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WTO IP protections key to tech innovations that solve warming
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| WTO IP protections key to tech innovations that solve warming
Santamauro 13 Jon P. Santamauro, lawyer in Dulles, Virginia, specializes in patent law, Environmental Technologies, Intellectual Property and Climate Change, edited by Abbe E. L. Brown, 2013, Ch. 3 “Failure is not an option: enhancing the use of intellectual property tools to secure wider and more equitable access to climate change technologies”, pg. 89-96 3.3 ROLE OF IP IN INNOVATION AND ITS RELATION TO CLIMATE CHANGE TECHNOLOGIES 3.3.1 Addressing Climate Change Requires Innovation There is general consensus that innovation is critical to resolve the world's climate change-related challenges.” Recent studies have further confirmed the scale of need to develop such technologies. One 2007 study found that, if limited to technologies available in 2005, the present value cost of achieving stabilization of the level of CO2 (at 550 ppm) would be over US $20 trillion greater than with expected developments in energy efficiency, hydrogen energy technologies, advanced bio-energy and wind and solar technologies.’2 A recent report by the International Energy Agency claims that clean technology innovation must rise by a factor of between two and ten times to meet global climate change goals, including reducing greenhouse gas emissions by 50 percent by 2050.” 3.3.2 IP in the Innovation Cycle The basic premise underlying intellectual property is that recognition and rewards stimulate further inventive and creative activity and, in turn, stimulate economic growth. A recent OECD study confirms the positive relationship between strengthening intellectual property rights, on the one hand, and increased trade, foreign direct investment, technology transfer and innovation, on the other hand.35 While the broader debate persists, there is need for a better understanding of the role intellectual property plays in the innovation process. It should be stressed at the outset that intellectual property laws, in and of themselves, do not result in innovation but rather are an essential part of a process. WIPO has described this as a 'continuum from problem [to] knowledge [to] imagination Ito] innovation [to] intellectual property [to] the solution, in the forms of products’.36 Thus, to maximize its utility to bring about effective innovation and dissemination policies, it is important to consider the role of intellectual property in its proper context. 3.3.3 IP Is Not a ‘Barrier’ The proposals made for greater, or even comprehensive, exclusions and exceptions reflect concerns that intellectual property, particularly 'patents,’ may act as a ‘barrier’ to the development and diffusion of technologies. However, there are a number of distinct, yet interrelated, issues that need to be addressed in that debate, namely: (1) the role of intellectual property, including patents, in innovation or development of ne technologies: (2) the role of intellectual property in technology transfer: (3) the effect of intellectual property on prices for commercialized goods or processes: and (4) the effects of intellectual property on dissemination of technologies. Because technology transfer is specifically noted as a means of diffusing climate change technologies in the UNFCCC and is a consistent source of controversy, we will focus on this aspect.37 The patent system plays an important role in technology transfer by requiring inventors to provide full disclosure of their inventions to the public as a condition of receiving a grant of exclusive rights to the patented invention for a limited period of time.38 Trade secrets and knowhow also grant protection to knowledge developed by an innovator in relation to the optimum utilization of these technologies, and, as a result, are often coupled together with patents in licensing agreements to transfer technology.39 Both patents and trade secrets provide exclusive rights that permit a right holder appropriate returns on their investment. This not only facilitates development, but also provides an incentive for diffusion of working technologies through licensing and other cooperative arrangements with the knowledge that the holder's investment is still protected. In addition, there is no support for any special concern about intellectual property rights as a barrier to technology transfer in the climate change area.40 For example, many low-emission energy technologies are simply not patented in the vast majority of developing countries. A recent study round that, while 215,000 patents were registered for such technologies over the period of 1998—2008, only 0.1 per cent or these patents were obtained in low-income developing countries.41 In addition, a study of the photovoltaic, biofuel and wind technology sectors from 2007 finds that patents are unlikely to be a barrier to access to technologies.42 Consistent with these findings, a study by the International Energy Agency had found in 2001 that strengthening intellectual property rights is one of the most effective government actions to be taken in order to improve the enabling environment for climate-related technology transfer.43 Another study from 2008 provides empirical data illustrating that strengthened IPR systems in developing countries, in response to the TRIPS Agreement, are associated with greater transfer of technology. These findings are also consistent with typical practices employed by the private sector. Private companies transfer technology through loans, commercial sales, joint ventures, the licensing of intellectual property rights and foreign direct investment.45 Without the assurances provided by robust intellectual property protection, e.g., through patents and trade secrets, companies may be less willing to reveal their technical information to subsidiaries and licensees in a particular market.46 3.4 MOVING BEYOND THE ‘SAME OLD’ STORY 3.4.1 Looking to a Pragmatic (Not Dogmatic) Solution ‘North-South’ ideological debates about intellectual property may be intellectually interesting, but they generally fail to result in a consensus to determine the best way to secure the development and diffusion of new technologies. Indeed, several proposed mechanisms may undermine intellectual property incentives, and are generally not a realistic way for developing countries to gain access to climate change technology. As stated by one commentator, measures such as compulsory licenses are simply 'too confrontational, complex and lengthy to use in the ordinary course or business’.47 To determine the way forward, it is imperative to find more pragmatic solutions. 