On the path to development many emerging nations focused on importing scientific and technical knowledge from other countries. Following that, they tried to copy and master it. Working and re-working existing knowledge rather than creating new knowledge through research is a predominant activity in innovation. As many technologies and much knowledge are proprietary in nature and form the subject matter of patents owned by foreign entities, a key national policy instrument is the intellectual property rights regime. How it reflects and balances relevant international commitments with the goal of advancing the economic and social rights of its citizens is crucial in promoting their best interests.
This is a Call for Proposals on how developing countries can access technologies and information contained in existing patents to enhance innovative research at the national level. Proposals can be made under any one of the following three headings:
1. THE RESEARCH EXEMPTION: Article 30 of TRIPS permits exceptions to the exclusive rights of the patent-holder providing it is limited, does not prejudice the patent-holder’s legitimate interests or conflict with its normal exploitation of the patent. This can include research on patented technology. In some countries it also includes research aimed at the early introduction of patented medicines.
The research exemption is articulated differently in different national legal systems. It can either be contained in a national statute or arise in the common law. Usually it applies to all categories of researchers, though in a few countries is limited to private or academic researchers. Many developing country laws characterize the exemption as being for experiment, others for scientific purposes, and some for education. Some countries specifically exclude commercial purposes. Others say it can be for technological purposes, which points to applied and perhaps eventual commercial use. Some countries have the so-called Bolar exemption that permits using the technology with the aim of obtaining prior approval from health regulators for a generic product prior to the expiration of the patent.
It is the diversity of formulations that give rise to the suggestion that the research exemption is not formulated with sufficient breadth to take advantage of its potential as a spur to innovation. Studies indicate that the pre-existence of a patent may diminish research in a given area due to the fear of litigation, the high cost of royalties and the complexity of licensing arrangements.
Proposals could address these or other questions:
● What is the real impact of the research exemption on research in key sectors for developing countries?
● Is the productivity of international research networks being reduced by restrictive formulations of the research exemption in developed countries?
● How is the research exemption best expressed to promote innovation and development-related research and to what extent have developing countries used the exemption?
2. COMPULSORY LICENCES: Article 31 of TRIPS provides for States to grant a compulsory licence only where efforts have been unsuccessful to obtain one on reasonable commercial terms. Exceptions to this are cases of national emergency or other extreme urgency or in cases of public non-commercial use. The license must be non-exclusive, limited in time and scope, and predominantly to supply the domestic market. The owner must be adequately compensated. In policy terms, compulsory licensing is desirable to control high prices on such things as medicines and text books, to break anti-competitive behaviour, to ensure a market is sufficiently supplied, to ensure a patent is exploited, to address an emergency, to address issues relating to dependent patents, and to establish a research or industrial base.
Proposals could address these or other questions:
● How can the right to a compulsory license be most effectively and liberally framed to permit access to technology for research?
● How should developing countries implement the Doha Declaration permitting access to patented technologies when facing a health crisis?
● Is the patenting of platform technologies preventing work on whole families of inventions? What measures can be taken to overcome that?
● What is the significance of the patents on research tools for use in sectors that are key for developing countries? What can be done to ensure their availability, especially to publicly funded organizations?
3. PATENT POOLS: A patent pool is an agreement between patent-holders to license their respective patents to one another or to third parties on a non-exclusive basis. It can be done directly or through an intermediary. Patent pools can be mandated by government or arranged by industry where patent thickets have developed rendering technological progress difficult; historically this occurred in the aircraft and sewing machine industries. In biotechnology they have been considered as a means of addressing the perceived difficulties created by a growing interdependence among gene patents owned by multiple patent holders and increasingly burdensome transaction costs associated with gene patent licences. In general, patent pools can help integrate complementary technologies, reduce transaction costs, clear blocking positions, avoid costly litigation and promote dissemination.
Patent clearing-houses are special patent pools that cover a particularly broad range of technologies and are more likely to rely on a single entity to coordinate the administrative functions. They provide information about the patented technologies and often feature knowledgeable industry participants able to divide the patents into appropriate categories. They may also provide an arbitration mechanism for monitoring and enforcing contracts.
Proposals might address these or other questions:
● What low-margin research in developing countries would be promoted through the use of patent pools?
● To what extent can patent pooling address some of the key challenges that IPRs may pose for development-related research such as in the health sector?
● In what circumstances should patent pooling be mandated by government to permit innovative research?
● What has been the impact of patent clearing-houses, how can developing countries best benefit from them, and what can be done to establish and sustain them?
HOW TO APPLY
● This call for proposals is limited to developing country institutions.
● The lead researcher and key members of the team should be citizens or residents of a developing country.
● Six grants of approximately $75,000 Canadian will be made after the close of the competition on November 30, 2007.
● Applications will be judged by IDRC.
● Applications should be made electronically in the format of the competition application form found at www.idrc.ca/intellectual-property and sent by email to [email protected].
● Applicants are strongly encouraged to read the following background paper entitled “Accessing Patented Knowledge for Innovation” to assist in addressing the issues. The document can be accessed from www.idrc.ca/intellectual-property.
