poverty, hunger,
and to improve health, and it took as its task "to consider whether
and how intellectual property rights (IPRs) could play a role in helping
the world to meet these targets-- in particular by reducing poverty,
helping to combat disease, improving the health of mothers and children,
enhancing access to education and contributing to sustainable development"
and also "to consider whether and how they (IPRs) present obstacles
to meeting those targets and, if so, how those obstacles can be removed".
In approaching a task of such monumental proportions, CIPR has sought
to resolve issues of IPR laws which have been the subject of wide
controversy over recent decades.
to the Report states an expectation that it may not prove comfortable
reading for those concerned with IP and this is not surprising in
view of the conclusions it reaches. The Foreword also claims that
a characteristic of the present era is one of blind adherence to dogma.
This remarkable statement will come as a great surprise to a good
many people whose perception of reality is quite the reverse, for
in today's world no institution seems protected from criticism and
no values inherited from the past are exempted from challenge. While
institutions cannot claim privilege in this respect they can at least
insist that they should not be criticised for failing to yield results
that they have not been instituted to provide. Thus the notion permeating
this report, namely, that IPR systems are to be judged by some direct
impact they are assumed to be capable of having on the poor and needy
of this world, clearly overlooks the primary purposes for which such
systems have been invented and which are not themselves direct and
immediate philanthropic goals. If this fundamental premise on which
the entire Report seems to be founded is flawed, the whole Report
may be suspect.
recognises at the outset that the justification of IPR systems as
commonly asserted in the developed countries, namely, that the availability
of legal protection systems stimulates invention and technological
development, will not do for countries in which "the necessary
human and technical capacity may be absent". Indeed, such systems
may only benefit foreign countries which already enjoy these capacities.
This cannot be denied. These more fortunate countries have
undoubtedly benefited from the "unprecedented increase in the
level, scope, territorial extent and role of IP right protection"
in recent decades. In order to discourage the adoption of similarly
strong and generous IP protection in the developing countries the
Report points to criticisms of current IP laws that have been made
by some commentators in the developed countries and it seems to assume
that these criticisms are justified, from which follows the recommendation
that developing countries should not "get it wrong" by following
these trends themselves.
point in the Report, therefore, the reader will already be in no doubt
that the authors favour a return to, and consolidation of, the relatively
weak IPR systems that prevailed in many developing countries before
the completion of the Uruguay round of GATT which resulted in the
formation of the World Trade Organisation and the Agreement on Trade-Related
Aspects of Intellectual Property Rights (TRIPS).
dealing with the substantive Chapters of the Report, it is possible
to make the following critical comments on its opening salvos.
presumably common ground on all sides of this debate that the enormous
disparity of wealth, health, and opportunity as between developed
and developing countries stands as a constant challenge to the consciences
of the well-off. But the impelling need to address this centuries-old
problem should not overlook the inconvenient fact that it admits of
no facile solution and that any solution is inevitably going to be
multifactorial. While IPRs, and the ways in which holders of such
legal rights choose to exploit them, cannot escape some share of relevance
to this problem, we should not be tempted to look for scapegoats to
be emasculated or sacrificed in the vague hope that some benefit will
thereby inevitably accrue to those in need.
IPR is a generic term embracing a diverse group of legal rights designed
to protect the outcome of innovative thought and action which will
ultimately yield a benefit of an economic or cultural kind in relation
to human needs or wants of various kinds. Ultimately is the key word
in this context since IPR will not in and of itself produce any impact
whatsoever. A patent for an invention, however brilliant, lies fallow
unless and until use is made of it. In offering the possibility of
legal protection, therefore, the patent system has a relatively passive
role in relation to the impact of new technology on any particular
country since this must depend solely upon the use made of it by those
who own the patent or those who seek to acquire a permissive right
under the patent to utilise the protected technology in any particular
country. Perhaps this distinction between the right per se and the
manner in which the right is exploited (or not exploited) has not
been kept fully in mind by the authors when addressing the question
of impact on developing countries.
the patent system emerges from this Report as the IPR system believed
to be most in need of reform it would be useful to recapitulate what
its real objectives are, even though these have been explained previously
by many authors and many times. Patents have an essentially catalytic
function in encouraging and assisting a process that may take place
in any event but probably less effectively in their absence. In the
field of high-tech in academia or the research-based industries, this
process is the transfer of the results of laboratory research into
marketable processes and products from which producers and consumers
are expected to benefit. From the standpoint of public policy and
private interest in this legal system, patents are said to encourage
1. disclosure of information as against secrecy
2. investment in R and D.
