A Global Solution for the Protection of Inventions

By Esteban Donoso

Is the current global legal system for patents really universal, fair, and effective? Author Esteban Donoso addresses this question in A Global Solution for the Protection of Inventions.

Sharing the results of an extensive study, Donoso analyzes the legal nature of intellectual property, industrial property, and patents and reviews the evolution and background of the current global legal scenario of the protection of inventions.

The study also identifies the main flaws, strengths, and virtues of the current system and examines the international instrument governing patents. Donoso then introduces a corrective action plan and addresses the compatibility of the proposal in regard to free trade, technology transfer, and the least possible market distortion.

A Global Solution for the Protection of Inventions seeks to correct the deficiencies that exist in the current patent system by introducing a differentiated protection period granted by a patent according to the economic capacity of each country and demonstrates that this action is necessary to make the global agreement governing the system just and effective.

• Language: English
• Publisher: Archway Publishing
• Release date: Apr 10, 2014
• ISBN: 9781480804166

Esteban Donoso

Esteban Donoso earned a master’s degree in law, is a university professor at PUCE Quito-Ecuador, is an associate in the legal firm Corporación Legal CL Ecuador, and is president of the NGO Pro Humano Genere. He is a lawyer committed to achieving universal justice through global legal systems.

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Copyright © 2013 Esteban Donoso.

All rights reserved. No part of this book may be used or reproduced by any means, graphic, electronic, or mechanical, including photocopying, recording, taping or by any information storage retrieval system without the written permission of the publisher except in the case of brief quotations embodied in critical articles and reviews.

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Unless otherwise noted, all translations were made by the author.

Any people depicted in stock imagery provided by Thinkstock are models, and such images are being used for illustrative purposes only.

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ISBN: 978-1-4808-0415-9 (sc)

ISBN: 978-1-4808-0416-6 (e)

Library of Congress Control Number: 2013921199

Archway Publishing rev. date: 04/07/14

This book is dedicated to my wife Lorena.

This is an augmented and corrected version of the book Correctivo a la protección mundial de las invensiones. The translation was made in collaboration with Carolina Donoso. I want to thank my sister Carolina who helped me enormously with intellectual and linguistic contributions to this book and the cause it raises. Thank you for your patience.

Contents

Concept Note (for Legal Connoisseurs)

Introduction

Chapter 1: Background of the Global Current Scenario of the Protection for Inventions

1.1. Malleable Nature of Intellectual Property

1.2. The Birth of the Global Agreement That Currently Governs the Subject: The TRIPS Agreement

Chapter 2: Validity, Justice, and Effectiveness of the TRIPS Agreement: Necessary Introduction of Proportionality

2.1. Validity (Imminently Universal): The Heart of the Patent Worldwide

2.2. Justice (Necessary Introduction of Proportionality)

2.3. Effectiveness (Positive Impact of the Introduction of Proportionality)

Conclusion

Annexes

Annex A: Novelty, Inventive Step and Industrial Application, and Global Filing Procedure (toward a Single Global Patent)

Annex B: Exceptions on Patentability and Patentable Subject Matter

• Ordre public, health, environment, among others

• Biological material

• Plant varieties

• Scientific theories and mathematical methods

• Discoveries and second-use patents

• Diagnostic, therapeutic, and surgical methods

Annex C: Exceptions and Limits to the Rights Conferred by a Patent

• Ispo iure limits

• Compulsory licenses

• Exhaustion of rights and parallel imports

Bibliography

Concept Note (for Legal Connoisseurs)

T he an alysis in this study is developed based upon a triple validation scrutiny of the examined regulation, intending to unravel the justice, validity, and effectiveness (aspects subsequently interconnected when determining the optimal incidence of a regulation on society) of the international patent legal system. ¹ This legal three-dimensional analysis has been identified with various names, such as legal trialism, three-dimensional conception of law, legal validation based on a triple criteria, triad of legal philosophy, trilogy: fact, value, and regulation, and criteria about justice, regulations, and facts, among others. In the present study, the analysis of the regulations under the scrutiny of these three criteria will be referred to as legal trialism (a name that matches the one used by the Argentinian Werner Goldschmidt, another author who is attributed with the creation of this line of thought), considering that this expression briefly reflects the spirit of this manner of analyzing regulations. ² Obviously this study acknowledges the existence of other appropriate terminology to identify this methodology.

