Epo Interviews

Professor Paul A. David

The University of Oxford & Stanford University
The patent regime has acquired a life of its own, independent of the system‘s original purpose, namely the encouragement of invention and the public revelation of novel and useful products and means of production. Patents traditionally have provided a template for other inventors, by disclosing the idea and stimulating the creation of alternative ways to achieve its technical effects, and further elaboration on the basic invention. Simply showing that a particular addition to the state of the art was feasible often proves to be an effective goad to the ingenuity of other inventors. In this way, the system not only tended to promote technological progress, but did away with the wastage of resources involved in the rediscovery of knowledge that had already been gained." (p. 65)

"Indeed, in some industrial fields the rapidly growing volume of patenting in recent years reflects the rise in the use of patents as strategic tools in business competition, not as a source of information about inventive possibilities, and not even as a means of reducing the uncertainty of investing in creating new, commercially applicable knowledge through science and engineering research. The impetus for this increasing resort to patenting is not the opening of a richer technical field for innovation. Rather, the impulse is a defensive one – protecting existing market positions and profit streams by threatening potential entrants to one‘s profitable lines of business, raising existing rivals‘ costs by forcing them into expensive litigation, and protecting oneself against such threats by acquiring a patent portfolio that represents an apparent “retaliatory capability“. These offensive and counter-offensive strategic deployments of monopoly rights granted under the patent system are interlocked and mutually reinforcing, in as much as the expectation of attack (and retaliation) induces defensive investments."

Professor Jean-Jacques Duby

President, Observatoire des Sciences et des Techniques, previously Director General of Supélec (Ecole Supérieure d’Electricité)

Jon W. Dudas

Under Secretary of Commerce for Intellectual Property and Director of the United States Patent and Trademark Office

Professor Jens Erik Fenstad (p. 102)

Chairman, World Commission on Ethics of Scientific Knowledge and Technology (COMEST)
"I believe that we are witnessing an unusual period, where there are many immature industries, such as biotechnology, information technology (system software) and communications. When immature technologies are evolving, there is a desire to patent basic knowledge and techniques, rather than the end-products that are the traditional subjects of patents. This can hamper the expansion of the knowledge base inside the research system by keeping basic knowledge restricted, inaccessible to overstretched academic budgets. However, it can be advantageous to some institutions; for example, Stanford University has earned vast sums of money from the gene splicing technique." (p. 103)
"The patent system should first of all find a means to protect the free development of a basic knowledge base, so that these building blocks of information are freely available in the public domain. This knowledge is an invaluable part of humanity and needs to be protected from mismanagement by scientists themselves and from exploitation in the market." (p. 104)

Hervé Gallaire

Former President, Xerox Innovation Group, and former Chief Technology Officer; Member Academy of Technologies
" In the United States, I see as an important event the acceleration in the use of intellectual property in ways for which it was perhaps not intended, changing the ways in which intellectual property is perceived. Initially patents were essentially a way of protecting your invention; today they are also used for generating revenue directly, creating additional value for the corporation. This has been a gradual shift in the USA that has reached very significant proportions today. A lot of activity in intellectual property relates not so much to the need for it in your own products as to intellectual property for the sake of intellectual property that can create value through licensing or otherwise. Another important factor in the USA is the increased use of litigation, which is a threat, and has an economic impact for both small and large companies. Litigation is always very expensive, and it could even become an inhibitor for business, when there is a constant threat of potential litigation from people who are not necessarily engaged in business activity but have acquired intellectual property rights solely for the purpose of extracting money from businesses. This puts pressure on everybody to enter into a patent race, which is not in itself a healthy goal." (p. 106)

Nicholas P. Godici

Birch, Stewart, Kolasch, & Birch; Former Commissioner of Patents, USPTO

Dr Bert Gordijn

Department of Ethics, Philosophy and Medicine, University of Nijmegen

Dr Loucas Gourtsoyannis

Director, NORMAPME (European Office of Crafts, Trades and SMEs), Brussels

Freek Posthumus

eBusiness Manager, NORMAPME
"For small and medium-sized enterprises (SMEs) the software patent situation is a concern. Whilst not historically defining, it illustrates the apparent lack of interest in the position of European SMEs. It is not in the interests of small companies to have patents in the way the European Commission is proposing. There are 350 000 small businesses working in the software industry whose interests would not be met by the proposals, and five main companies, based in the United States, who would benefit from them." (p. 119)
"Patents and innovation are not addressed in the one place where it hurts: the micro-companies. In these companies innovation is not the main objective, but application of innovation is the key." (p. 120)
"Patent attorneys are sitting on golden chairs, blocking access to the system. They are simply too expensive, and their function of easing into a system has grown into a kingdom on its own." (p. 121)
"A major problem is the positioning of big companies, which often starve smaller companies out of the system and block their innovation with their financial muscle." (p. 122)
"Seventy percent of European patent applications are filed by SMEs, but only 30% of their patents are granted. This represents not only an enormous drain on European resources, but also begs the question: Where will patents come from over the next 20 years – if not, the EPO should diversify." (p. 122)