3. creation of a market for what has been invented.
There are some subsidiary objectives also, notable amongst which is
the stimulus to further research leading to alternative technology
to compete with the patented technology ("designing around"
of these objectives has any direct and immediate philanthropic connection.
But the basic philosophy of the system is that, by according a time-limited
but adequate measure of legal protection to those that embark upon
the risky process mentioned above, humankind will indeed benefit from
its eventual fruits. This protection is seen by its owners primarily
as relevant to the activities of competitors of the same research-based
character as themselves but it is also aimed at those who do not shoulder
any burden of costly research but hope to exploit any weakness in
the innovators' IPR so as to enjoy a free-ride on the results of others'efforts.
This type of protection has the support of laws which encourage innovators
to operate gainfully and competitively in free markets, so long as
this is done fairly and in the broad public interest.
what has been said above, therefore, it is difficult to see how IPR
laws, either as they stand or after they have been tinkered with,
can themselves have any of the desired impacts on people, without
reference to human actions related to the possession of the permitted
Thus it is futile to snipe at IPR laws because they are only utilisable
by those who have the necessary human and technical capacity to do
so. How would the abolition or reform of these laws make any difference
to this unfortunate fact ?. Neither does it seem relevant to quote
statistics on the numbers of US patents granted on biological materials
and the cliché of the "anti-commons", which is contestable
to say the least. To include, along with these criticisms, the problem
of the freedom of research (a matter of current debate in developed
countries) creates the impression that the whole litany of objections
applied in other contexts is being wheeled into the present debate,
though at present they hardly figure as real live issues in the developing
impossible to see how the fact that the IP system creates an opportunity
(not a right) for the author or inventor to secure a material benefit
arising from his contribution to the useful arts can conflict with
any human right. It is also difficult to see how IP rights impose
"extra costs" on poor people. If what is referred to here
is the cost of a drug, for example, it must surely be relevant to
point out that people would not have these drugs without the inventive
activity that preceded their introduction into medicine. The same
point applies to the reference to increasing "cost of access"
to those who do not have "knowledge and inventive power".
Both these allusions contain much the same confusion as is entailed
in the anti-commons argument, as though a patent somehow closes off
a remedy that was previously freely available.
"prefer to regard IPRs as instruments of public policy which
confer economic privileges on individuals or institutions solely for
the purposes of contributing to the greater public good". There
is no justification for this peculiar and private interpretation of
the nature of IPR. The official authorities that administer the patent
law must certainly take public policy into account but this falls
far short of characterising IPR as an instrument of public policy
to be wielded by the authorities for strategies of their own devising,
however benign they may be.
Chapter concludes with reference to "the lack of recognition
of intellectual property rights for the protection of traditional
knowledge and folklore", a topic of concern to developing countries.
Attempts to set up IPR-like protection for genetic resources and traditional
knowledge have been underway for some time by WIPO. But to provide
a system of protection based on mere possession of these items will
require a sui generis approach which will not be easily grafted on
to current IPR laws. Moreover, since such resources and knowledge
have been possessed already for long periods of time it is difficult
to see in what way the establishment of a new legal protection system
will contribute directly to the solution of the long-standing problems
of developing countries. Neither is it apparent how the retrograde
weakening of post-TRIPS revisions of current IPR laws in these countries
will itself achieve benefits (except insofar as it will facilitate
evasion of legitimate rights so as to provide a free ride on the backs
of those who invent new technology).
PROPERTY AND DEVELOPMENT (Chapter 1)
be thought a merely semantic criticism to question the opening words
of this chapter which describe Intellectual Property as "a form
of knowledge which societies have decided can be assigned specific
property rights". If IPR were given for knowledge it would be
difficult to understand the specific exclusion of patents for "discoveries"
in many countries. The traditional forms of IPR with which most of
this report deals do not have the character of knowledge as such ;
rather are they concerned with the practical application of knowledge
or with forms of expression of creative intellectual activity.
undeniable that "Few developing countries have been able to develop
a strong indigenous technological capability." This would of
course be necessary to enable them "to generate their own technology
or properly assimilate technology from developed countries."