Likewise, each of the criterions used for this three-dimensional analysis of rules (justice, validity, and effectiveness), has been referred to by various authors who have addressed the subject with different names. Thus, the criterion related to justice has been referred to as axiological aspect, recta ratio, deontic aspect, and value theory, among other terms. In the present study this aspect will be referred to with expressions like axiological, justice, justness, fairness, or righteousness, while recognizing the existence of other appropriate terminology to identify it. In the same way, the criteria that in this study is referred to as validity of the regulation, is often referred with terms like ontological aspect or others. Finally the term effectiveness, which is used throughout this study, can be identified in other publications with expressions like sociological, factual or legal reality element, and phenomenological problem, among others.

This study rests on the philosophy discussed briefly in this concept note, but it is not intended to delve into a thorough analysis of it.³ Finally, because of its illustrative qualities, a graphical approach to the ultimate goal of legal trialism is presented next. In it, each of the aspects is represented with circles (validity, effectiveness, and justice), and therefore the regulation with an optimal impact on society (the one that is at the same time just, valid, and effective) is graphically identified in the space where the three circles superpose simultaneously:

tres%20elementos%20hd%20larger%202.jpg

Introduction

C oncerning intellectual property, more specifically in regard to industrial property and within it the protection of inventions, at the current international scenario there is an issue that has polarized humanity, forming two different groups of opinion that are distinguishable by their different economic conditions. ⁴ This polarity can be recognized with opposite expressions identifiable with each group, such as developed, inventive, or industrialized countries and third world, underdeveloped, or developing countries. ⁵ The proposal contained in this document aims to bring these two opposing views closer together.

With this goal in mind, this study has been divided into two segments. In the first segment (which is also the first chapter) the malleable legal nature of intellectual property, of industrial property, and of patents is briefly analyzed. In this first chapter the evolution and background of the current global legal scenario of the protection of inventions is also reviewed, while the main flaws, strengths, and virtues that can be recognized in it are preliminarily identified. In the second segment—corresponding to the second chapter—the product of the previously mentioned evolution (the international instrument governing the matter) is examined, and the introduction of a corrective is proposed therein. The proposed corrective is based on the insertion of proportionality regarding the contribution of each country or region to the world’s technological development, which is measured in years of exclusivity. Also in this chapter a remark is made in regard to the compatibility of the central proposal of this study, with the principles and objectives of the global agreement governing the matter, such as free trade, technology transfer, the least possible market distortion produced by uneven protection, etc. In this second chapter it is concluded that such an insertion is plausible and possible, and that it would enhance these principles.⁶

While the analysis is developed in the first and second chapters (especially in the second chapter), the central hypothesis of this publication is proven. It consists in correcting the deficiencies that exist in the current system by introducing a differentiated protection period granted by a patent according to the economic capacity of each country. With this objective in mind, the analysis of the global agreement governing the matter is addressed and studied under the scrutiny of legal trialism. As it was established in the initial concept note, according to this legal philosophy, in order for a given regulation to have an optimally impact in society, it must be at the same time a valid rule (meaning that it is applicable), a just rule (which is the axiological aspect and the ultimate goal of every regulation), and an effective rule (an element that is related to its practical application).

This book proposes (in its second chapter) an essential or central corrective, which is considered irrefutable and necessary to make the global agreement governing the matter a just and effective scheme, and it also proposes other numerous secondary corrections that derive from it, which are considered relevant only in application of the first mentioned. The main proposed corrective consists of introducing—in compliance with the current regulation—a differentiated term of protection granted by a patent (the principle of proportionality), taking into account the economic capacity of the different countries. This would have a positive impact on the justice and effectiveness of the regulation. The second chapter also shows that the validity of the agreement governing the matter is imminently universal, concluding along with it that, on the basis of a fairer system—one that will be accomplished upon the introduction of proportionality—, the efforts that so far have set this regulation as virtually universal should therefore continue. As the study will show later, the goal of a universal regulation is very close to being fully achieved.

The objective of this proposal is to optimize the regulations on the subject to achieve a greater positive impact on society at a global level, taking into account the concerns of both developing countries and developed countries. Along the second chapter, the possibility of the inclusion of the proposed corrective into the current system is also addressed. To this end the suggested amendment is analyzed, as well as its compatibility with two basic principles of the invention protection system: National Treatment and Most-Favoured-Nation.