Professor François Gros

Honorary Permanent Secretary of the Académie des Sciences; Emeritus Professor at Collège de France, Paris

Dr Roland Grossenbacher

Chairman of the EPO Administrative Council and Director of the Swiss Federal Institute of Intellectual Property
"We now appear to be close to or at the apex of the cycle, and what is important is how the decrease will be managed. This decrease could be either positive or negative. There could be controlled consolidation and perhaps even development of the system, by removing the ballast and keeping the essence – what societies perceive to be the requirements to get equitable treatment for all involved. Alternatively, there could be an abrupt catastrophic decrease if the system were to implode. (…) Where intellectual property protection degenerates into red tape, it should be abolished. " (p.130)
"The United States will continue to patent everything, although one can detect in practice a slight tightening of the system. The software industry is so strong and there are so many legal and economic interests pushing for the patenting of business methods that the scope of what can be patented is likely to increase. The United States Patent and Trademark Office (USPTO) lacks the staff and money to seriously increase its quality, so there is likely to be a lowering of the entry barrier but with a desire for enhanced protection and no exceptions." (p.131)
"The classical message regarding patents is that in order to prosper, the more patents the better, but this is not always the wisest advice – sometimes it might be better to avoid the intellectual property system altogether." (p. 132)

Örjan Grundén

Patent barrister, President, Association Internationale pour la Protection de la Propriété Intellectuelle (AIPPI)
"This means that once a European patent is granted, the enforcement goes back to the traditional national systems. If there are disputes about what a patent covers, what rights they give etc. and there is a need to litigate, there is no longer a common system but a number of disparate national systems. We clearly need a European patent system including the post-grant phase. To achieve a common European system of patent enforcement in the next twenty years is a key issue." (p. 136)

Dominique Guellec

Chief Economist, European Patent Office
"It is necessary to facilitate and accelerate refusals of bad or abusive applications. Measures should be taken to deter applications with thousands of claims etc., which are becoming more and more common. Measures should be taken to discourage applications filed with no hope of grant, just in order to gain some exclusive right for a couple of years, during the examination procedure."
"The influence of applicants and attorneys on the system should be balanced by other interests, such as the interest of customers. Ultimately, customers pay for the system, as they pay for the extra margin on the price of goods allowed by the market exclusivity coming from patents. Having representatives of customers groups participating in consultative bodies involved in the patent system would be a significant move in the right direction." (p.141)

Dr Francis Gurry

Deputy Director General, World Intellectual Property Organization (WIPO)
"(…) one might project that, over the next 20 years, the boundaries between the different forms of intellectual property are likely to become increasingly blurred. The world of copyright has become more industrialised and, as patents are granted on computer software, the boundary has become fuzzier."
"A major challenge is how to reconcile certain conceptual problems with intellectual property. Intellectual property has been largely designed for and applied to the Western knowledge system, based on an individual creator and an idea, invention or creation – ie knowledge born at a given moment in time. The length of protection is measured from the formalisation of that moment of creation. This contrasts with traditional knowledge, which is collectively generated and managed and often has no known starting point. It is often based on intergenerational transmission, and the collective nature of its generation and preservation may require a different approach from the intellectual property system. Until recently this area has been neglected, and there was historically no international recognition of the contribution that traditional knowledge has made to humanity." (p.147)