So long as this obtains, even the most ardent supporters of strong
IPR must concede that the introduction of strong IPR systems in these
countries will benefit the developed country industries more than
the local industry. Perhaps the crucial question here is whether strong
IPR would encourage technology transfer in the real sense of assisting
local technology to develop rather than the mere licensing of rights
to those who cannot make proper use of them. This will not happen
if and so long as the developed country industries see these countries
only as markets for their own produced products.
the Rationale for IP protection this report touches on the "big
issue" of striking the right balance in the scope of protection
given by patents. But this is the constant pre-occupation in the tussle
between professional patent attorneys and official patent Examiners,
and both of these groups are well aware of this as a continuing problem
and subject to developing case law, especially for biotechnological
inventions. The Report defines a "broad patent " as "one
that allows a right that goes considerably beyond the claimed invention
itself". This definition is somewhat puzzling since the scope
of the patent is governed by the claims and little else. It is also
highly tendentious, especially in the example given of the scope of
gene patents, in which the claim is not required to be limited by
reference to the specific use(s) which the inventors have discovered
. Every applicant for a patent and every inventor desires to obtain
a patent which is broad enough to protect against the clever evader
of the scope of the patent claims that Patent Offices are persuaded
finally to allow, after much argument and expenditure of time and
cost to the applicant. Little evidence has been produced so far that
such patents discourage subsequent innovation. There are of course
examples of "excessively broad claims" but the checks and
balances built into the procedures of official examination of patent
applications are designed to control such excesses as far as possible,
and this is subject to review by developing Patent Office guidelines
for examination of applications.
notes that the theory that strong IP unleashes innovation does not
work for developing countries since their research capacity is weak.
It is also true that an IP system involves high transaction costs
for their local industries and public authorities but it is not clear
how a weak system would reduce such costs.
that IP restricts competition to the detriment of consumers and trade
requires much more evidential proof than mere opinions of selected
academic economists (given in Box 1.2 of the Chapter). The same comment
can be made on the idea, trailed in the Report, that a patent deters
others from making improvements on the invention. This idea, expressed
by 'The Economist', in 1851, ignores the vigorous competitive character
of modern academic and industrial research activity.
Chapter reviews the Impact of IP on industrial growth by analysing
the problem and indicating what is needed for developing countries.
But since the function of IP is only to offer the possibility of legal
protection to those who innovate, it is based on the presupposition
that innovation will take place. In the developed countries the IP
system is expected to fund itself by passing much of the cost on to
users of the system. It is absurd to say that IP imposes costs on
that globalisation of IP brings the greatest benefit to those who
innovate, namely the developed country industry and academic institutions,
is simply a consequence of the above reality and is therefore a statement
of the obvious. But if it encourages real technology transfer then
both donor and recipient of new technology must gain for it to happen
at all. The current relative royalty flows between countries is surely
another manifestation of the same reality. This would not happen if
the recipients did not consider it worthwhile to adopt the protected
technology. So why speak of winners and losers ?
IP cannot by itself produce growth. In this report the continued insistence
on this test shows the fallacy of judging the system by the wrong
mark of efficacy. IP responds in one specific way to the initiatives
of innovators and it is these that are the direct determinants of
given above, the conclusion that industrial growth in developing countries
is associated with weak IP is fallacious if association is held to
prove causation. If the weak IP provided by the 1970 Patent Act of
India contributed to the growth of the Indian pharmaceutical industry
the question has to be asked whether this growth was achieved mainly
by building on the foundation of others i.e. the real innovators.
More to the point, it may have provided no incentive for the local
industries to develop their own technological capability. The contention
that IP or lack of it has any causative connection with growth cannot
be established by mere statistics of numbers of patents and the attitudes
to patents on the part of large, small, or medium size companies in
different industries. Growth is caused by many factors. To a large
extent it is a natural development as mankind advances in scientific
knowledge and technological competence, given the human entrepreneurial
spirit that will seek to exploit these advances for industrial and
It cannot therefore be surprising that the IPR factor does not figure
in the statistics of growth rates and investment flows quoted in this
Report. If these parameters are not directly influenced by the nature
and strength of IPR laws in these countries there still remains a
burden of proof that the proposed weakening of IPRs in these countries
would achieve improvements in this respect.
section of the Report concludes that the whole technology transfer
agenda goes beyond its remit and with this all can agree. Unravelling
the motivation to share technological advance as between competitors
or potential competitors in one's own or other countries is not a
simple matter. In developed countries, licensing and cross-licensing
decisions are usually taken primarily for commercial reasons and in
anticipation of benefit to both the donor and recipient parties to
the deal. Whether the strengthening of IPR in developing countries
as part of the WTO Agreement will itself alone lead to the effective
sharing of technology as between the developed and developing countries
is by no means a clear-cut issue even for the most devoted protagonist
for strong IPRs. It was not necessary for the Report authors to tilt
at this windmill since it has not been held out as a justification
for TRIPS. But the converse implication that weak IPRs will produce
benefit is by no means self-evident.
