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Saturday, 28 November 2009

Manchester misleads on patents

The IPKat's inbox has been swamped with emails from readers complaining about the Manchester Manifesto. To get some idea of what they've been complaining about, you might want to start with this article, "How science is shackled by intellectual property: Ownership rights pose a real danger to scientific progress for the public good", published in The Guardian on Thursday and written by John Sulston, Sarah Chan and Professor John Harris.

Right: The IPKat is glad that IP folk's view of Manchester (right) isn't as grim as the Manifesto's view of IP
It reads in relevant part as follows:
"The idea of ownership is ubiquitous. ... However, there is a profound problem when it comes to so-called intellectual property (IP) – which requires a strong lead from government, and for which independent advice has never been more urgently required. ...

The myth is that IP rights are as important as our rights in castles, cars and corn oil. IP is supposedly intended to encourage inventors and the investment needed to bring their products to the clinic and marketplace. In reality, patents often suppress invention rather than promote it: drugs are "evergreened" when patents are on the verge of running out – companies buy up the patents of potential rivals in order to prevent them being turned into products. Moreover, the prices charged, especially for pharmaceuticals, are often grossly in excess of those required to cover costs and make reasonable profits.

IP rights are beginning to permeate every area of scientific endeavour. Even in universities, science and innovation, which have already been paid for out of the public purse, are privatised and resold to the public via patents acquired by commercial interests. The drive to commercialise science has overtaken not only applied research but also "blue-skies" research, such that even the pure quest for knowledge is subverted by the need for profit.

For example, it is estimated that some 20% of individual human genes have been patented already or have been filed for patenting. As a result, research on certain genes is largely restricted to the companies that hold the patents, and tests involving them are marketed at prohibitive prices. We believe that this poses a very real danger to the development of science for the public good.

The fruits of science and innovation have nourished our society and economy for years, but nations unable to navigate our regulatory system are often excluded, as are vulnerable individuals. We need to consider how to balance the needs of science as an industry with the plight of those who desperately need the products of science.

Clearly it is vitally important that we continue to protect science and enable it to flourish. Science and the many benefits that science has produced have played a crucial part in our history and produced vast improvements to human welfare. It would be remiss if we failed to recognise the importance of science as an industry and investment in research to national and regional economic development; but against these economic concerns (individual, corporate and national) an overriding consideration must be the interests of the public and of humanity present and future. Science as an industry may be booming, but the benefits of science need to be more efficiently and more cheaply placed in the service of the public.

This is of particular concern in the developing world, where drugs that are routinely available in high-income countries are unaffordable or inaccessible, and treatments for diseases of the poor are simply not being developed due to lack of a viable market. Existing inequities in knowledge capital make developing nations hostage to more technologically advanced countries for their basic health and development needs, and restrict the participation in research that would allow them to redress this imbalance.

For science to continue to flourish, it is necessary that the knowledge it generates be made freely and widely available. IP rights have the tendency to stifle access to knowledge and the free exchange of ideas that is essential to science. So, far from stimulating innovation and the dissemination of the benefits of science, IP all too often hampers scientific progress and restricts access to its products.

The Manchester Manifesto, produced by an interdisciplinary and international group of experts and published today, explores these problems and points the way to future solutions that will more effectively protect science, innovation and the public good. It calls on all interested parties to find better ways of delivering the fruits of science where they are most needed".
The Manchester Manifesto can be accessed here.

The following day, acting with a remarkable degree of alacrity, the Chartered Institute of Patent Attorneys (CIPA) responded as follows:
" ... CIPA has welcomed ‘Who owns science?’, the Manifesto published by Manchester University on Thursday 26 November, but has criticised the authors’ views on patents as ‘ill-informed and misleading’.

CIPA’s vice-president Alasdair Poore praised Manchester University for its attempt to stimulate debate about how science is used for the benefit of humanity. ... “Nobody would challenge their laudable aim of making ‘a difference in the real world as to how science is used, and hence to build a better future for Humanity’. However, some of the authors’ comments on intellectual property ownership – patents in particular – are ill-informed and misleading.

“Contrary to what is stated in the report, ... IP rights do not ‘have the tendency to stifle access to knowledge and the free exchange of ideas that is essential to science’. Publication and knowledge-sharing is at the heart of the IP system. Not only is there a vast amount of scientific and technical information available from patent databases around the world, but the majority of it is not available from any other source.”