Walter Holzer

Patent attorney, formerly President, epi
"(…) Awareness of the patent system has changed. People are using patents as an economic tool, as a means to raise venture capital, or as security for obtaining loans." (p. 151)
"It (the EPO) is responsible for the quality of patents – unless they are of high quality their market value would not be appropriate, and in litigation they would not stand up to expectations."
"At present we live with a system of ‚virtual‘ patent protection, in which filing, search and publication are the most important aspects – the grant procedure is not so important since it takes a number of years. What is virtual is the preliminary protection granted once the application has been published. Some people feel quite happy with applications searched and published. These pose a burden on competitors, because they have to obey the application as they can never be sure if it will be successful at the end, so the competitor has to work around it. This also induces research efforts by competitors. The patent system is not a secret system – everything is out in the open. The patent is not the only product, more important than the patent is the know-how behind the patent. The patent is an abstract tool in a metalanguage, and the actual technical content may be hidden – the know- how may be acquired from the patentee when acquiring a licence, but the patentee may also keep it to himself. Licensing is not the main issue in the European patent system; it is a side aspect." (p. 152)
"Certain industries, such as IT and electronics, are characterised by a very high speed of development, and the industry has to ensure that it invents faster than the goods are commoditised. The patent system is not made for short-term developments and rapid overturn; it is a relatively slow and conservative system: a luxury for very important inventions. 50-60% of patents filed do not make it to grant, and not all innovation gets filed. This means that in the high-speed technologies it may be more expedient to obtain a patent for a standard, rather than for the goods themselves, or to rely on trade marks or design protection instead of patents which are of a relative value in these fast moving industries." (p. 153)
"The patent system is a capitalistic system that works according to its own rules. There are believers and non-believers in the patent system, and if you are a believer you file for patent applications, in order to make money. It is the virtual protection we talked about that is so important, as it enables businesses to conclude contracts, for example. The patent world is a hermetic world of a few tens of thousands of people, approximately 50- 60,000 people including all the patent attorneys and patent office staff. For the world of believers, no better system has been developed to protect technology." (p. 154)

Brad Huther

President and CEO, International Intellectual Property Institute, Washington
"There are some voices saying that the patent system blocks innovation: there is a certain element of truth in this. It is blocked because those with intellectual property portfolios have tended to put too much emphasis on monopolies and enforcement." (p. 160)

Dr Masao Ito

Special Advisor, RIKEN Brain Science Institute, Japan
"We have concerns that patenting fundamental materials such as genes and proteins may delay the progress of science, but competition from other institutes forces us to promote patenting. The patent system will have to be careful to avoid the situation of a tangled web of patents, and in my opinion it should be reviewed. The limits of patentability are set too close to basic research and should be kept more in the area of applications, where there are clear benefits." (p. 162)

Dr Roberto Jaguaribe

President, Brazilian National Institute of Industrial Property (INPI)
"Our own perception is that for some time now the industrial property agenda (and to a large extent also copyright and related issues) has been drifting away from its original purpose and been catering increasingly to rent seekers and special interests. Industrial property is not the codification of natural rights, but an instrument for technological, industrial and ultimately economic and social development." (p. 167)

Michael Kirk

Executive Director, American Intellectual Property Law Association (AIPLA)
"A fairly recent phenomenon is that individuals and firms are purchasing patent portfolios of companies that have gone into bankruptcy. These entities do not obtain these patents to market products, but rather obtain them to determine where they can be asserted. Also, some law firms are seeking out patents on which to base lawsuits on a contingency fee basis. This seems to be a growth industry, and the cumulative impact is really beginning to be felt. One way in which this practice could be ameliorated would be to adequately fund the USPTO to make sure that no patents of questionable validity become involved in such suits." (pp. 174-175)

Professor Peter Lachmann

Professor of Immunology, University of Cambridge, former President, UK Academy of Medical Sciences
"Patents are a public good, a method for putting information into the public domain. The system has frequently been abused. A considerable problem is the breadth of patent claims. This has given rise to endless litigation, which is often unsuccessful but nevertheless wastes valuable resources. In academia we see much merit in patents that are more narrowly defined and less likely to provoke litigation." (pp. 176-177)