HEALTH (Chapter 2)
chapter begins by questioning whether the effect of introducing patent
protection may be "to increase the price and decrease the choice
of sources of pharmaceuticals". Presumably this question takes
as its starting point the assumption that in the absence of patents
in any particular country the relevant drugs would somehow be available
in these countries. Yet it goes on immediately to concede that "without
the incentive of patents it is doubtful the private sector would have
invested so much in the discovery and development of medicines, many
of which are currently in use both in developed and developing countries".
There is also reference to the NGO argument that 20 years of patent
protection delays the introduction of inexpensive generic substitutes
on which poor people depend. Of course, this latter argument provokes
the obvious retort that such substitutes would not exist if the drugs
themselves had not been invented. A further background assumption
of the authors is that the delivery of profits to the industry is
not the prime purpose of IPRs but is subject to the condition that
any such profits are used to deliver better health care in the long
term. It may seem perverse to question this assumption but it is necessary
to point out that the continuous improvement of health care is a desirable
consequence of the protective effect of IPR but it is not an explicit
condition of its very existence.
be denied that the lack of technological capacity and infrastructure
is an obstacle to affordable health care in these countries. For example,
in the recent notorious controversy over the supply of anti-AIDS drugs
to the African continent the problem was not simply one of the original
reluctance of Big Pharma to supply these drugs at cost (or, as some
would demand, at less than cost) or to license generics firms to supply
them cheaply. The greater problem was the lack of health care infrastructure
to monitor their use. So it is questionable whether the weakening
or abolition of IPR can contribute significantly towards the remedy
for this glaring inequality between countries.
section of this Report, dealing with Research Incentives, is a stark
realisation of the problem as far as the private industrial sector
is concerned. But the suggestion by the private sector that IPR could
stimulate research on the diseases peculiar to the developing countries
requires a sizeable grain of salt for its acceptance.
insistence on the idea that patents have the consequence of "charging
higher prices than would otherwise be the case" and that they
entail an "extra cost" to the people who need them seems
to be based on a fallacy recurring in this Report. These terms and
expressions can only be valid as argument if one assumes, and makes
comparisons with, a notional state of affairs that might have existed
had these drugs been invented and introduced into medicine at "lower
prices" because of the absence of any possibility of patent protection.
This method of argument is based on an altogether unreal comparison.
Whilst admitting that the absence of patent protection for these drugs
in many of the developing countries (due to decisions not to file
patent applications in these countries) has not thereby made such
drugs available in such countries, the Report is determined to find
that patents are still implicated in this
unsatisfactory situation. Hence the Report argues that imports into
these countries are prevented by the enforcement or threat of enforcement
of patents against would-be exporters from the developed countries.
section of the Report, dealing with Patents and Prices, repeats the
fallacy mentioned above ("
.if a sick person has to pay
more for a pharmaceutical product as a result of a patent
Admitting that it is difficult to isolate the impact of patents on
prices the Report sets up "econometric models" to tackle
this point. This part of the Report is most interesting as an academic
exercise but it relies mainly on "literature" and predictive
analysis to support its main contention, depending as it does on the
uncertain behaviour of generic companies in developing countries as
the law is tightened to place some restraint on the free-riders.
quarrel with the next section of this Chapter, dealing with Other
Factors Affecting Access and calling for policies which improve access
to medicines. One can also agree that IP regimes must not run counter
to public health policies, whatever this anodyne statement may mean
Policy Implications and the available Policy Options the report begins
with the WTO Ministerial Meeting in Doha, November 2001, and the "Doha
Declaration" that "TRIPS should not prevent countries from
taking measures to protect public health". This is a well-argued
section which recognises that the use of compulsory licences and other
policy options lead into "uncharted waters". Striking the
proper balance between the role of local industry to supply the national
market and the need in some cases to import drugs when little or no
manufacturing capacity exists in the developing country is clearly
challenging. This report places the burden upon the TRIPS Council
to provide an expeditious solution of this problem. There must also
be some control on the permissibility of the compulsory licence holder
to export to other countries. The Report is therefore to be applauded
in its lucid identification of problems that may flow from whatever
policies are adopted. These are all addressed in the following sections
of the Report but in most cases one is left with the general exhortation
to find solutions of them.
