[pp.sweden.general] Fwd: [A2k] Patent regimes and innovation in developing countries

Thu Nov 12 17:19:37 CET 2009

very interesting!

---------- Forwarded message ----------
From: Andrew Rens <andrewrens at gmail.com>
Date: 2009/11/11
Subject: Re: [A2k] Patent regimes and innovation in developing countries
To: Silke Helfrich <Silke.Helfrich at gmx.de>
Cc: A2K <A2K at lists.essential.org>, Michel Bauwens
<michelsub2004 at gmail.com>, David Bollier <bollier at essential.org>

--
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Hi

Some initial comments in the text.

2009/11/11 Silke Helfrich <Silke.Helfrich at gmx.de>

> --
> [ Picked text/plain from multipart/alternative ]
> Hello,
> I received the e-mail below from the European Business Council on
> Sustainable Energy, an organization I work with on the commons. They are
> quite innovative (f.i. linking the energy debate with the open hardware
> discussion). I don't dare to respond, since I am not an expert in the
> field. It would be great to get some advice from people who are better
> informed than I am.
> Some links and current data would help, in English and German, your
> opinion as well, of course.
>
> Best regards and many thanks in advance
> Silke Helfrich
>
>
>  Am Mittwoch, den 11.11.2009, 17:56 +0100 schrieb Julio Lambing:
>
> > Dear Ms. Helfrich,
> >
> >
> > As you know, the European Business Council for Sustainable Energy is
> > concerned with the question how eco-innovation, carbon-neutral and clean
> energy technologies can gain a foothold in developing countries.
> > Therefore, for some time past we devote ourselves to initiating an Open
> > Source Hardware Initiative including a database for these technologies
> > which is to employ a model similar to the GNU (GPL) license.
> > At one of our workshops, the representative of a major technology
> > company pointed out that in various structurally weak developing
> > countries there is no effective protection of "intellectual property".
>

AR: this is somewhat misleading because the problem is not the effectiveness
or otherwise of local intellectual property regimes but rather the lack of
resources which prevents local enterprises in developing countries from
enforcing whatever rights they may have in developed countries.

> Thus, ruthless trend scouts can spot innovative inventions in these
> > countries (e.g. in Afirca and make them available to companies
> > in industrialised and threshold countries without sharing the benefits
> > with the innovators.

AR: This does happen but not because local IP regimes are weak but because
developing country innovators lack the means to litigate in developed
countries, which is where such technologies are exploited.

Patents are only enforceable in the territory in which they are registered.
Therefore if someone registers a patent in Lesotho that patent is only
enforceable in Lesotho, it does not prevent a trend scout from using the
Lesotho patent, which discloses how the invention works as the basis for
filing a patent claim in a developed country. The problem is that an
innovator in Lesotho is unlikely to have resources to overturn the developed
world patent, by claiming priority. An innovator in Lesotho is also unlikely
to have the resources to file and enforce patents in Japan, Korea, the US
and Europe.

Therefore, we were called upon to advocate the
> > strengthening of patent regimes in developing countries (with financial
> > and juridical support by industrialised countries) in order to safeguard
> > a just compensation for these innovators or communities.
>

AR: I am an intellectual property lawyer and would like to see intellectual
property regimes in developing countries serve developement. However
currently its international companies and not local innovators who make use
of developing country patent systems. So called "strengthening" of
developing country patent systems will not necesarily make them more
effective in serving local innovators. Instead they are likely to increase
the power which multinational corporations hold in developing countries.

However even if I thought that slavish immitation of developed world patent
regimes was useful, at a time when there is increasing criticism of those
regimes within developed countries, the rationale advanced is specious, and
appears to be founded on a misunderstanding of the problems facing
developing country innovators.

>
> > We are no experts regarding the question if and how patent regimes are
> > effective in developing countries for local innovators and SMEs.
> > Therefore, we address you as an adept of the international discussion on
> > this topic.
> >
> > In general, for years there is a discussion on whether patents are an
> > obstacle or a catalyst for the transfer of climate-friendly
> > technologies. At the international climate negotiations, speakers from
> > developing countries deplore the role of patents as an obstacle to the
> > diffusion of climate-friendly technologies. We, as representatives of
> > companies providing these technologies, are sceptical. Most
> > carbon-neutral technologies are not patent relevant any longer, and
> > there are providers of these technologies from developing countries in
> > the market as well, so there is no monopoly. Furthermore, the main
> > obstacle for employing climate-friendly technologies in developing
> > countries are lack of investment capital and lack of know-how regarding
> > available technologies and their maintenance. Patent-related problems we
> > could only identify concerning corrosion protection for offshore
> > windparks, the second generation of biofuels, CCS technology and,
> > perhaps, some recent developments in the sphere of photovoltaics. We
> > represent a considerable number of green companies which fought long and
> hard for their technologies and deem it unfair that, of all things,
> > these technologies are drawn into the patent debate -- in contrast to
> > those which polluted the Earth for decades. (Nevertheless, we deem it
> > important to further eco-innovation on a voluntary base employing a true
> > Open Source approach. Support, also financial support, would always be
> > welcome ;-)  )
>

Disclosing technology through Open Standards and through open licences such
as the GNU GPL offers a form of protection against appropriation of
technology. Once technology is disclosed through these means it becomes the
"state of the art". A patent (should) only be granted for something which is
an advance on the "state of the art". In other words an attempt to patent
technology which is available through open standards and open licences
should be refused. If the patent is granted its vulnerable to an invalidty
declaration.
Reform of developed country patent systems which requires patent examiners
to consider not just patent databases but databses of open standards and
open licensed technology would be of greatest assistance to developing world
innovators who would thus be assured that their technology could not be
subject to a monopoly by a developing world appropriator.

> >
> > Innovative climate protection technologies will be sought-after economic
> > goods in the future. What is your estimate regarding the status quo of
> > the international discussion on the strengthening of patent regimes in
> > developing countries - or, rather, mechanisms for safeguarding
> > compensation for innovations like "access and benefit sharing (ABS)"
> > discussed in the biodiversity debate?
>

> >
> > Please feel free to forward these questions to other experts.
> > Thanks a lot for your help and best regards
> >
> > Julio Lambing
> >
> > Managing Director
> > e5 - European Business Council for Sustainable Energy
> >
> > Hauptstrasse 43
> > D-61184 Karben
> > Germany
> > Fon: +49 6039 9291958
> > Fax: +49 6039 9291961
> > lambing at e5.org
> --
>
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--
Andrew Rens
Now blogging at www.aliquidnovi.org
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