Professor Jean-Yves Le Déaut

Member of Parliament, Socialist Party, Assemblée Nationale
"We will continue to make advances in technology and barriers will be broken down. Even now, we can predict what the special nature of this development will be: tomorrow‘s society will be a knowledge-based one in which patents will have an even more important role.
Nevertheless, this development gives rise to two major risks:
The first risk is that the places where knowledge is acquired and transferred, universities, research institutes and large technological complexes, will be concentrated in only a few privileged parts of the globe. (…)The second risk is that, by favouring certain large industrialised or emerging countries, the knowledge society may widen the gap between those states and other countries and regions, particularly in the southern hemisphere. This could have a dramatic effect because some of these make their living solely from agriculture." (pp.180-181)
"the patent system must not be used to create a monopoly on knowledge, and thus intellectual property, in the patent portfolios of certain large international groups. Nor may it interfere with the freedom to carry out research on the basis of the knowledge acquired. Let me give two examples to illustrate the point:
The first example relates to the patentability of software. IT research must be rewarded by the protection of inventions, just as in other scientific areas. However, if almost all patents are held by only a small number of large companies, they will ultimately block any new research by prohibiting the use of certain basic knowledge protected by patents. The patent system in this field must, to my mind, be developed into a system similar to that for plant variety certificates. The basic rule would be to grant a patent to the inventor but not prohibit someone else from using the invention to obtain further knowledge.
There is a lot of foul play in today‘s software industry: a person with control of technology may take action to rule out the compatibility or interoperability of other similar systems. Keeping source codes secret is a serious impediment to technological development. Free software guarantees the growth of knowledge more effectively." (pp.181-182)
"To summarise, the two major risks in the future will be: (i) a concentration of knowledge and intellectual property in the hands of certain multinationals, with the result that research is concentrated and quickly stagnates; and (ii) the socio-political and economic effects of such a concentration of intellectual property and key technologies, which could put the southern countries in an even more difficult position as regards their development chances. This would inevitably lead to greater international insecurity." (pp.182-183)
"The immediate benefits of the intellectual property system are not – unfortunately! – designed to promote the general interest of all mankind in preventing the planet‘s decline." (p.183)

Professor Joel Lexchin

School of Health Policy and Management, York University, Canada

James Love

Executive Director, Consumer Project on Technology (CP-Tech)
"(…) Sometimes very trivial events get big media coverage. For example, patents on making a swing move sideways and one
for a peanut butter jelly sandwich – part of the rash of patents granted by the USPTO – have undermined the idea that a patent is something given for an extraordinary scientific and technical ability and that inventors are special people. The purpose of a patent is now regarded simply as a rent- seeking activity, which has anti-competitive business uses. A problem is that practitioners are constantly pushing the envelope regarding what should be patented, so affecting the bona fide activities of the patent system." (p. 191)
"Open source models, the open access publishing movement, the human genome project, internet protocols, all offer very visible and widely respected models and ideas that can be connected to models that promote innovation yet enable information to remain utilised in the common domain. Eric Raymond popularised the idea that with enough eyeballs all bugs are shallow, and the open source movement offered an alternative to the Microsoft model, one which encouraged everyone to copy, change, improve and develop the model in a fully transparent manner. Napster is the rampant infringement of copyright, and it exposed people to what it would be like without intellectual
property rights – connected to music that was not contaminated by a business system. These examples have led to the discovery that bottom- up technologies provide a superior development model, avoiding the moral dilemmas apparent in the AIDS case in South Africa." (p. 191)
"With regard to how medicine and software play out in the future, it is helpful if everyone does things in the same way. The Apple iPod sells because it also plays MP3 products. However, it is becoming increasingly difficult to pick a standard that can be used by everyone, unless there are no patents or zero royalty rates on licensing, because people will not disclose what their patents are. We have a proposal regarding standards: if WIPO were to create a facility that advertised the standards then people would be forced to disclose their patents. CISCO has said that the typical mobile phone contains 500 patents, of which one third are owned by the developer of the phone, one third by its competitor and one third which are wilfully infringed. This we call the cookie strategy, which invites anyone to sue, knowing that the transaction costs are so high and the creation of bad faith so great that this litigation is unlikely."
"The idea of compulsory licensing has value: it has become so easy to obtain patents, and the sheer quantity so difficult to process, that as more people become aware of how the system works, numbers of patents granted in other parts of the world such as China are increasing and everybody is cranking out patents as fast as they can, resulting in patent thickets that cannot be circumvented. Big companies are reluctant to talk about compulsory licenses on the upstream side of the process because they do not want to eliminate licenses on the downstream side." (p. 193)

Dr Ramesh Mashelkar

Director General, Council of Scientific and Industrial Research, India

Dr Stephen A. Merrill

Executive Director, Science, Technology and Economic Policy, National Academies, United States
"During the late seventies and early eighties, there were a number of lawsuits in the United States, e.g. Polaroid vs. Kodak, as well as others involving Texas Instruments and several Japanese companies, that had a profound effect on the way patents were perceived. As a result of these cases, infringement became big business and caused people to sit up and take notice that patents not only carried substantial value but also considerable risk." (p. 200)
"The United States has gone through a number of cycles where patenting was not very important, where business policy was stable and the number of applications was manageable. What seems to have happened in the last twenty-five years is a reversal of that pattern, with patenting becoming increasingly important, growing reliance on its use, and escalating costs associated with the acquisition and exercise of IP rights. Although there is now considerable pressure on administrative agencies, courts and businesses to deal with the rising demands on the IP system, some people still predict that it is just another phase in the cyclical pattern of rising and falling activity." (p. 202)