that "the main way that developing countries can use IPRs to
address public health issues is to ensure that their legislation provides
for appropriate standards and practices", does not get us very
far toward the desired remedies. But the objectives proposed by the
authors to achieve these ends are simply to tighten up standards of
compliance with the principles of the IPR system in developed countries
viz. reasonable scope of patent claims, non-blocking of further research,
and restraining undesirable exploitation by bad patent holders. And
when they advise against allowing patents for first and second medical
uses of known products, according to the European pattern under the
EPC, in addition to their existing ban on patents for diagnostic,
therapeutic, and surgical procedures, the justification for this attitude
is missing altogether.
be expected, the authors are keen to extend the encouragement of generic
companies to jump the gun before patent expiry for securing marketing
approval of their own versions of the patented products (the Bolar
exception in US law) and to allow these companies to rely, for the
approval of these versions, on data provided by the patent owners
in respect of their own originating products. This recommendation
may perhaps be seen by some as an acceptable levelling of the playing
field between the strong and the weak but the view of the research-based
industry may be less accommodating. But whether the Least Developed
Countries (LDCs) that have already implemented TRIPS Article 27 in
respect of pharmaceutical products should be encouraged to withdraw
this and take advantage of the Doha extension to 2011 for re-introduction
CHAPTER 3--Agriculture and Genetic Resources
chapter is an informative and much-needed exposition of the many international
aspects of this subject, including the development of the relevant
International Conventions concerning IPR (patents and Plant Variety
Protection, PVP, under UPOV), Biodiversity preservation, TRIPS, and
the International Treaty on Plant Genetic Resources (ITPGR).
at the effects of IPR systems, the report quotes a study showing "little
evidence of an increased range of plant materials available to farmers
or increased innovation as a result of PVP protection". The emphasis
here is especially upon poor farmers. Once again, it has to be pointed
out that the existence of an IPR system cannot of itself achieve these
desirable objectives without the necessary motivation of the innovators.
For these, many factors govern the decision to introduce new plant
material into agricultural practice quite independently of their IPR
that UPOV 1991 permits farmers to use saved seed on their own holdings
needs to be clarified. This previously prevailing "farmer's privilege"
is now controlled by national PVP laws and, if introduced therein,
is qualified by the requirement to pay a reduced royalty on such use.
Neither is it correct to imply that the so-called "breeder's
privilege" or "research exemption" (freedom to breed
further varieties from the PVP-protected variety) permits free commercialisation
of the new variety. This is because the protection under UPOV 1991extends
also to "essentially derived varieties" e.g to varieties
containing virtually the whole genome of the protected variety from
which the derived variety has been obtained. The relevance of the
EU Directive 98/44/EC on this point is also more complex than the
on the authors' conclusion that "At present there appears to
be little evidence that providing patent protection for biotechnology-related
inventions is really in the interests of the majority of developing
countries which have little or no capability in this technology.",
the Chapter concludes with a list of recommendations that would limit
the scope of IPR for agricultural biotechnology in these countries.
KNOWLEDGE AND GEOGRAPHICAL INDICATIONS (Chapter 4)
chapter begins with reference to "biopiracy" a word much
in vogue with the usual protest groups. There is said to be no accepted
definition of this term but the authors nevertheless give some examples
of what it covers, and they cite the well-worn examples of misguided
attempts to patent such knowledge, including turmeric, neem, and others.
Most of these have been resolved after the full facts have been revealed.
Precisely how India was in any way harmed by a US patent on the use
of turmeric for wound healing, taken out by US workers of Indian origin,
has never been clear and why the Indian Government felt obliged to
have it revoked at a cost to them of $10,000 is also obscure, apart
from the scandal felt by their own people at this misappropriation
of traditional knowledge.
this Chapter is usefully informative of current ideas and proposals
for some form of legal protection for indigenous peoples in this respect.