3.4.2 The (Right) Lessons Learned from the Pharmaceutical/Public Health Field As intellectual property and the question of 'access’ or dissemination of technologies came to the fore, it was foreseeable that certain interests would raise parallels to the debate on TRIPS and public health. Most, like Culver and Ghaleigh in this collection, have come to the conclusion that the parallels are weak.48 However, there are lessons to be learned from that debate. The Doha Declaration on the TRIPS Agreement and Public Health (Doha Declaration) has been hailed as a ‘watershed event' in the area of intellectual property and medicines.49 However, the text or the Doha Declaration itself is a testament to the tension between the differing views on the relationship of intellectual property and public health. For example, paragraph 3 of the Doha Declaration states: We recognize that intellectual property protection is important for the development of new medicines. We also recognize the concerns about its effects on prices.’ In addition, the Doha Declaration reaffirms the obligations of the TRIPS Agreement, while at the same time indicates that the Agreement must be interpreted in a manner that preserves the members’ 'right to protect public health’.50 While the Doha Declaration contains clarifications regarding the interpretation of certain ‘flexibilities' under the TRIPS Agreement,51 it did not, and has not, resolved the greater questions surrounding the relationship of intellectual property to public health. As an example, paragraph 6 of the Doha Declaration called for implementation of a solution to the problem that WTO Members with insufficient or no manufacturing capacities in the pharmaceutical sector could face difficulties in making effective use of compulsory licensing under the TRIPS Agreement'. Years of contentious negotiations led to the adoption of a waiver process in 2003,52 and a subsequent agreement to adopt an amendment to the TRIPS Agreement in 2005, whereby eligible importing countries may notify their needs to the WTO, and exporting countries are permitted to grant compulsory licenses for export. The waiver/amendment is commonly referred to as the 'paragraph 6 solution'. A compulsory license was granted pursuant to the 'solution' in Canada in 2007, although this is the only situation in which the paragraph 6 solution has actually been used. Notwithstanding years of negotiations resulting in a delicately balanced political outcome, critics suggest that the system is too complicated and underused. Supporters state that it is not intended to be used widely, but is available as necessary and serves its purpose.55 This is emblematic of the nature of these debates. Even when political decisions are reached, the results are often ambiguous. However, there have been a number of interesting developments. Many of them involve the explosive growth of public-private partnerships to meet the needs of developing countries and achieve concrete results for ‘access to medicines’ in these countries. In the area of neglected diseases, these partnerships leverage resources from multiple stakeholders in the private, public and academic sectors in order to create incentives for the development of products relevant to areas where there is a research need but lack of economic incentive due to existing market conditions. The collaboration and licensing agreement between Eisai pharmaceuticals and the non-profit Drugs for Neglected Diseases Initiative (DNDI), and a subsequent obtaining of funding from the Welcome Trust, provides a good example of mutually beneficial partnerships that benefit both private and public interests. The collaboration is intended to pursue the clinical development of ravuconazole for the treatment of Chagas disease, a disease that is prevalent mainly in poor areas of Latin America and the Caribbean.56 Under the terms of the agreement, Eisai will provide a pro-drug of ravuconazole, as well as its scientific expertise, while DNDI will initiate Phase 11 clinical studies during 2010 in Latin American countries. Eisai will have the option to become the industrial partner to manufacture, register and make available E1224 at an affordable price in endemic countries.57 Similar to other product development partnerships. this partnership provides necessary arrangements relating to risk sharing and leveraging of resources that permit a sustainable effort to bring forward new treatments for neglected diseases that were not otherwise feasible. According to industry sources, ‘[a] number of these product development partnerships (PDPs) have been established and have transformed the pipeline of R&D projects for diseases of the developing world’.58 This is the important lesson to be learned from the pharmaceutical context. While political ‘solutions’ — particularly where there is little common ground in the underlying ideological battle - serve to perpetuate debate, pragmatic solutions produce real-world results. 