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Can IP save the day?

Can IP save the day? Journal of Intellectual Property Law & Practice, 2010, Vol. 5, No. 2 Editorial Jeremy Phillips Global warming, if you will excuse the pun, is one of TRIPS, have embedded compulsory licence regimes in the most heated topics of contemporary discussion, respect of patents which can ensure that no such mon- since it transcends all political, commercial, social, and opoly is maintained—not that the compulsory licence cultural divides and it is possessed of an immediacy regimes of individual nations have been frequently that makes it impossible to ignore. The Copenhagen invoked during the century and a quarter in which they talks of December 2009 led to frustration, recrimina- have been available. In any event, most technologies are tion, and to an Accord which made no specific not patented at all in most countries. Far from freeing mention of IP rights. Does that then mean that IP has up these technologies for use by all, the failure of tech- no place on the agenda? The answer is probably that, nology proprietors in developed countries to extend while IP does indeed have a place on the agenda, the their patent portfolios into less developed countries bad press which it has received may prevent it from actually starves their patent systems at local level of the contributing to the solution as fully as it might. fee income that might be applied to improving the Decades of North–South debates and the quest for a effectiveness of the patent system locally and in building new economic order have left an almost indelible a technology information base that might prove invalu- image among many people of IP as a badge of affluence able for local innovators. It is not just patents that can help the environ- and privilege, and as a means of monopolizing wealth rather than of sharing it. This means that little or no ment, by creating incentives to invest in the develop- attention is focused on its incentive functions. ment of fresh sources of domestic and industrial To a small extent, IP might be said to act as an energy. Trade marks and certification marks can help incentive to invent, to find a new way round an old too, by enabling the concerned consumer to identify problem, or to prevent the creation of a new one. More organic, natural, and environmentally friendly pro- importantly, though, IP is an incentive to invest. ducts, as well as fuel-efficient ones. Design rights can Though the precedent of the past 200 years has no stimulate the development of more ergonomically binding force, the story of the world since the inception sound goods, and so on. But none of these rights of the Industrial Revolution has been one in which will be able to help deliver its benefits if they are seen as bad news, part of an old economic order that technological change has been commensurate with investment opportunities for the private sector rather is as much in need of replacement as the technology than laudable sentiments expressed by the public which has so polluted it. sector. Contrast the 70 years of state-controlled and So what can the IP community do? We must show politically directed innovation policy in the former that IP rights are not a necessary evil but a positive USSR with the free-range and often random growth of means of protecting investment and, through licensing, technology in the West and the result is startling. With allowing the spread of its benefits. We must show our- the best intentions, the ability to control markets and selves amenable to pooled research and shared results, to direct innovation for the public benefit, the intellec- to cut unproductive duplication of effort and to split tual output of the USSR was paltry in contrast and the responsibility for key R&D across a wider spectrum created far more environmental damage. Since a clean, of players, whatever objections the competition and sustainable, and safe environment is now demanded, it antitrust lobbyists may raise, and we must deliver the has effectively become a market to which IP investment goods. If we can show that this unprecedented threat can direct itself, given the opportunity. to our planet is a challenge to which we can rise, we Need we fear that clean technologies and green inno- will have offered more justification for the system than vations will be captured by private sector piracy, with a thousand articles by learned apologists. the result that the world is held to ransom? Emphati- doi:10.1093/jiplp/jpp239 cally ‘no’. Both the Paris Convention and, more recently, The Author (2010). Published by Oxford University Press. All rights reserved. http://www.deepdyve.com/assets/images/DeepDyve-Logo-lg.png Journal of Intellectual Property Law & Practice Oxford University Press

Can IP save the day?

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Publisher
Oxford University Press
Copyright
© Published by Oxford University Press.
Subject
Editorial
ISSN
1747-1532
eISSN
1747-1540
DOI
10.1093/jiplp/jpp239
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Abstract

Journal of Intellectual Property Law & Practice, 2010, Vol. 5, No. 2 Editorial Jeremy Phillips Global warming, if you will excuse the pun, is one of TRIPS, have embedded compulsory licence regimes in the most heated topics of contemporary discussion, respect of patents which can ensure that no such mon- since it transcends all political, commercial, social, and opoly is maintained—not that the compulsory licence cultural divides and it is possessed of an immediacy regimes of individual nations have been frequently that makes it impossible to ignore. The Copenhagen invoked during the century and a quarter in which they talks of December 2009 led to frustration, recrimina- have been available. In any event, most technologies are tion, and to an Accord which made no specific not patented at all in most countries. Far from freeing mention of IP rights. Does that then mean that IP has up these technologies for use by all, the failure of tech- no place on the agenda? The answer is probably that, nology proprietors in developed countries to extend while IP does indeed have a place on the agenda, the their patent portfolios into less developed countries bad press which it has received may prevent it from actually starves their patent systems at local level of the contributing to the solution as fully as it might. fee income that might be applied to improving the Decades of North–South debates and the quest for a effectiveness of the patent system locally and in building new economic order have left an almost indelible a technology information base that might prove invalu- image among many people of IP as a badge of affluence able for local innovators. It is not just patents that can help the environ- and privilege, and as a means of monopolizing wealth rather than of sharing it. This means that little or no ment, by creating incentives to invest in the develop- attention is focused on its incentive functions. ment of fresh sources of domestic and industrial To a small extent, IP might be said to act as an energy. Trade marks and certification marks can help incentive to invent, to find a new way round an old too, by enabling the concerned consumer to identify problem, or to prevent the creation of a new one. More organic, natural, and environmentally friendly pro- importantly, though, IP is an incentive to invest. ducts, as well as fuel-efficient ones. Design rights can Though the precedent of the past 200 years has no stimulate the development of more ergonomically binding force, the story of the world since the inception sound goods, and so on. But none of these rights of the Industrial Revolution has been one in which will be able to help deliver its benefits if they are seen as bad news, part of an old economic order that technological change has been commensurate with investment opportunities for the private sector rather is as much in need of replacement as the technology than laudable sentiments expressed by the public which has so polluted it. sector. Contrast the 70 years of state-controlled and So what can the IP community do? We must show politically directed innovation policy in the former that IP rights are not a necessary evil but a positive USSR with the free-range and often random growth of means of protecting investment and, through licensing, technology in the West and the result is startling. With allowing the spread of its benefits. We must show our- the best intentions, the ability to control markets and selves amenable to pooled research and shared results, to direct innovation for the public benefit, the intellec- to cut unproductive duplication of effort and to split tual output of the USSR was paltry in contrast and the responsibility for key R&D across a wider spectrum created far more environmental damage. Since a clean, of players, whatever objections the competition and sustainable, and safe environment is now demanded, it antitrust lobbyists may raise, and we must deliver the has effectively become a market to which IP investment goods. If we can show that this unprecedented threat can direct itself, given the opportunity. to our planet is a challenge to which we can rise, we Need we fear that clean technologies and green inno- will have offered more justification for the system than vations will be captured by private sector piracy, with a thousand articles by learned apologists. the result that the world is held to ransom? Emphati- doi:10.1093/jiplp/jpp239 cally ‘no’. Both the Paris Convention and, more recently, The Author (2010). Published by Oxford University Press. All rights reserved.

Journal

Journal of Intellectual Property Law & Practice – Oxford University Press

Published: Feb 1, 2010

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