IPR practitioners will generally support proposals for a system for
returning benefit to indigenous communities, where this is possible
and workable, without feeling themselves impelled to invent them.
The suggestion to build digital libraries of traditional knowledge
as search material available to patent Offices will presumably command
wide assent if it will help to avoid unfortunate past mistakes.
that patent applications disclose the geographical origin of genetic
resources from which inventions have been developed will also be accepted
as reasonable to the extent that it is both necessary and possible
(the authors note that true origins are often obscure or often involve
multiple sources over the course of time). Applicants for patents
must always approach the Patent Office with "clean hands"
and disclose important background information so that proper official
examination of the application can be performed. This latter principle
is already enshrined in some patent laws under the requirement for
full disclosure of information as to known prior art. In all patent
laws it is necessary to disclose sources of materials required for
performance (the "enabling disclosure" requirement). However,
there may well be some doubt as to whether the obligation to provide
proof of permission to gain initial access to these resources will
be workable within normal patent procedure. This certainly requires
a cautionary approach at the present time and is probably best handled
by the bioprospectors (a much better term than 'biopirates') at the
outset of the original project.
REFORM (Chapter 6)
the viewpoint of those who work professionally in IPR, this Chapter
goes to the crux of the matter in advising developing countries to
avoid following the ways in which patent practice has evolved in the
developed countries. The authors nail their colours clearly to the
mast in their proposed exclusions from and restrictions on patentability
listed in Box 6.1 of the Report. These are :-
of patents on:-
(i) diagnostic, therapeutic, and surgical methods for the treatment
of humans and animals
(ii) plants and animals, micro-organisms (unless restricted).
(iii) computer programs and business methods
of patents on :-
(iv) New uses of known products
(v) plant varieties, genetic material.
(vi) international exhaustion of rights.
(vii) Compulsory licences.
(viii) Research exemption and Bolar type exception.
(ix) Strict patent examination of novelty,inventiveness, industrial
activity (utility), scope of claims.
(x) Low cost Opposition procedures.
some of the listed exclusions already exist in many developed countries,
others clearly discriminate against the pharmaceutical and agrobiotechnology
industries and must be seen as contrary to the TRIPS Agreement. The
authors are here promoting an ideological standpoint of their own
and it is difficult to divine just how their recommended dilution
of available patent protection will ameliorate the lot of the developing
countries. For example, and as would perhaps be expected, objection
is taken to absolute product protection, mirroring the recently published
discussion paper of the Nuffield Council on Bioethics, entitled 'The
Ethics of Patenting DNA'. It is also not at all clear why developing
countries are advised not to introduce 'new use' patents. This presumably
refers to the well-known 'use' patents permitted under European patent
law. These have claims directed to the first medical use discovered
for known compounds or to the special form of 'use claim' allowed
by the EPO Enlarged Board of Appeal to cover second and subsequent
medical 'indications'. Patents of this type are somewhat controversial
as to their application and they are considered by some as problematical
as regards enforcement possibilities, but on the whole they are regarded
as rather harmless. If unrestricted product claims are to be forbidden
it would seem that claims to second uses of genes would also be ruled
out by these authors.
point, therefore, the IPR practitioner may well feel that the Report
has reached its denoument and that subsequent Chapters will not contribute
further to the debate or be compulsive reading. His feelings may be
not so much of discomfiture as of despondency at the negative tone
of the Report as a whole.
The overall impression given by this Report is that, despite the usual
acknowledgement of the value and broad legitimacy of IPR, the authors
for the most part regard it as a necessary evil to be judged only
by its directly observable impact on society at large. But between
the public and the IPR systems per se there lie the business decisions
of the innovative creators as to what products and services are to
be supplied, including what and where and at what commercially reasonable
cost, and it is these that influence the ultimate realities experienced
by patients and consumers, whether these are IPR protected or not.
In proposing a reversion to the restricted types of patent protection
prevailing in developing countries pre-TRIPS, the authors fail to
establish how such a move could be instrumental in solving these countries'
problems. Weak IP protection did not help them before (except insofar
as it promoted the "piracy" of inventions made by the research
based industries in the developed world) and it failed to provide
any incentive to develop local industrial innovation in bioscience
in spite of the many outstanding bioscientists working in the public
sector in these countries. For the patent practitioner it is difficult
to avoid the conclusion that attacking IPR is the soft option which
has little bearing on meeting those real targets listed at the beginning
of this Report.