Professor Eben Moglen

Professor of Law, Columbia Law School; Founding Director, Software Freedom Law Center
"A fundamental characteristic of the early patent system was the requirement for working models, i.e. you had to show the patent office that an invention actually worked. (…) Whilst Thomas Edison invented a range of industrial machinery and processes that changed the face of human cognition, each one patented, Jerome Lemelson, a benefactor of MIT, was able to patent the concept of a moving picture camera without the ability to turn it into reality, yet was able to claim royalties for the camcorder that materialised some time later. The ability to patent something for which you could not produce a working model changed the patent office into a place where ideas were registered as a gamble on future technological developments. Patent claims are now similar to the scope of real estate, with no particular incentive to avoid ambiguity – the broader and fuzzier the claim the better. This has bad results for those areas of technology which were previously beyond the scope of patents, such as computer software." (pp. 205-106)
"In the United States, the creation of a statutory twenty- year monopoly is legally distinct from all other forms of government intervention in the economy. Outside the patent sphere, the government is expected to be transparently responsible for its rule, with judicial review, but patent law is treated as a separate subject for secret development, with limitations on public access and access to information and no cost-benefit analysis." (p. 206)
"The tumult about the patenting of software reflects the views of a growing number of people questioning the patent system. These people are not just researchers, but from academia and the open source and free software movements. Now, when the doubts are also felt by companies as large as IBM, it is likely that the concept of a 20-year statutory monopoly on broadly defined claims is not going to work in an industry of vastly changing ideas. There is a problem of the anticommons1, where too many owners hold rights of exclusion, making the resource prone to underuse, and once such an anticommons emerges, collecting rights into usable private property bundles can be difficult, slow and brutal. Rights then become so severed that transaction costs in rights assembly inhibit new creativity." (p. 207)
"The patent system holds enormous industrial consequences, as the process of patenting actively engages the restructuring of the industry of the future. The question across Europe is how software policy affects the structuring of the software market. The creation of a monopoly often creates an oligarchy or oligopoly." (p.207)
"Computer software approximates to a language for the writing of technical knowledge. If this is the case, then, like mathematical equations, it should not be patented." (p. 208)
"A procedural challenge would be to tolerate transparency, openness and public involvement. At present, both the EPO and the USPTO operate in an environment of democracy deficit."

Hon. Gerald J. Mossinghoff

Senior Counsel, Oblon, Spivak, McClelland, Maier & Neustadt, P.C., Father of Trilateral.

Dr Farag Moussa

Honorary President, International Federation of Inventors‘ Associations (IFIA)
"The European patent system was also an improvement, but unfortunately the single Community patent has been a failure. UNICE, representing all industry, blocked the Community patent. It preferred “no solution“ to what it called a “bad solution“. Another difficulty with the patent system is that too much importance is given to national patent offices. If one takes any country, a national ministry (education, health, transport, etc.) has to deal with residents, they are the users. Patent offices are different; in most countries they mainly deal with foreign applications. The mentality in the patent offices is influenced by the fact that their users are mainly foreigners, not nationals or residents. There is therefore no emphasis on promoting inventive activity at the national level. The system does not support local innovation." (p. 216)
(…) At present the EPO is hearing the voice of only patent attorneys and big industry, which gives it a narrow perspective.
The EPO is not listening to the views of inventors, but to those who look at drafting details, at exceptions to the rules, etc., rather than at the very basic nature of the rules, at policy, economic development and financial issues. Independent inventors could agree with big industry if they were left alone to speak to each other, but this is not possible under the current structure of SACEPO, where no possibility for dialogue and negotiation exists. In WIPO there is a slightly different system, but it also suffers from a situation where generally the views of some of the main people behind the patent system are put aside. Micro and small industry is in fact not represented before the EPO or WIPO."
"I must stress that independent inventors constitute a large percentage of users: at least 30% of national patent filings in European countries. In Norway this percentage reaches 52%, in Ireland 43%"(p. 217)
Things will not change if the decision-makers remain the same. Representation is really the key! Until there is a drastic change in the system, which depends on governments in the final instance, there will always be unfairness and discrimination against those who can least afford the costs involved in the international patent system." (p. 218)
Usually, most patent offices are not interested in the social and societal influences of their activities; they focus 100% on the system alone. They are staffed by insular people who live in the world of patents, not that of inventions, not to speak of inventors. We consider that there are social values that have to be taken into consideration, and where necessary respected. Discussions related to drugs and health have started recently in patent forums, but not really on social and environmental problems or human rights." (p. 219)

