Thursday, 18 September 2014

Patent Problems and Controversies

Patents are a powerful monopoly with International reach. That means they can be very helpful in promoting innovation, but they can also cause problems and controversy. We list below topical problems relating to patents. This post does not aim to discuss each topic in detail, instead giving links to further information for those who are interested.

1. Access to medicines

Patents in the developing world cause drugs to be unaffordable for the poorest. It’s an issue still in need of resolving. See our IPKat post about it here.

2. TRIPS issues

The TRIPS agreement is not assisting technology transfer to the developing world as it was meant to, and arguably is hindering development in certain countries. We briefly discuss articles that suggest changing TRIPS here.

3. Patent trolls

This is a well-known problem in the US hi-tech sector with daily developments (see for example here). The US is responding with many legislative initiatives and the recent US Supreme Court ruling Alice v CLS Bank will also help (see our post on this decision here).

4. Is the present patent system appropriate for the developing world?

In many developing countries far more patent applications are filed by foreign companies than domestic companies. In this situation perhaps we need to rethink IP rights so that national interests are better served. See a Guardian article on this issue here.

5. Bioprospecting

Who owns natural resources and should patents be allowed to hinder their exploitation?  A recent article in the Queen Mary Journal of Intellectual Property illustrates these issues very well in the context of marine genetic resources (see here).

6. Specialist IP courts

Can specialist IP courts develop biases towards patentees? This accusation is sometimes directed at the US Federal Circuit (see here). See our post on specialist courts here.

7. Patenting nature or ‘building blocks’

The US Supreme Court decisions Mayo, Myriad and Alice are based on the principle that nature, natural law and abstract ideas cannot be patented. Essentially the ‘building blocks’ of innovation must be free for all to use. Decades of US case law no longer applies and patents will be more difficult to obtain in the biotech, pharma, chemical and software fields. See our post on the post-Alice post-Myriad post-Mayo world here.

8. Unfair trade agreements

What norms are needed to ensure that trade agreements that refer to IP are fair? This is a difficult issue when negotiations happen between parties of different powers, but clearly relevant to TRIPS and the present discussion on the Trans-Pacific Partnership (TPP) and the Trans-Atlantic Trade and Investment Partnership (TTIP). The Max Planck Institute is trying to formulate appropriate norms. See our post on their Declaration on Patent Protection here. See our post on the TPP here.

9. Evergreening

Evergreening is the use of patent protection on subsequent developments to extend protection for pharmaceutical products. Certain territories, like India, have legislation to specifically prevent this. See a paper on evergreening here.

10. Dominant patents inhibiting subsequent developments

There can be a ‘pioneer’ effect where the first party to obtain patent protection in a new field obtains broad claims which then hinder development in that field. See articles on that here and here, and our discussion of it on the PatLit blog here.

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