Apr 6, 1990


GENEVA, APRIL 4 (BY CHAKRAVARTHI RAGHAVAN) -- Public policy concerns and objectives, including developmental and technological objectives in the national systems of intellectual property protection in the Third World could not be safeguarded through mere transitionary arrangements the Uruguay Round TRIPs negotiating group has been told.

At its meeting Wednesday, the TRIPs group discussed one of the mandates to negotiators under the mid-term accord, namely, that in the negotiations "consideration will be given to concerns expressed by participants relating to the underlying public policy objectives of their national systems for protection of intellectual property, including development and technological objectives".

Since the mid-term accord in April 1989, while Third World countries have been insisting that this should form an integral part of the discussion of all other issues, the ICs have virtually ignored this, focussing attention instead on standards and principles and norms of IPR protection, dispute settlement, etc.

At the most, the major ICs in their proposals have been willing to agree to "transitionary provisions", that would give individual countries a longer time span to bring their legislation, regulations and practices in line with the TRIPs accord that would emerge.

At the last meeting of the TRIPs group, an effort was made by the Chairman to get authorisation for the secretariat to prepare a draft text or elements for an agreement. Third World countries rejected this, noting in this connection that none of their concerns had even been discussed, and wondered how any paper could be prepared when one of the elements was missing.

The discussion on developmental aspects at this meeting was presumably with reference to this criticism.

At Wednesday's meeting India, supported by a number of Third world countries including Brazil, Egypt, Peru, Chile, Colombia and Malaysia, is reported to have presented the developmental considerations that must underlie any TRIPs agreement.

The agreement, in the Indian view, should provide for the basic principle of the Punta del Este declaration, namely, special and differential treatment for Third World countries.

This could not be achieved through a mere transitionary period of longer time to conform.

Any TRIPs accord must also reflect a proper balance between the rights of IPR holders and their obligations to the society that grants them this privilege. It must also have provisions to deal with abuses of the monopoly privileges granted to IPR holders.

The provision for compulsory licences in various national regimes was essential for ensuring that the society granting the monopoly privilege derived benefits through adequate working of the patent and other such privileges in the country. The instrument of compulsory licensing was essentially an instrument to attack abuses of the IPR privileges, and prevent their being used merely as an import monopoly or excessive profits through insufficient working or to hurt other enterprises depending on the product as an input.

Several of the advanced countries even now had provisions compulsory licensing, though sometimes this was in their competition laws. The mere fact of its existence and its being available itself often served to deter abuse and willingness of the IPR holder to work the patent or license it.

Each country would also need to have the freedom to determine the scope and level of the protection, depending on a proper balance between providing monopoly rights to encourage innovation and its working to benefit society and ensure larger social welfare. Each country would have to determine this balance for itself, depending on its circumstances and conditions and there could be no uniform international standards in this regard.

The present Industrial countries had themselves reached their current stages of development only because they had enjoyed these rights in the past. They cannot now try to deny it to others.

In some sectors, especially pharmaceuticals and chemicals, extending process patents to products in fact would deter innovation and technological improvement. Each country would have to decide on the basis of its own situation.

Most of the major industrial countries until just a decade ago had either excluded pharmaceuticals and chemicals from patenting or had not extended process patents to products. The FRG and Switzerland, which were leading manufacturers and exporters of chemicals and drugs had till recently not provided protection in this area, and until recently had protected only processes.

If they had taken over 100 years, and long after they had become industrialised and rich, to equate process and product patent, it was unreasonable to expect Third World countries to fall in line at this stage of their development.

Even now many of the ICs did not extend process to patent protection in pharmaceuticals. Spain and Portugal had entered reservations in this behalf while joining the EEC. Among the Nordics too, Norway and Finland did not give protection to products.

The idea that the development and technological public policy objectives of IPR regimes in Third World countries could be met through a transitionally provision was not feasible at all.

Nor was it possible to create an international regime assuring monopoly rights and privileges to IPR holders without corresponding obligations to deal with abuses and restrictive practices. It was absurd to think that such practices could be dealt with through national competition laws.

Countries claiming a right to speak for their enterprises and their rights or raise disputes internationally would have to undertake corresponding obligations over conduct of all their enterprises and their restrictive practices and restrictive business practices abroad.

In their responses, Norway speaking for the Nordics, while seemingly agreeing to the need for developmental considerations and the s and d principle, insisted that the rules should be the same for everyone. Norway however admitted that even now in Norway and Finland there was no product patent protection for pharmaceuticals and chemicals, but said they were changing their law.

The EEC agreed that Spain and Portugal were yet to conform, but argued they were committed to this. The U.S. expressed its "concern" over the Third World views and interventions. These either meant that the status quo should be maintained or that Third World countries should have the freedom to get technology and intellectual property without paying for it.

Third World countries however said they would come back to respond to the objections.