products remained unpatentable in Spain and Canada right up to the early 1990s.[34] Before the TRIPS agreement, most developing countries did not give pharmaceutical product patents.[35] Most countries had never given them; others, such as India and Brazil, had abolished the pharmaceutical product patents (process patent as well, in the case of Brazil) that they once had.[36]
Even for things whose patentability is not disputed, there is no obvious way to judge what is a worthy invention. For example, when Thomas Jefferson was the US patent commissioner – quite ironic given that he opposed patents (more on this later), but this was
Since the 1980s, the originality hurdle for patents has been significantly lowered in the US. In their important book on the current state of the US patent system, Professors Adam Jaffe and Josh Lerner point out that patents have been granted to some very obvious things, like Amazon.com’s ‘one-click’ internet shopping, the Smuckers food company’s ‘sealed crustless sandwiches’, and even things like a ‘bread refreshing method’ (essentially toasting the stale bread) or a ‘method of swinging on a swing’ (apparently ‘invented’ by a five-year- old).[37] In the first two cases, the patent holders even used their new rights to take their competitors to court – barnesandnoble.com in the former case and a small Michigan catering company called Albie’s Foods, Inc. in the latter.[38] While these cases are at the wackier end of the spectrum, they reflect the general trend that ‘the tests for novelty and non-obviousness, which are supposed to ensure that the patent monopoly is granted only to truly original ideas, have become largely non-operative’.[39] The result of this has been what Jaffe and Lerner call a ‘patent explosion’. They document how the number of patents granted in the US grew by 1% a year between 1930 and 1982, the year when the American patent system was loosened, but grew by 5.7% a year during 1983–2002, when patents were more liberally granted.[40] This increase is definitely not due to some sudden explosion in American creativity![41]
But why should the rest of the world care if the Americans are issuing silly patents? They should care because the new American system has encouraged the ‘theft’ of ideas that are well-known in other countries, especially developing countries, but are not legally protected precisely because they have been so well known for such a long time. This is known as the theft of ‘traditional knowledge’. The best example in this regard is the patent granted in 1995 to two Indian researchers at the University of Mississippi for the medicinal use of turmeric, whose wound-healing properties have been known in India for thousands of years. The patent was only cancelled thanks to the challenge mounted in the American courts by the New Delhi-based Council for Agriculture Research. This patent might be still there if the wronged country had been some small and very poor developing nation that lacked India’s human and financial resources to fight such battles.
Shocking though these examples may be, the consequences of the lowering of originality bar is not the biggest problem with the recent unbalancing of the intellectual property rights system. The most serious problem is that the IPR system has begun to be an obstacle, rather than a spur, to technological innovation.
Sir Isaac Newton once famously said, ‘if I have seen a little further, it is by standing on the shoulders of giants’.[42] He was referring to the fact that ideas develop in a cumulative manner. In the early controversy around patents, some people used this as an argument against them – when new ideas emerge from a ferment of intellectual endeavour, how can we say that the person who put the ‘finishing touches’ to an invention should take all the glory – and the profit? Thomas Jefferson opposed patents on this very basis. He argued that ideas were ‘like air’ and cannot, therefore, be owned (although he saw no problem in owning people – he himself owned many slaves).[43]
The problem is inherent in the patent system. Ideas are the most important inputs in producing new ideas. But if other people own the ideas you need in order to develop your own new ideas, you cannot use them without paying for them. This can make producing new ideas expensive.Worse, you run the danger of being sued for patent infringement by your competitors, who may own patents closely related to yours. Such a lawsuit would not only waste your money but also keep you from further developing the technology in dispute. In this sense, patents can become an obstacle, rather than a spur, to technological development.
Indeed, patent infringement suits have been major obstacles to technological progress in US industries like sewing machines (mid-19th century), aeroplanes (early 20th century) and semiconductors (mid-20th century). The sewing machine industry (Singer and a few other companies) came up with a brilliant solution to this particular problem – a ‘patent pool’, where all the companies involved cross-licensed all the relevant patents to one another. In the cases of the aeroplanes (the Wright brothers vs Glenn Curtiss) and the semiconductors (Texas Instrument vs Fairchild), the firms concerned could not reach a compromise, so the US government stepped in to impose patent pools.Without these government-imposed patent pools, these industries could not have progressed as they have done.
Unfortunately, the problem of interlocking patents has recently become worse.More and more minute pieces of knowledge have become patentable, down to the level of individual genes, thereby increasing the risk of patents becoming an obstacle to technological progress. The recent debate surrounding so-called golden rice illustrates this point very well.
In 2000, a group of scientists led by Ingo Potrykus (Swiss) and Peter Beyer (German) announced a new technology to genetically engineer rice with extra beta carotene (which turns into Vitamin A when digested). Because of the natural colour of beta carotene, the rice has a golden hue, which gives it its name. The rice is also considered ‘golden’ by some because it can potentially bring important nutritional benefits to millions of poor people in countries where rice is the basic staple.[44] Rice is nutritionally very effective, able to sustain more people than wheat, given the same area of land.But it lacks one critical nutrient – Vitamin A. Poor people in rice-eating countries tend to eat little else other than rice and therefore suffer from Vitamin A deficiency (VAD). At the beginning of the 21st century, it is estimated that 124 million people in 118 countries in Africa and Asia are affected by VAD. VAD is thought to be responsible for one or two million deaths, half a million cases of irreversible blindness and millions of cases of the debilitating eye-disease, xerophthalmia, every year.[45]
In 2001, Potrykus and Beyer caused controversy by selling the technology to the multinational pharmaceutical/biotechnology firm, Syngenta (AstraZeneca at the time).[46] Syngenta already had a legitimate partial claim on the technology, thanks to its indirect funding of the research through the European Union. And the two scientists, to their credit, negotiated hard with Syngenta to allow farmers making less than $10, 000 a year out of golden rice to use the technology for free. Even so, some people found the sale of such a valuable ‘public good’ technology to a profit-making firm unacceptable.
In response to the criticisms, Potrykus and Beyer said they had had to sell their technology to Syngenta because of the difficulties involved in negotiating licences for the other patented technologies they needed in order to operationalize their technology. They argued that, as scientists, they simply did not have the necessary resources or the skills to negotiate for the 70 relevant patents belonging to 32 different companies and universities. Critics countered that they were exaggerating the difficulties. They pointed out that there are only a dozen or so patents that are truly relevant for countries where the golden rice would bring about the largest benefits.
But the point remains. The days are over when technology can be advanced in laboratories by individual scientists alone. Now you need an army of lawyers to negotiate the hazardous terrain of interlocking patents. Unless we find a solution to the problem of interlocking patents, the patent system may actually impede the very innovation it was designed to encourage.
The recent changes in the system of intellectual property rights have magnified its costs, while reducing the benefits. Lowering the originality bar and the extension of patent (and other IPR) life have meant that we are, in effect, paying more for each patent, whose average quality, however, is lower than before. Changes in the attitudes of rich country governments and corporations have also made it more difficult to override the commercial interests of patent holders for the sake of the public interest, as we saw in the HIV/AIDS case. And making increasingly minute pieces of knowledge patentable has worsened the problem of interlocking patents, slowing down technological progress.
