Letter From Esteban Donoso

VISIT OUR WEBPAGE www.tripsplusultra.com FOR AN INTERACTIVE REVIEW OF THE TRIPS PLUS ULTRA PROPOSAL!

A few years ago a simple yet globally significant idea came to me. To my surprise no one had academically proposed to introduce in the current patent’s international scheme a differentiated period of protection for inventions attached to the economic status of the different countries, i.e. an international system with proportional global reward towards research and development. Since I realized I was the first to think of it, I felt compelled to investigate, develop and postulate it, and so I did (my conclusions are stated in the books “Vigencia, Justicia y Eficacia del Régimen Internacional de Patentes”, “A Global Solution for the Protection of Inventions”, and in the economic paper at JIPEL, entitled “Application of a mechanism of proportional reward towards global innovation”).

In this hypothetical system any holder of a patent shall have the same term of protection worldwide than any other holder of a patent in a WTO member country, regardless of their nationalities or the field of technology of the invention, in strict compliance with the principles of national treatment and most favored nation treatment. But, the duration of their rights will vary from country to country, according to the economic capacity of each country.

To structure the proportional system in terms of the duration of the rights granted to a patent a single amendment in the text of the TRIPS Agreement is required: Article 30. While this amendment will not be easy to crystallize, is plausible. Each state, country or economic region, will grant a certain number of years of exclusivity to patent holders within its territory, regardless to the nationality of the holder. The practical implementation of the proposed amendment will require careful analysis, primarily an economical one. In my studies I have attempted one.

This cooperation between countries to achieve a better IP system could result in that the humanity as a whole could even be more generous with inventors and their investors, bearing the burden that this generosity would mean in a proportional way. My proposal does not seek to establish a priori the equilibrium or the optimal period of extension for a patent. It will be easier, though, to obtain objective economic conclusions and consensus about this issue if the “patent monopoly” is beard proportionally by the different countries or trade regions.

It results difficult to quantify the retribution that society wants or can give to inventors for their undeniable contributions, for example for fighting climate change. From an axiological point of view, it is impossible to appreciate a priori whether a given period of exclusivity is just per se. However it is possible to notice whether it absolutely ceases to be just: when to many suffer compared with those that report a benefit. Thus, the term of protection should be the highest possible, limited by any evidence of unjustified reduction of the general welfare (at that moment it would become unfair). Proportionality, thus, will also contribute on the effort to determine an optimal period of protection (all countries will proportionally equal impact by the monopoly).

In a true universal regulation the term of a patent should not consider the interests of each nation, but it should account for the welfare of all those who are governed by it. It is in this sense that by introducing proportionality regarding the term of a patent in relation to the economic capacity of the various countries, that the TRIPS could be instituted as a fair, valid, effective (in the legal sense of achieving what was intended by the rule) and efficient (economic efficiency in an academic sense) global regulation. WTO could be envisioned as a catalyzer of human cohesion.

Again, in the hypothetical system that I have envisioned, which is equitable in the way the humanity as a whole compensate the inventors, the interest in finding the right balance of protection will be higher, as the effects that a disproportionate protection potentially carries, will be felt equally in all Countries regardless of their condition of development. Additionally, I have showed that it will generate an overall reduction of deadweight loss (this is equal to higher access in the developed world to technology). Please, join PRO HUMANO GENERE in this effort.

This proposal has generated a great deal of interest in countries’ representatives, academia and civil society. I want to thank those that are part of Pro Humano Genre and those that have, by supporting it, made this possible. Together we pursue this objective: a fair patent system. But we have decided to move forward. Following this first example we have decided to spot other issues to advocate for. We are certainly growing. We at Pro Humano Genere want to change IP globally.

The proposal is to make the system fairer for developing countries and at the same time have a more efficient and comprehensive reward to innovation (and thus convenient and fair as well for the developed world -much of the innovation is now only supported by the US). In a proportional system, equitable in the way the humanity as a whole compensates the innovators, the interest in finding the right balance of protection will be higher, as the effects that a disproportionate protection potentially carries will be felt equally in all countries regardless of their condition of development. This is a conceptual advantage of a proportional system on regard to the possibility of more harmonization (it could be good for the developing world if the system becomes fairer).

We have lunched the #FairInnovation, #EfficientInnovation, #BothSidesAreRight, and #ProportionalityIsTheAnswer campaign that will start with the 2015 Ministerial Conference of the WTO in Nairobi and will advance till the next Ministerial Conference of the WTO, in two years, to support the proportionality proposal. For other initiatives go to our webpage. Please support Pro Humano Genere using the hashtag #cambiarelmundo and #CabildeoConsciente.

Thank you for sharing this dream.

Esteban Donoso

President of the board, Pro Humano Genere

VISIT OUR WEBPAGE www.tripsplusultra.com FOR AN INTERACTIVE REVIEW OF THE TRIPS PLUS ULTRA PROPOSAL!