Tackling the proliferation of patents
The global increase in the number of patents does not indicate the
strength of innovation but a weakening in the standards of what can be
considered patentable.
Geneva - The steady increase in patent applications and grants that
is taking place in developed and some developing countries (notably in
China) is sometimes hailed as evidence of the strength of global
innovation and of the role of the patent system in encouraging it.
However, such an increase does not correspond to a genuine rise in
innovation. It points instead to a major deviation of the patent system
away from its intended objective: to reward those who contribute to
technological progress by creating new and inventive products and
processes.
The increase in the number of patents reflects, to a large extent,
the low requirements of patentability applied by patent offices and
courts. Patents granted despite the absence of a genuine invention
detract knowledge from the public domain and can unduly restrain
legitimate competition.
Low standards of patentability encourage a large number of
applications that would not otherwise be made, leading to a world
backlog estimated at over 10 million unexamined patents.
This problem affects various sectors. For instance, Nokia is reported
to hold around 30,000 patents relating to mobile phones, a large part of
which are likely to be invalid, while Samsung holds more than 31,000
patent families.
A study covering various fields of clean energy technologies,
including solar photovoltaic, geothermal, wind and carbon capture, found
nearly 400,000 patent documents.
Problematic
The proliferation of patents is particularly high and problematic in
the pharmaceutical sector, where large companies actively seek to
acquire broad portfolios of patents to extend patent protection beyond
the expiry of the original patents on new compounds.
These ever-greening strategies allow them to keep generic producers
out of the market and charge prices higher than those that would
otherwise exist in a competitive scenario.
Ever-greening strategies by one company often force others to follow
the same pattern as a defensive approach.
The proliferation of 'secondary' or 'spurious' patents can impose
significant costs on patients and public health systems.
Several measures can be applied at the national level to avoid the
proliferation of patents on trivial developments in full consistency
with the Agreement on Trade-Related Aspects of Intellectual Property
Rights (TRIPS), because they fall within the policy space that World
Trade Organisation (WTO) members have retained to design and apply their
patent laws.
The most important policy that governments may implement is the
rigorous application of the requirements of patentability, based on a
thorough examination of patent applications.
The TRIPS agreement neither defines the concept of 'invention' nor
how such requirements need to be interpreted.
Thus, national laws may differentiate inventions and discoveries, and
require that the former result from an inventive activity, thereby
excluding pre-existing subject matter that is merely found, such as
natural substances.
While some patent offices grant patents on the basis of legal
fictions on novelty, there is no reason to follow such practices in
other jurisdictions.
An example of this practice by some patent offices is to admit what
are known as 'selection patents', whereby one of more items that were
previously disclosed are independently claimed.
Protection
This type of patents provide an effective means of ever-greening,
because protection can be extended for the full length of a new patent,
i. e. normally twenty additional years, despite the fact that novelty
was actually lost when such items were first disclosed.
While some large patent offices, such as the US Patent and Trademark
Office, the European Patent Office and the Chinese Patent Office, seem
to apply a lax inventive step standard thereby allowing for the granting
of a large number of 'low quality' patents, there are strong public
interest arguments to follow a different approach, particularly in
developing countries.
A strict application of the industrial applicability/usefulness
requirement, when provided for by the national law, may also contribute
to prevent the grant of unwarranted patent rights.
This is the case, in particular, for claims on new medical uses,
which are equivalent to claims over methods of treatment that have no
industrial application or technical effect.
The lack of industrial applicability may be a sufficient ground to
reject such claims.
Given the policy space left by the TRIPS agreement to adopt their own
definitions of the patentability standards, and to do so consistently
with their legal systems and practices, governments can follow different
methods to ensure that patents are granted only when there are
sufficient merits under the applicable law.
Governments may introduce specific standards in the patent laws
themselves. A notable case is the Indian Patent Act, as amended in 2005,
which incorporated in section 3(d) specific standards to assess patent
applications in the field of chemicals and pharmaceuticals.
In a case brought by a Swiss pharmaceutical company against the
rejection of its patent application relating to a beta crystalline form
of imatinib mesylate, the Indian Supreme Court held that the claimed
invention failed in both the tests of invention and patentability.
The definition of the standards of patentability can also be made
through regulations, including patent offices' guidelines.
A good example is provided by the guidelines on the patentability of
pharmaceutical products and processes adopted by the Argentine
government in 2012 to limit the ever-greening of pharmaceutical patents.
Standards
Finally, it is worth noting that in applying patentability standards,
patent offices can differentiate, in line with the TRIPS agreement,
among fields of technology to take into account particular features of
specific sectors and public policy objectives, for instance, in relation
to the promotion of generic drugs.
Measures to accommodate these differences constitute a necessary
response to the diversity of technologies and, consequently, a condition
sine qua non for an intrinsically balanced system of protection that
remains neutral in its effects on competition.
- Third World Network Features. |