November 2, 2008 by Lisa Feldstein
The following is based on the Globe and Mail article “Major companies agree to make anti-pollution patents public,” by Martin Mittelstadedt.
Since January 2008 patents developed with the goal of fighting pollution have been put into the public domain by a growing number of large companies, such as DuPont and Xerox. Dubbed the “eco-patent commons,” pollution-fighting technologies are readily available, and for free no less, on the Internet with simplified instructions.1 Such a radical shift from the typically private nature of patents causes one to wonder what inspired the shift and what lays down the road ahead in the world of patent commons.
The wave of environmental concern washing over businesses in the past several years provides some context to why anti-pollution measures, and soon other environmentally-friendly technologies, have been brought into the public domain.2 Of course, some individuals genuinely care about the environment and hope to “encourage collaboration and inspire innovation”3 for the good of the Earth. Others are likely more motivated by the financial benefits of an eco-friendly image.
But what are the implications of this new patent-sharing development? What can we expect the future to hold in terms of patent sharing in other domains? One potential area that will hopefully be impacted is the health sector. It is difficult to imagine the lucrative business of pharmaceuticals jumping on this benevolent bandwagon. But what if it did? Perhaps this is the beginning of a powerful trend, leading to a disregard for licenses and royalties in favour of making a difference.
Patent registration allows for a market monopoly, preventing inventors from using patented inventions for twenty years4, unless the patent holder is willing to accept royalties, and the patent-user is able and willing to pay them.5 Patent registration also allows companies to charge insurmountable prices, leaving many patients, particularly in developing counties, unable to purchase much-needed medication.6 It is vital to increase accessibility to drugs and accelerate the lengthy process of getting approved drugs on the market.7 One way to do so is by developing a “pharmaceutical-patent commons.” If this were the norm, researchers could immediately draw on the patents of others, rather than re-inventing the wheel or waiting years for the patent to become part of the public domain.
It is high time to discuss the notion of controversial, but essential, legislative reform, requiring all potentially life-saving pharmaceuticals to be placed directly into the public domain with the goal of increasing global public health.8 The international community is already on this path as it embraces compulsory licensing, encourages differential pricing and affords legal flexibility to developing countries that are members of TRIPS.9 However, due to the high prices of drugs, these practices are not always effective.10 Perhaps by eliminating the costs of licensing patented drugs and increasing collaboration among pharmaceutical companies, developing countries could source out realistically priced medicines, and poorer individuals in private healthcare systems could afford what is already there. Let’s learn from these eco-conscious companies, open up the commons and strike a better balance between patient rights and patent rights.
1 Martin Mittelstadedt, “Major companies agree to make anti-pollution patents public” The Globe and Mail (11 September 2008) online: The Globe and Mail < www.theglobeandmail.com >
3 Supra note 1.
4 Patent Act, R.S.C 1985, c. P-4, s. 44.
5 According to TRIPS, in special circumstances, such as the case of a national emergency, voluntary licenses may be waived and compulsory licenses imposed.
6 WHO, Patents, online: < http://www.who.int/trade/glossary/story071/en >
7 WTO, Philosophy: TRIPS attempts to strike a balance, online: <http://www.wto.org/english/tratop_e/TRIPS_e/factsheet_pharm01_e.htm >
8 The phrase ‘legislative reform’ does not pertain to international trade agreements, but rather, suggests that we begin by strengthening our own federal patent laws.
9 Trade-Related Intellectual Property Rights (TRIPS) is an international agreement made under the World Trade Organization. It regulates Intellectual Property through the establishment of minimum standards that all signing members must meet. TRIPS allows poor countries that cannot manufacture the drugs themselves to legally override drug patents in the pursuit of public health
10 In some circumstances countries that cannot afford the drugs are allowed to manufacture generics. Countries that do not have the infrastructure to manufacture these drugs face a disadvantage in providing accessible medication to its citizens.