The Manchester report criticises the patent system on a number of counts, all of which CIPA repudiates:

• Patents can't be used to prevent a product coming onto the market - if demand for a product is not met on ‘reasonable terms’ then, subject to certain safeguards, anyone can apply to the IPO for a compulsory licence under the patent. The competition authorities can also take action if patents are abused.

• Patents do not prevent universities from carrying out research - acts done for ‘experimental purposes’ don't infringe.

• Patents enable research bodies like Manchester University to earn a fair return from technical applications of their work, so that money can be ploughed back into further research. Manchester has its own technical transfer operation which depends on patents for its success.

• The alternative to patenting university research is that big business would get a free ride - they could use the work of universities to make profits for themselves.

• Publication of patent applications is automatic. The applicant has no choice in the matter if he wants to get a patent. Claims that the IP system inhibits knowledge-sharing are just wrong.

CIPA also accuses one of the report’s signatories, Joseph Stiglitz, of continuing to mislead the public in his claims that human genes and other life forms can be patented. “Back in 2006,” says Alasdair Poore, “CIPA wrote a letter to the New Scientist, correcting Stiglitz’s claims that plants or foodstuffs, such as turmeric and Basmati rice, were being patented. This new report is making similarly misleading claims about human genes, stating ‘some 20 per cent of individual human genes have been patented already or have been filed for patenting.’ That is not true. We said it in 2006 and it’s still true in 2009: no patent system in the world allows that. Patents are granted only to inventions that are not previously known: no innovation, no patent.”

According to CIPA, the Manchester Manifesto also repeats misleading views about access to pharmaceuticals in the developing world, alleging that the global intellectual property regime denies poor people access to drugs. “Without an effective patent system, who would have made the necessary investment to discover and manufacture those drugs?” asks Alasdair Poore. “It’s politics and economics that block access to drugs for the world’s poor, not the IP system.”".
The IPKat feels that the patent professions are perfectly capable of defending themselves, but he wishes that they only had to to so when the attack was properly based.


Paul Jakma said...

Your comment, both of the CIPAs (which you presumably endorse somewhat, given you include it without critical word) and your own seem both patronising and childish.

Patronising, for telling a bunch of academics who have written a manifesto detailing their perceived problems with patents, that they're wrong, with only the most facile of reasoning to back that up. As if these people, law professors amongst them, were utterly ignorant and unable to have considered arguments such as "Businesses would get a free ride without patents on research", "patents get published", "experimental purposes are exempt". Worse, the manifesto you link to even contains points that already deal with such arguments, e.g. "Who owns science?" it asks, or "restrictions .. at any stage ... obstruct the flow of scientific information" - clearly they consider that science is built on more than just experimental research, or "information sharing ... can suffer .. [due] to patent requirements".

It's like neither CIPA nor you bothered to read the document. Granted, it needs much further elaboration, but the manifesto in greater part exists as a call to *further* research and debate.

2nd, childish: I write this with all due respect, but it seems that the CIPA reaction is akin to a child sticking their fingers in their ears "nah nah can't hear you". Here you have a document listing some problems, at least ones that are *perceived* by a range of academics, and calling for debate. CIPAs' reaction completely ignores that an eminent section of society perceives problems with patents, denigrates their document and then trots out the most simplistic platitudes. This completely fails to address the concerns of the manifesto signatories. Indeed, it adds little of use to the debate in any useful way.


Anonymous said...

Paul: it's rather ironic that you criticise CIPA for "facile" reasoning, when the Manchester "paper" appears to contain nothing but unsupported assertions. Mind you, one definition of facile is "easily accomplished"!

On your point about law professors being signatories, it is very depressing that a fine University like Manchester should have academics who appear to be prepared to put their name to documents that are (I hope) outside their areas of expertise.

Interestingly, it offers an LLM in IP law:

I wonder who teaches it and what they think?

Anonymous said...

I have read The Manchester Manifesto “Who Owns Science”. A grand title but none of my friends and colleagues in Manchester seems to know anything about their own manifesto. A touch of academic arrogance perchance?

It looks like a research grant to me! I hope the tax payer has not paid for this twaddle, when scientists are crying out for funding.

I have to say I am more than a little shocked at its naivety and lack of rigour. It could have been written by a group of 16 year olds. Is there anything new in this document? To me the points made, issues raised etc. are long in the tooth and as a document it adds nothing of value to the debate. Sort of a nice brief review document suitable for ...err....a grant application. It’s not a good advertisement for Manchester and this should not go unnoticed by the wider scientific community in Manchester even if it is largely ignored by the wider global community.

