21.05.2008 | Do We Need New Policies to Promote New Discoveries?
On Thursday, May 7, the European Patent Organization concluded its annual European Patent Forum. This year the focus was on ‘Inventing a Cleaner Future’. Climate change experts did a laudable job in setting the stage for a discussion on whether the current IP system—namely patents—was up to the task of encouraging innovation and dissemination of environmental and energy saving technologies. Speakers suggested a number of policy alternatives, from eco-patent pools or commons, prize funds, additional government regulation to force innovation, to creating a separate IP track for ‘clean’ vs. ‘unclean’ discoveries; all the while holding out the possibility of compulsory licensing to get eco-technologies quickly into the developing world. Indeed, the President of the EPO, Alison Brimelow, said in her Euractiv letter to the editor “eco-innovation may prove to be the next battle ground for the reputation of patents”. She further notes that the “heart of the debate are the questions of cost and access to new technologies.” Sound familiar?
For those who have been following the Intergovernmental Working Group talks taking place at the World Health Organization it brings back reminders of many of the arguments made by certain delegations eager to strip IP protections from innovative medical technologies. On May 19, WHO delegates to the World Health Assembly convened and will continue to argue over a number of issues which could impact innovation in the medical technology sector. While there are many worthwhile issues being discussed at the WHA such as how to increase R&D for medical technologies; there remain several controversial proposals that could undermine the existing R&D system (e.g. provisions impacting competition law and pricing mechanisms, the current patent and clinical data protection rules, interference with bi-lateral trade) to name a few.
My hesitation about the discussion at the EPO climate change event in Slovenia is not the topic—it’s certainly an important one—nor the one of the key conclusions — yes, the patent system probably is the best way to encourage new climate-saving technologies—but the sense of ‘policy panic’ that filled the room. New policies should not be made on a whim or in panic mode. If (and that is a big IF), new policies to promote new discoveries are needed; policy makers must consider the potential side effects. The consequences of new IP protection schemes or patent alternatives should be fully explored. For example, what would be the impact on innovative companies and the high quality, high paying jobs they support, especially small and mid-sized firms whose business model may rest on the ability to market and protect one new discovery? If a new discovery can’t find its way to the marketplace, it may remain just that, a great idea gathering dust on a shelf, instead of an idea that entered the marketplace, rewarded the inventor—and, by the way, helped save the planet.