T S Vishwanath: Who will bite the IPR bullet?

The divide between developed and developing countries on the protection of intellectual property will take a long time to be sorted out

The flexibilities available to developing countries under the Trade-Related Aspects of Intellectual Property Rights (TRIPS) regime of the World Trade Organisation (WTO) came up for discussion at the TRIPS Council meeting in Geneva recently.

The discussion on green technologies was part of the agenda of the TRIPS Council meeting at the request of Ecuador, which proposed easing patent terms and strengthening TRIPS flexibilities for environmentally sound technologies, so that the technologies can be transferred more easily to them. This would be similar to the flexibilities for pharmaceutical products that have been an issue of major concern to several countries. Ecuador has decided to come up with a revised proposal for the next TRIPS Council Meeting in October this year.

While many developing countries such as Cuba, Peru and El Salvador supported Ecuador's position, others simply stressed that the flexibilities and other tools that already exist in the intellectual property agreement should be used.

A number of developed countries countered that intellectual property protection does not hinder innovation and technology transfer in developing countries. Some countries, like the US, cited successful inventions around the world and the role of intellectual property in their development.

Others like the European Union (EU), according to a WTO report, pointed out that only a tiny percentage of green technologies is patented in many developing countries, meaning these countries can freely use the technologies described and published in patents applications in developed countries. The obstacles to adopting green technologies, developed countries like EU felt, lie elsewhere - the lack of financial resources, high investment costs, subsidies and import duties.

Ecuador also called for a short information session on the subject before the next meeting, with outside experts contributing and providing more details on issues of concern for all countries. Some members supported the call, while others said they need to know more about the proposed event before endorsing it.

A number of members, both developed and developing, described their experiences in providing services to support innovation by small and medium-sized enterprises, and start-up companies, as "incubation" services. Where invention and intellectual property are concerned, these services can range from giving advice on management or for filing patents, to providing office space or laboratories.

Introduced by Chinese Taipei and the US, the discussion was intended to illustrate how smaller companies and newcomers could be supported to use intellectual property in developing their innovations. Panama, Japan, Chile, New Zealand, Canada, Switzerland, Botswana and El Salvador also shared their experiences on this issue.

India cautioned that intellectual property protection can sometimes hinder innovation, a view that Brazil partly shared, although Brasilia also described its own innovation incubators.

Innovation and intellectual property protection are issues that need a lot more debate since they help build technology for industry across the globe to move up the value chain. Greater appreciation of this issue is important for companies since it also helps them to integrate better with global value chains. So, flexibilities are important in this area if all countries have to move forward and gain from intellectual property protection.

The divide between developed and developing countries on the protection of intellectual property will take long to be completely sorted out since the approach to intellectual property rights (IPR) remains different given the socio-economic reasons in both these worlds. However, while there has been a growing tendency to protect IPR of individuals, there is a feeling that the small and medium sized industry in developing countries needs help to understand and respect this important area of work in WTO. Countries like India are taking steps to understand the best possible way forward that would make sense to the Indian government and industry.

The writer is Principal Adviser at APJ-SLG Law Offices