3.5 USING IP AS A TOOL: A PRAGMATIC APPROACH 3.5.1 Partnership Arrangements and Creative Licensing While the pharmaceutical and climate change contexts are quite different, there are similar opportunities for creative partnerships. As stated by one commentator, the key issue that needed to be recognized in the public health area was that the issue was 'not one of resolving conflict between intellectual property and the issues surrounding development of new medicines, but how to identify ways to utilize intellectual property protection to promote the development of needed new medicines’ (emphasis added).59 Once this recognition takes place, the paradigm shifts and a results-oriented approach is possible that draws on existing incentives and manages them to achieve the envisioned outcome. Using this approach, the focus becomes directed to creatively adapting existing incentives through the use of licensing and partnership arrangements to create technology collaboration based on ‘win-win’ contracts intended to spread climate change technologies. 60 This issue is also considered by Morgera and Kulovesi and by Davies in this collection. A number of public-private partnerships have tried to incorporate this principle in developing new technologies in areas where heretofore a market has not been identified. 3.5.1.1 Ethiopian tef (Syngenta—University of Bern-Ethiopia) One example of a public-private partnership in the climate change area is an arrangement that is working to increase yields and to develop drought-resistant cultivars of tef. This partnership includes Syngenta, the University of Berne, and the Ethiopian Institute for Agricultural Research. Tef is the most important cereal crop in Ethiopia, and important to food security in that country. It is a so-called ‘orphan’ crop, meaning that it is a crop that has not been the subject of much research and development work.61 To overcome the lack of investment, the Syngenta Foundation for Sustainable Agriculture is supporting work by scientists at the University of Berne to develop a shorter ‘dwarf’ tef plant intended to increase crop yields for this important cereal plant.62 This will help disadvantaged communities in the East Africa region by improving crop yields at lower costs and in a more sustainable manner. In addition, the generation of drought-resistant strains has direct relevance to the climate context where increasingly arid conditions may become more common. This is one example or how public-private partnerships are currently being used in the agricultural sector to develop new products in response to changing demands.63 3.5.1.2 EU Green Cars initiative Another example of a public-private partnership is the European Union's ‘Green Cars' initiative. The initiative seeks to leverage resources from the private and public sectors ‘to support R&D on technologies and infrastructure that are essential for achieving breakthroughs in the use of renewable and non-polluting energy sources, safety and traffic fluidity.64 The initiative includes three streams of action, including: support for R&D, support for industrial innovation through European Investment Bank loans, and demand side and public procurement measures, such as reduction in taxes for low-emissions cars.65 The project is underway and is considering proposals to move forward with the electrification of road transport (including the development of the fully electric vehicle, electric batteries, etc.) and soon will branch into other sectors. Thus, in climate-related fields as diverse as drought-resistant plants and electronic vehicles, efforts are underway to leverage resources from public and private stakeholders to create new technologies in areas that, thus far, have avoided successful development and dissemination. These programs do not seek changes to intellectual property policies but rather seek to use available resources under existing systems to drive innovation forward to particular, targeted goals. This contrasts with other approaches that seek to penalize innovators in the hopes of receiving a short-term gain at the innovator's expense, whether that is feasible or not, while risking the future development and dissemination of essential technologies. 3.5.2 First, Do No Harm: What Not to Do 3.5.2.1 Avoiding political obstructions Although creative licensing and partnerships bring results on the ground, there is still the lingering question of whether the ‘Doha' model should nonetheless be followed and a new political declaration established. While the political importance of the Doha Declaration should not be understated, it should not he viewed as a panacea for resolving the issues surrounding intellectual property policy and all matters of policy-making. The Doha Declaration resulted from a unique confluence of events, including the advent of a new trade round; the implementation difficulties of the TRIPS Agreement perceived by many countries (particularly those with little experience in modern intellectual property systems); and the justifiable concerns surrounding the AIDS epidemic in Africa and the need to address it.67 The parallels to the context of climate change are weak. Even in the public health debate, the ‘real’ solution has been the formation of partnerships that are currently creating treatments and new drugs that can meet the needs of patients suffering from these diseases in the developing world. Thus, while some commentators have called for a new political declaration on IP and climate change, this approach is fraught with difficulty, and likely would only delay more pragmatic solutions. 3.5.2.2 Do not undermine IP: it is not an obstacle but rather the key Proposals to exclude, revoke or otherwise weaken intellectual property rights in respect of climate change technologies will only reduce incentives for the development of these technologies. Recent studies suggest that wholesale exclusions of climate-related technologies would be inconsistent with the TRIPS Agreement and, if practiced in larger developing countries, would have a ‘chilling effect’ on global innovation.69 This is clearly undesirable. Download 160.34 Kb. Share with your friends:
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