Commentary | Fifty Years Later, the IP, Technology Transfer, and Development Debate Lives On
While several events are being held this month to mark the tenth anniversary of the Doha Declaration on TRIPS and Public Health (2001), another significant milestone in the evolution of the international intellectual property system has gone largely unnoticed: the fiftieth anniversary of Brazil's submission to the United Nations General Assembly (UNGA) of a draft resolution on patents, technology transfer, and development.
The Brazilian submission, tabled in November 1961, prompted a month's worth of intense deliberations that culminated with the UNGA's adoption - by consensus - of resolution 1713 (XVI), entitled ‘the role of patents in the transfer of technology to under-developed countries'. The resolution was adopted on 19 December of that same year.
The Brazilian initiative addressed for the first time the role of intellectual property rights - specifically patents - in technology transfer to developing countries, specifically in the wider context of the United Nations and international economic discussions. The deliberations surrounding the resolution have been well documented in recent years, particularly the manner in which the final resolution ended up evolving substantially from Brazil's initial draft.
Ultimately, the resolution set in motion the elaboration of various studies on the topic. It also resulted in several initiatives that still resonate today in discussions being held in various contexts, such as the WIPO Development Agenda.
Major changes since 1961
Undoubtedly, the world has seen major changes since the adoption of the 1961 resolution. A number of developing countries, particularly in Asia, have significantly developed their manufacturing and technological capabilities in the span of just a few decades. Information and communication technologies have opened new horizons for reducing the knowledge gap and the traditional North-South divide. Trade liberalisation has been a powerful engine of globalisation, while promoting innovation has become a key policy objective in many countries.
At the policy level, a better understanding of these issues is beginning to take shape. It has become abundantly clear that both technology acquisition and technology transfer are neither automatic nor costless. Rather, their success requires the development of additional technical and institutional capabilities. One-size-fits-all approaches have also proven, in many cases, to have detrimental effects. While multilateral processes cannot provide all the answers, meaningful international action for promoting technology transfer within a general technology acquisition framework is taking shape, as reflected in the recent establishment of a Technology Mechanism under the United Nations Framework Convention on Climate Change (UNFCCC).
Despite this broader picture, patent ownership continues to be heavily concentrated, with industrial and some emerging economies accounting for most new patenting. According to a World Intellectual Property Organization (WIPO) report published in 2010, just five countries - the United States, Japan, Germany, China, and the Republic of Korea - accounted for 71 percent of filings under the Patent Cooperation Treaty (PCT) in that year.
Another report by the United Nations Environment Programme (UNEP), the European Patent Office (EPO), and ICTSD found that five industrialised countries - Japan, the United States, Germany, the Republic of Korea, and the United Kingdom - alone accounted for almost 80 percent of patent applications in clean energy generation technologies.
This trend is also reflected in global R&D spending. While the 2011 World Intellectual Property Report found that the geography of innovation has become more internationally diverse in recent years, their findings also indicated that high-income countries continue to dominate global R&D spending (around 70 percent of the world total).
Fifty years later, many of the same questions remain
Today, technology transfer and more broadly improved access to technology both remain pressing concerns in a variety of international forums dealing with climate change, health, trade, and intellectual property.
The international community continues to grapple with some of the same fundamental questions that were raised fifty years ago, such as: What is the best way to promote technology transfer to developing and least developed countries? What are the most effective incentives to be encouraged and the barriers that need to be overcome? What is the exact role of intellectual property rights in this regard, and how can these better contribute to dissemination and technology transfer?
Empirical evidence shows that there are no simple answers to any of these questions. While intellectual property is an important driver of innovation, its role in the dissemination and diffusion of technology is markedly more complex because it varies from sector to sector, and is often difficult to isolate from other economic and institutional factors. Although licensing practices play a key role, there is still relatively little information about them.
A way forward
However, this does not mean that nothing can be done. The ideal objective of an intellectual property system is captured in Article 7 of the WTO's Trade-Related Aspects of Intellectual Property (TRIPS) Agreement: "the protection and enforcement of intellectual property rights should contribute to the promotion of technological innovation and to the transfer and dissemination of technology, to the mutual advantage of producers and users of technological knowledge and in a manner conducive to social and economic welfare, and to a balance of rights and obligations" (emphasis added).
The international community and governments can and should assist in devising the necessary options and taking the appropriate measures for achieving this TRIPS objective.
For example, the implementation of technology transfer provisions in international intellectual property instruments, such as article 66.2 of the TRIPS Agreement about incentives for technology transfer to Least Developed Countries (LDCs), can be significantly enhanced using today's improved understanding of how technology dissemination and transfer take place, and under which enabling framework.
In addition, availability and easy access to technological information in patent applications, often hailed as one of the patent system's key contributions to technology transfer, remains a daunting challenge, particularly for developing countries - despite the improvements brought by digitisation and automation in many patent offices.
The extent of disclosure of technological information in patent applications can also raise concerns, as such disclosure is often done to the minimum level necessary to acquire patent rights.
Furthermore, intellectual property laws in developing countries are generally set up as separate compartments, disconnected from national innovation systems and lacking the necessary checks and balances - such as competition policies, informed judicial entities, and active civil society groups - that do exist in industrialised economies.
They also often lack the same flexibilities, limitations and exceptions found in the legislations of developed countries. These can play a useful role in facilitating access to knowledge and technology and in building local absorptive capacity, which is a prerequisite for any effective technology transfer.
Finally, practical tools - such as patent landscapes and licensing surveys - are now available and can be more widely used to better inform a debate that should not be confined to categorical statements on any side.
This 50th anniversary reminds us that, despite changing circumstances, the global debate on technology transfer, intellectual property, and development has remained relevant. With fifty years' worth of lessons and experiences to draw from, the international community must now strive to find new solutions to the many challenges still facing international action in this field.
Ahmed Abdel Latif and Pedro Roffe are, respectively, Senior Programme Manager and Senior Associate, Innovation, Technology and Intellectual Property at the International Centre for Trade and Sustainable Development (ICTSD) in Geneva.
The text of UNGA Resolution 1713 on "the role of patents in the transfer of technology to under-developed countries" is available at: http://www.un.org/documents/ga/res/16/ares16.htm
Neil Weinstock Netanel ed. (2008),The Development Agenda: Global Intellectual Property and Developing Countries, Oxford University Press.
PCT Yearly Review: The International Patent System (2010), p.12 available online at: http://www.wipo.int/ipstats/en/statistics/pct/
UNEP, EPO and ICTSD Report (2010). Patents and Clean Energy, Bridging the Gap Between Evidence and Policy, p.64 available online at: http://www.ictsd.org/themes/natural-resources/patents-and-clean-energy-b...
World Intellectual Property Report (2011). pp.33-34, available online at: http://www.wipo.int/econ_stat/en/economics/wipr/
Suerie Moon (2011), Meaningful Technology Transfer to the LDCs: A Proposal for a Monitoring Mechanism for TRIPS Article 66.2, Policy Brief 9, ICTSD.