It’s amusing and mildly irritating to me that academics always seem to refer to science as if it is a sort of religion and they are the high priests. What is science anyway? Who owns it is a facile and largely pointless question.

What we can be sure is that scientists do not and should not own it (I am a “scientist” by the way). We are good (mostly) at doing science but we are largely woefully inadequate at delivering solutions for humanity based on science. The present advanced position of human endeavour is, in no small part, down to a largely effective IP system that has improved dramatically over the last 100 years. Without it we would be nowhere close to where we are today. Why ? Because we would not have the advanced state of human achievement that we have today and we would also not have the science base that we have today. The IP system has had a significant part to play in fostering this development and growth, a fact that is often overlooked by those who perceive problems with the current global situation, for whatever reason or motivation, which largely have no root in the current IP system and its function.

For those who work in the IP system this is not an effective attack on the system. So, no need to worry unless Peter Mandelson gets to read it!

Anonymous said...

I wonder how bashing The Manchester Manifiesto is "supporting prudent IP" use?

Paul Jakma said...

Again, this document clearly is not about *making* the argument, but a statement of concern (which requires no further substantiation) and a *call* for further argument.

I note again the failure of respondents here (who I presume are part of the "IP" profession) to take this document for what it is and enter the debate, choosing instead to react defensively, indeed even aggressively.

Anonymous said...

Hmm, whilst I agree with some of the CIPA's response, I think it is perhaps a little too glib.
Firstly, how many compulsory licences have been granted on the "demand not being met on reasonable terms" basis?
Secondly, "big business" would only get a "free ride" on the basis of material that has been disclosed to everyone. If all "big business" gets the same free ride, we get the phenomenon known as "competition". It's regarded by some theorists as a good thing.

John Harris, John Sulston & Sarah Chan, on behalf of the Manchester Manifesto Group said...

It is not surprising that the inbox of an organization of patent attorneys is “swamped” by complaints about those who presume to criticize the social value and public interest in the perpetuation of the present system of Intellectual Property Law. However, it was not the purpose of the Manchester Manifesto to abolish intellectual property, nor yet its governance by laws; but to bring these far more into line with the public interest – and indeed with the interests of the goose that lays the golden eggs and creates the discovery on which not only the IP Law industry, but civilization relies, namely science and technology research.

It is disappointing to find CIPA, and others who represent the community of IP lawyers, in apparent denial of the problems that the international operation of IP law has and continues to generate. This is not the place for a catalogue, but all will be familiar with the attempt of several pharmaceutical companies, in 2001, to use the TRIPS agreement to prevent South Africa and Brazil from using generics in those countries and hence to deny life-prolonging drugs to millions of AIDS victims. Likewise the international scientific community has spoken out on the negative effects of IP on scientific progress. The Royal Society report “Keeping Science Open”, published in 2003, noted that while patents encourage invention and exploitation they usually limit competition and “[t]hey can make it impracticable for others to pursue scientific research within the areas claimed, and because inventions cannot be patented if they are already public knowledge they can encourage a climate of secrecy”. On the impact on developing countries, the Royal Society stated that “it is clear that the benefits that (IP) brings to many developing countries may be outweighed by the disadvantages”. The report concluded that “Advances of technology and commercial forces have led to new IP legislation and case law that unreasonably and unnecessarily restrict freedom to access and to use information. This restriction of the commons in the main IP areas of patents, copyright and database right has changed the balance of rights and hampers scientific endeavour. In the interests of society, that balance must be rectified”. Six years later the IP industry have done nothing to put their house remotely in order, hence the need for the fresh look and impetus given by the Manchester Manifesto. If this debate has brought home to the IP community that all is not well it has already achieved an important objective.

In a more detailed response on our website, we consider and briefly rebut the points made in this posting and hope that there are out there intellectual property lawyers who would like to protect all relevant interests, not simply the interests of those who profit from the present system.

In conclusion, we welcome the opportunity to bring these issues more firmly to the attention of the IP Law community. We appreciate that CIPA represents a body of expertise in the specialized area of IP law, and that each of our communities has its own vested interests; but the practical problems raised by the current operation of the IP system, and the pressing issues of human welfare and global injustice that it reinforces (if not creates) cannot be ignored. We are not proposing the entire abolition of IP law. What we envision is working together with those who are able also to look beyond the intricacies of the law itself to see the very real problems that we face, and to attempt to find solutions to them. If the Manchester Manifesto has opened even a small window of opportunity for this dialogue to commence, then it has done its job.

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