Dr Tom Murray

President, The Hastings Center; Former Commissioner, National Bioethics Advisory Commission
"The most important question anyone can ask the patent office is whether it can maintain a neutral position. Sheer neutrality is impossible, and anyone who believes the patent office is neutral is deceiving themselves. For example, if someone approaches the patent office with a more effective form of torture, no patent office would agree to patent it. It is hard to see how any public body can sustain a position of pure neutrality. The question should be how far one travels from pure neutrality." (p. 224)

Sisule F. Musungu

Co-ordinator Programme on Innovation, Access to Knowledge and Intellectual Property South Centre, Geneva
"Perception is the biggest challenge to the system. Patents and patent policy are today seen as instruments of industry as a means of amassing profits without playing any important social role. For example, the US Congress is generally perceived and understood to pass laws that suit industry and pay very little attention to consumer and other interest. It is openly known how
much for example the pharmaceutical companies pay US Congressmen and Congresswomen from both sides of the political divide. Although this is a phenomenon in the USA, the problem affects the whole world because most international patent changes are driven by the USA.This may be applicable in some areas rather than all, but overall the whole system is
perceived as not serving the public in a way it was intended to do. If the system remains the same and the drivers of change remain the same, the perception problem will further increase." (p. 229)
"There are also serious conceptual issues that raise major challenges. There is a conceptual difference between granting patents to simply encourage investment and granting patents to encourage invention. Today, the expansion of patents and other reforms seem to be predicated on the investment theory of patents, which creates problems, especially for enforcement. (…) Should we grant monopolies just because someone has invested? If the arguments put forward today by the pharmaceutical, software, database and broadcasting industries are carefully examined, they are rarely about invention. No one argues with the concept that one needs to provide an incentive for invention, but should investors, simply by the fact of investing in a particular industry, have the same type of privilege as inventors? The question really is what the patent system for today should be. " (p.230)
"Only recently WIPO could not hold a meeting to discuss open-source software issues because the US Patent and Trademark
Office considered that such a meeting would contravene WIPO‘s mandate to “promote intellectual property“." (p. 231)
"At the end of the day, as I said, underlying all the challenges is the perception of fairness or unfairness in the system. If this perception grows, it will be more difficult to achieve real change. There will be two groups, with one group fighting to change the status quo and the other working to make the system more unfair than it already is. The question is whether the system is producing for each country what it is meant to produce, i.e. an enabler that provides access to new technologies." (p. 231)

Anthioumane N‘Diaye

Director General, Organisation Africaine de la Propriété Intellectuelle (OAPI)
"Still looking at the present, there is a system created by one part of the world called the western world, to better dominate the rest of the world, which already has its problems, where domination is not only related to the patent field." (p. 233)
"It is difficult to explain, but in certain areas the patent system is perceived as complex and foreign – there is a lack of communication and transparency and this ignorance allows attacks." (p. 234)

