An ethical and political project
Alain Pompidou is a doctor, biologist and a politician. An MEP from 1989 to 1999, he headed up the European Patent Office (EPO) from 2004 to 1 June 2007. We look through his expert eyes at the future of intellectual property protection in a globalised world.
As EPO chairman, you initiated an investigation into the future of intellectual property protection, including patents, at world level. What sparked off this research?
During my various previous functions, I had had repeated occasion to observe the advent of a global-scale debate on the patent system. I think here of the controversy surrounding freeware, third world access to medicines, the patentability of life sciences, and more generally the ethics surrounding patents. To give you just one example: on my arrival as EPO chairman, I was horrified to learn that patents had been delivered on antipersonnel mines. But on further enquiry I found that the patent related to the detonator, which is exactly the same at that used in car airbags. This is typical of the complexity of these dual technologies, which can be used for both civilian and military purposes.
This increasing public debate should be seen in the context of economic globalisation, which, if we are honest, looks more like a jungle than a global village. The intellectual property world cannot escape this development. I think here of these veritable pirates whom the British call patent trolls. These are investors who buy up the patents of bankrupt companies in order to threaten to sue other companies in the sector for counterfeiting and to negotiate financial settlements, to the detriment of true innovation and the dynamism of the sector. The growing ethical debate and uncertainties as to the future of the patent system in the globalised economy; these are the two reasons which led me to launch this collective discussion, which involved around 150 experts over a three year period.
The four scenarios deriving from this investigation (see box) are presented as equally probable. Is this realistic?
We need to understand these scenarios as archetypes, extreme models which serve as a basis for discussion and for adopting a strategy, in particular for the European Union, in order to find a balance between these four poles. This is also what happens in real life. Let’s imagine an extraordinary technological innovation (“Blue Skies” scenario), patented by a large first world corporation (“Market Rules” scenario), which rapidly becomes essential for life and health in developing countries which cannot access it. Those in the developing world will react politically (“Whose game?” scenario), possibly forming alliances with civil society organisations (“Trees of knowledge” scenario) to start negotiations which will give them access to this invention.
Does the cost of European patents not put the European Union at a disadvantage in most of these scenarios?
Yes and no. Yes, of course it is important to make an effort to reduce the cost of patents, which are too much like an innovation tax. The fact that the London Protocol is coming into effect in early 2008 is very good news from this standpoint. But neither should we forget the flip side of the coin: in return for the cost and time taken to examine patent applications, EPO patents are known to be solid. Scarcely 3% of the patents delivered by the EPO are disputed in court. For Japan and the United States the figure is 10 times higher.
EPO examiners do their work very seriously, in particular the search for anticipations. This is a costly and time-consuming task. And quality pays off! Japan and the United Stateshave opted for another path: to move ahead rapidly in delivering patents, in order to reduce the backlog (there are 1.5 million patent applications pending in both Japan and the United States as against 300 000 in Europe), and leave the task of judging the solidity of the patents to the courts. It is interesting to note here that China and Korea are today moving towards a European path: patents which take longer and cost more to obtain, but which guarantee an inventor very solid protection of his invention.
In early August, the UN Conference on Trade and Development (UNCTAD) called for a total recasting of the international system of intellectual property rights in order to help the poorest countries. What might be the broad lines of such a recasting?
I expect two major evolutions. The first is the introduction of a system for the reasonable use of mandatory licences. This allows a State to obtain the right to exploit a patented invention in return for a negotiated financial compensation. The debate on access by developing countries to AIDS drugs has popularised this mandatory licence, which I expect very soon to find new areas of application.
The second is the progressive recognition of traditional knowledge, to avoid it being pillaged, as so often happens, by multinational corporations. During my term as EPO chairman, I had information on traditional medicine in China, India and certain African countries included in the databases used by examiners. This allows us to refuse to deliver a patent for an invention which simply picks up ancient, but unpatented knowledge. This indirect form of legal protection also poses a new question: how do we reward the inventors of this traditional know-how, or those maintaining it? This is an immense ethical, political and legal project which is opening up.
Four scenarios for the future
What will the world system of intellectual property rights look like by 2025? The experts brought together by the EPO were certain of only one thing: with the fast and far-ranging changes we are seeing today, it is no use envisaging a business as usual scenario. Hence their option to look more at the forces underlying these evolutions.
Each of these hypothesis in turn gives rise to a series of questions.
In the “Market rules” scenario, global economic competition plays the central role. The field of patentability expands constantly, in particular to services, with multinationals taking a growing place. But is there not a danger of such monopolies undermining innovation, and reducing the importance of intellectual property? Also because in this scenario, apart from the reduction in the number of potentially creative players, certain patents are purchased and “frozen” with the sole aim of avoiding competition.
In the “Whose game?” scenario, geopolitics is the dominant force. The first world countries lose their current supremacy and have to come to terms with emerging powers using their own intellectual protection legal tools on a regional basis. But how then do we design a global system that guarantees equity to the various parties involved?
In the “Trees of knowledge” scenario, global civil society brings front stage the question of the right to food, health or education, stating that intellectual property protection is limiting access to these rights and defending the free nature of knowledge. But how do we reconcile these demands with rewarding innovators fairly?
Finally, the “Blue skies” scenario makes high tech the driving force for responding to global challenges, including global warming. The acceleration of innovation is posing problems of such complexity as to become insoluble within the current unified system of intellectual property, which is breaking up into a number of sub-systems. But can the old form of patent law adapt to such a change in the speed and nature of innovation?