This study demonstrates that the implementation of a universal and harmonized system built on the principle of proportionality will produce a fairer and more effective worldwide scenario for the protection of inventions. This could result in an increased investment in research and development while it also will avoid the distortions that so far have been caused by the noncompliance of the rules of this system by some sectors. Furthermore, this study argues that by strengthening patents as a universally recognized and accepted right (not only in the law but in the minds of human beings), intellectual property in general could be consolidated as a worldwide expression of ownership. Although not all conclusions that this study offers for the patent system are necessarily applicable to other types of intellectual property, many recommendations here stated are. Moreover, the introduction of the proposed corrective for the patent legal system could positively impact the effectiveness and consequently the recognition of intellectual property in general.

The legal institution known as patent has global implications on issues of progress, technology, technology transference, public health, biodiversity, ancestral knowledge, trade, investment and development, geopolitics, welfare, and globalization, just to name a few. As it is discussed in the first chapter, one of the main criticisms to the current global system is that it was basically established by taking into account trade-related aspects, putting aside important facets in which this institution has profound impact.⁷ Although this was so because of the political-historical circumstances in which the global agreement governing the matter was created (which is a questionable yet immutable reality), this has notably compromised the axiological (justice) content of the regulation. Undoubtedly this must be corrected within the current system or even in disregard of it.

Perhaps the most important aspect that was left aside when the agreement governing the matter was established was public health. When the foundations and general background of the legal protection for inventions is analyzed, a confrontation is perceived. When it comes to issues of public health, this confrontation is worsened and intensified. This confrontation is present between two congruous objectives, which are the encouragement of research and free trade, on the grounds that through the granting of a patent while research is encouraged, free trade is restricted with the application of a legal monopoly. How this confrontation is deepened when it comes to public health and how it could be corrected without affecting innovation, will be explained in due course. For now it is enough to say that having more research will provide public health with more medical improvements and new pharmaceutical drugs, while monopolies over those improvements and drugs keep them from being used by part of the general public, the poorest part.

The issue of public health in relationship with the protection of inventions has caught the world’s attention for more than one occasion. Even within the forum that led to the global agreement currently governing the matter (the World Trade Organization –WTO), there have been declarations that demonstrate the global concern regarding intellectual property regulation’s impact on public health. These declarations—however worthy—have failed to provide real solutions to the situation. The heart of the proposal of this publication comprises the application of the principle of proportionality within the worldwide system for protection of inventions, treating adequately the aforementioned confrontation between the encouragement of investment in research and development and increasing the access to the result of that investment (free trade), on a global scale.

Because of the universality of the addressed issue, this study does not refer to Ecuador’s law (the author’s country), Andean community law, South America laws, or any other specific national law more than in an incidental way and only when an example serves to illustrate a particular point. This document is intended as a criticism of the international system of patents and the global regulation that contains it. Any study about the justice, validity, and effectiveness of the regulation for the protection of inventions that is confined to the internal aspects of each country will run short, being that this regulation has transcended national borders.

Thus, without any doubt, it is vital to consider the concepts reflected on the international literature disclosed by authors who have engaged the subject from a global perspective, among which Carlos Maria Correa stands out. This teacher in numerous works has exposed the injustices, weaknesses, and contradictions of the international scheme that was introduced by the current agreement governing the matter and the consequences that its application has and will have on the people of developing countries. His work is the source of systematic study on intellectual property best conceived at present and consulted worldwide.⁸ It is also worth mentioning the studies of the Belgians Bernard Remiche and Hélène Desterbecq, and the ones from Niranjan Rao and Biswajit Dhar. The last named Indian authors presented a convincing analysis that reflects on how the system currently conceived ensures that technology and trade gaps between north and south perpetuate. Likewise it is important to note the criticisms of the American author Lester Thurow. Thurow’s conclusions and contributions were key elements when this study was developed. The most qualified writers, because of the accuracy of his views, repeatedly quote him.

Following Habermas, this study has also taken inputs made by two economists in regard to the problem it addresses.⁹ The first, Joseph Stiglitz, is a courageous intellectual, Nobel laureate in economics, and world citizen in the broad sense of the term.