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Cícero Gontijo: Changing the Patent System (Chapter Four), May 2005

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4. CONCLUSIONS

In the past 150 years, intellectual property has undergone constant and deep changes, always towards the confirmation and extension of the rights of right holders, reducing the preoccupation with their obligations almost to the point of their disappearance. At no point in history has there been a successful attempt to shift the weight towards an equilibrium that would take into account the direct interests of the developing countries and their consumers. (The attempt to amend the Paris Convention to reserve a differentiated treatment for developing countries failed after five years of negotiations at the Nairobi conference in 1982.

From a period when the local exploitation of inventions was required as a fundamental precondition for granting or keeping a patent (used by England, Switzerland, France, the United States and others), we have arrived at a moment in history where such a requirement is considered illegal, as happened when the United States made a complaint at the WTO against Brazil for having included this interpretation in its patent law.

From a period when nullity was a normal and efficient instrument for securing local exploitation, we have come to a phase where the compulsory licence has replaced nullity, turning it into dead paper for the benefit of patent holders.

From a period when the compulsory licence was presented as a state instrument capable of preventing abuse by right holders, we have come to a compulsory licence that can no longer be applied in practice due to the changes in its nature, which have made it non-exclusive and necessitate financial compensation.

From a period when each country had the right to independent intellectual property legislation as a financial-policy instrument that defined in which sectors it would allocate monopoly rights, withthei respective duration and conditions, we have now come to an international agreement where all economic sectors have patent protection with rights standardised at a high level, and with no restrictions for the right holders.

Still worse, the negative impact of the transformations has been felt strongest in the developing countries. The compulsory high-level standardisation did not take into account that income is lower in these countries. That the monopoly effect is often strengthened by the fact that in many developing countries new inventions do not compete with similar products. That the gap between them and the industrialised countries increases daily because of the limitations in industry and research centres in developing countries. And that the patent system has the very same effect on them as a market reservation.

Add the fact that some of these inventions belong to the area of drugs and food that have a direct impact on the life and the dignitiy of human beings.

The TRIPS agreement includes objectives that would have restricted the perverse effect of the patent system on developing countries when applied in practice. In art. 7 it presents as its main objective, alongside technological innovation, the transfer and dissemination of technology in a way to produce social and economic welfare and establish a balance between rights and obligations. But this objective disappears in the following provisions, i.e. the norms that constitute the treaty.
 
It is clear that developing countries are not interested in a patent system that does not include the possibility of a demand for local exploitation. It is clear that a system without flexibility has a negative impact on development. It is unreasonable to grant 20-year monopolies without any retribution, just to serve the principle of inventor compensation and to stimulate the promotion of inventive activities. To grant market reservation for products that only arrive in a country through imports, without any specific benefit, goes against human reason.

This is why the actions of Brazil in the negotiations on intellectual property have had so many repercussions and why it has received so much support. To demand the inclusion of the development dimension in the treaties that govern the practical application of intellectual property helps to support the international system of intellectual property. To demand an effort be made towards the objective of facilitating the transfer and dissemination of technology contributes to the acceptance of TRIPS, at a lower cost to developing countries. The interpretation that local exploitation can be required by a patent-granting country should not be considered erroneous. In the middle of last century, the great Paul Roubier taught us that: "if the state accepts to give the inventor a monopoly to exploit (a patent), it is under the condition that there is an efficient exploitation (of the patent)" (Le droit de Propriété Industrielle, 1952).

The next years will tell if a treaty that is as biased as TRIPS, in a sector that is as sensitive as that of technological innovations, and as important for developing countries, will have a long life expectancy. The success story of the Paris Convention, with its flexibility with respect to the legislation of each member state, leads us to believe that TRIPS has to become more flexible with regard to developing countries, so that they all can benefit from the creation of new inventions. 

Brasilia, May 2005
Cícero Gontijo

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