Pressure is growing for a major shift in international intellectual property rules that addresses the interests of the poor.
For the last two years, members of the World Intellectual Property Organization (WIPO) have been discussing, somewhat acrimoniously, the so-called 'development agenda'. This was initially proposed by a group of developing countries that believed WIPO's stance on intellectual property rights (IPR) issues was unduly influenced by the interests of developed countries and powerful companies seeking to strengthen their global intellectual property rights.
Last month there was a significant breakthrough in these discussions when various important new principles governing WIPO's approach were agreed. These included taking into account different levels of development, preserving a balance between costs and benefits in setting new IPR rules, and the importance of preserving the 'public domain' of knowledge.
A few years ago such discussions would have been unlikely to produce anything useful. Strong pro-business patent legislation and guidelines — such as those in the Trade Related Aspects of Intellectual Property Rights (TRIPS) agreement that countries in or joining the World Trade Organization must accept — were promoted as an essential component of efforts to promote economic development, irrespective of whether countries were rich or poor.
But patent rules have proved to be an Achilles heel of globalisation. A series of widely publicised cases have highlighted the social injustices that accompany globalisation. These range from the appropriation of indigenous knowledge by multinational companies, to the way that patents allow pharmaceutical companies to price essential medicines out of the reach of the poor.
All this means that public support for a shift in IPR rules has never been stronger. The challenge lies in ensuring that any new rules continue to encourage a steady flow of technological innovations, whilst shifting the balance of who benefits from such innovation more explicitly toward the poor.
The Novartis case
The Novartis case
In a recent court case, Swiss pharmaceutical company Novartis appealed the Indian government's decision not to extend its patent for an anti-cancer treatment called Gleevec (see Petition supports India's generic drugs). The company argues that significant improvements to the drug warrant extending the life of the patent. It is challenging the section of India's new patent law that it believes is responsible for the rejection of its patent.
Novartis says strong patent protection is essential to encourage private investment in research for new and improved drugs. This section of the law — which seeks to limit patents granted for marginal changes to existing medicines — does not comply with the TRIPS agreement, says the company.
Critics, including Indian and international non-governmental organisations, argue that if the courts approve the company's demands it will be harder for Indian companies to produce the cheap generic versions of existing drugs that are used across the developing world to treat diseases such as malaria and HIV/AIDS.
It is a compelling case, made even more so by the withdrawal of an independent committee report commissioned by the Indian government which was initially used by Novartis to support its arguments. This followed the revelation that critical parts were taken almost word-for-word from a study partly financed by the pharmaceutical industry (see India 'needs independent ethics body' says watchdog).
Even in the United States, a number of recent court decisions have weighed in favour of the public interest. Reports by the 2002 UK Commission on Intellectual Property Rights and the World Health Organization's Commission on Intellectual Property Rights Innovation and Public Health have also helped to shift opinion in favour of a more balanced approach to intellectual property that takes account of the needs of poor people in developing countries.
But the pharmaceutical industry is not going to give up easily. With the number of new drugs continuing to fall, the pressure is on to squeeze profits out of existing drugs. This means continuing to resist changes in national patent law that the industry finds unwelcome, such as those illustrated by the Gleevec case, as they might be copied by other developing countries.
The industry is also keen to strengthen existing patent rights, such as by supporting bilateral trade agreements that impose obligations on developing countries that go beyond TRIPS and would, for instance, outlaw the disputed provision of India's patent act.
Hence the force with which Novartis has been defending its claims in India, despite the damage it has caused its public image. Similar battles are being fought in the agri-biotech sector, where companies are resisting demands to grant farmers the right to use and sell seeds generated from patent-protected crops.
Ultimately it is not public image or even industry profit that matters. It is whether the global industrial and economic capacity can be harnessed in a way that ensures, among other things, that the world's poor have access to the medicines and food that they need, at prices they can afford.
That does not mean we should eliminate patents — it remains appropriate that those responsible for significant innovations are rewarded for their efforts. But it does require a shift in the way that patent legislation is conceived.
Governments should spend less time seeking ways to tighten legislation that primarily benefits private companies, and more on creating IPR rules that genuinely serve development. Such legislation should take full account of the context in which the rules are applied and the ways in which the benefits of applying IPR to innovation are distributed.
That is why the recent developments at WIPO are hopeful. Other promising proposals include treaties for medical research and development and access to knowledge that would rebalance the IPR system in a more fundamental way.
With IPR issues rapidly climbing the political agenda in regions such as sub-Saharan Africa, the top priority for governments and their policymakers should be to seek agreement on a workable, pro-poor treaty. That might go some way to restoring confidence in globalisation in the eyes of an increasingly sceptical public.