Hiroshi Ogawa

Ex-Commissioner, Japan Patent Office

Yoichi Omori

Executive Director of the Institute of Intellectual Property (IIP), Japan
"In many developing countries, it still the case that over 90% of patent applications are filed by foreign applicants. In these countries, the patent system is not a system for the host country, but a system for foreigners. However, they bear enormous examination costs in gathering competent technical experts in the country and having them examine the patent applications. In the absence of the national treatment principle it would be possible for these countries to use their patent systems as systems to benefit themselves. If the patent system could be used more effectively for protecting and fostering domestic industry, the system would not be so unpopular among developing countries." (p. 242)
"The patent system has reached a point where major reform is required. In order for the patent system to remain effective for developing industry and contributing to the affluence and welfare of the people, it must be fundamentally revised from the current system, which reflects the era of industrial capitalism, into a system that matches the new era. The basic structure of the patent system has not changed since it was enacted as the Statute of Monopolies in the United Kingdom in 1624. In other words, the patent system is based on an idea that inventions are created through the abilities and efforts of individuals. Basically, the system has provided an incentive for technology development by granting personal monopolies for
individual inventions. This structure effectively functioned in an era centred on secondary industry, such as the era of the Industrial Revolution from the 18th to 19th centuries, and when inventions were created by individuals. " (p. 242)
"the questions of how inventions relating to tertiary industry should be protected and how intangible features should be treated under the patent system have inevitably emerged as times have changed. It is only natural that discussions have arisen on whether patents should be granted for new types of technology such as new business models." (p. 244)
"many similar technology development projects are concurrently carried out around the world, and development costs are becoming enormous. In this situation, the current system of granting the patent right, which is an absolute right, to only one engineer who developed the most advanced technology in the world could cause technology development efforts to be wasted. The engineers in second and third place may also deserve some kind of privilege. (p. 244)
(…) Most modern technology development, though, is conducted using an accumulation of input and effort from many people. This indicates that technologies have become too advanced and complicated for individuals to invent by themselves. Modern patent law does not necessarily give sufficient consideration to inventions that involve a large number of people.
Another aspect is that this is an era in which a single technology involves many patents." (p. 244)
"The development of Linux is a topic that is closely related to copyrights, but it also reveals an interesting fact that is not unrelated to the patent system. The patent system is an interest-driven system that provides an incentive for technology development through the granting of monopoly rights. The success of Linux is extremely interesting in that it proved the existence of a sophisticated mode of development where developers contribute to the development without seeking rewards such as money or dominance. It indicates that granting monopoly is not the only approach to providing incentives for technology development in designing the patent system. It may be possible to provide incentives by introducing the concept of high honour or social contribution." (p. 245)
"I have worked for the Japan Patent Office (JPO) for a long time. The issue of workload existed even before I joined the JPO, and it still remains unsolved. The issue of workload has indeed troubled the JPO for more than 100 years. The number of patent applications is expected to further increase with the progress of technology development, but nobody has yet been able to propose a fundamental solution to this problem. Under the current situation, patent offices around the world will eventually fail and the patent system itself will collapse. In order to address this problem, we must go back to the basics of what the patent system is for." (p. 246)
"The patent system has a weapon, which is the inventive step. There is no need to grant a patent for an invention involving no inventive step. Would it be unreasonable to dramatically raise the level of the inventive step requirement, for example, to a level closer to a Nobel Prize, and only grant patents to historic inventions?"
"Patent offices around the world are too busy processing the applications at hand to think about what the patent system is really for. It is necessary to once again review the fundamental purpose of the patent system, and consider what kinds of rights or honours should be granted to what sort of achievements in order to provide an optimum and maximum incentive for technology development." (p. 246)
"In summary, the perspectives from which the patent system should be reviewed over the next twenty years are as follows:
(1) whether it is possible to introduce a system with incentives other than the grant of a monopoly for promoting technology development – for instance, whether it is possible to considerably limit the number of inventions to be examined and granted an exclusive monopoly (reduction of examining authorities) and introduce the right of honour or the right to claim compensation for other inventions;
(2) what kind of protection should be extended to what sort of subject- matter in line with the growth of industries dealing in intangible products, and whether a corporate patent or a comprehensive patent can be introduced based on a premise that many inventions are made by organisations; and
(3) what should be done in order to expeditiously establish a patent system that corresponds to the globalisation of business." (pp. 246-247)

Shinjiro Ono

Deputy Commissioner, Japan Patent Office
"The new technologies such as IT and biotech are very complex. In order to examine them properly one needs staff with a high level of knowledge and expertise. Even the large offices cannot recruit experienced examiners in sufficiently large numbers to cope with the speed and complexity of developments in emerging technologies, as well as the increased volume of applications." (p. 250)
"A product patent is very strong, whereas a process patent is less so, and industry wants strong patents. However, in the case of the IT and electrical industries, one new product is usually protected by more than 100 or 1 000 patents. Because so many elements are gathered in one product, these industries have a different attitude to the need for a monopoly – cross-licensing is essential and no one company can protect its innovation on its own." (p. 252)

Professor U. R. Rao

Former Chairman of the United Nations Committee on the Peaceful Uses of Outer Space (COPUOS), Rector of Bangalore University, India)
"One problem has been the lack of understanding of the nature or impact of intellectual property in many countries in the developing world. Part of the reason that developing countries acceded to the TRIPS Agreement was that they did not have sufficient knowledge of its implications to know what they had let themselves in for.
An issue that needs to be addressed is that industrialised countries have plundered the intellectual property of the developing world. This knowledge was often acquired over many generations and for a long time the need for protection was recognised." (p. 256)

Professor Yves Reboul

Director, Centre d‘Etudes Internationales de la Propriété Industrielle (CEIPI), Strasbourg
"The creation of the European patent system was an extraordinary enterprise: first, for having persuaded the member states to delegate power; then because it has created excellence, I would say an elite, an aristocracy, in the field of intellectual property in Europe. The European patent system has contributed to the creation of a common European culture. " (p. 256)
"One concern is the need to move away from a patent system currently perceived as a means of domination to protect a few developed countries. To ensure this, the system must be better balanced by means of national legislation regarding the exploitation of patented inventions. This will require the development of national legislations to protect the national economy in countries which are not strong producers of intellectual property." (p. 257)
"If there were three people whose opinion you could ask on the subject, who would they be?
• An industrialist who represents the positive aspects of the patent system, like Bill Gates." (p. 261)

Professor Michel Santi

Department Strategy and Business Policy, HEC, France
"there is a purely industrial approach regarding what is patentable, related to practical techniques. Yet today we are in an economy that has shifted, where services represent 70% of GDP. Today‘s concerns are not those of the world of the engineer, yet intellectual property has so far failed to take this shift into account. The system is out of date, it has not evolved like the economy, and it has a lot of problems." (p. 262)
"In summary, business wants more intellectual property, consumers want less. These two forces will shape the evolution of the system. Striking the balance between these two opposing forces is a daunting political task. The big question concerning IP evolution is: do we want to help consumers or companies? In other words are we defending the interests of the public at large or those of shareholders and businesses?" (p. 263)
"The time taken to obtain a patent is not a major issue. Examiners analysing applications need time in order to understand if something is patentable, and this time could also be used to examine if it is worth being patented (the value of innovation); the examiners should be correctly trained for that issue. A patent that does not create value is economically useless." (p. 264)

Dr Vandana Shiva

Director, Research Foundation for Science, Technology & Ecology, India
"The move from granting limited exclusive rights by society to the current concept of intellectual property is a huge leap. By taking patents, trademarks and copyright – three different forms of protection – upwards and lumping them together, the rights granted by society have taken on the status of a natural right. This has allowed confusion and caused the debate to shift. The term intellectual property has been elevated to the equivalent of a divine right, not granted by society. It is high time to bring back modes of balancing the rights granted to patent holders with the interests of society. The fact that patents existed for hundreds of years does not mean that the current concept of intellectual property is appropriate to the domain to which it is now applied." (p. 267)
"The overreach of the intellectual property monopoly with TRIPS as the launching pad has caused many people who always believed in patents and rewards for invention to now question the regime. There is a whole new critique of the system, based on the fact that intellectual property has the capacity to bully. It is based on power coherence, not intellectual coherence." (p. 268)
"The patentability of life forms, the concept of allowing patents on life, has caused ethical outrage. Life was not invented, so the concept of claiming exclusive rights to it is unethical, and this ethical issue has been translated into legal issues. The fact that there is a Monsanto patent on a gene has raised serious issues." (p. 269)
"When Europe debated the biotechnology issue, the argument was raised of ‚No patents – No cures, No seeds‘. This is simply blackmail and it is important to decouple high-scale monopolies and innovation. The idea that there will be no medicine if there is no monopoly is nonsense." (p. 269)
"A key challenge is to provide a decent future where people have access to health and education. Absolute monopolies close this access. If societies were reaching the decision to do so by democratic decision-making, there would be no problem. However, we are moving to the emergence of unaccountable governments who no longer act as the balancing agent between public and corporate monopoly interests. Public good is no longer a component of public policy: instead it is now an extension of private profit. Combatting this trend is society‘s biggest challenge to the future. There are two options: the peaceful option, where decent societies are created that share and promote well-being, or the terrorist route, where anger is articulated by those excluded from society who have no means to register their frustrations democratically.
The patenting of traditional knowledge – knowledge developed collectively over generations – has become epidemic and is a key challenge to the future. In the past, patent granting was the reward given to real invention, based on a vigorous examination process of the prior art and novelty elements. These principles have been thrown to the wind: everything that exists today can be patented." (p. 269)
"The aim of the intellectual property concept is to consolidate the three diverse concepts of patenting, copyright and trademarks under a single umbrella. Today copyright is linked to participation of the author, but as new technology breaks boundaries between information, biology and the creative commons, the result could be a totally ambiguous law that benefits a few players and stifles the multiple creative talents of society. There has been a gradual creep in the way intellectual property rights have been changed. This has been done by stealth: how property rights are defined, what life forms can be patented – a slippery slope towards higher life forms. We must keep the domain of freedom alive in practice against this creep that comes from a vision of total ownership, where nothing is free to evolve on its own terms." (p. 269-270)

Dr Jan Staman

Director, Rathenau Institute, Netherlands

Thierry Stoll

Deputy DG for the Internal Market and Services, European Commission
& Jacqueline Minor
Director in charge of Knowledge-based Economy, European Commission
"one of the issues that is becoming acute is the current lack of political governance in the field of patents. This is directly relevant to the EPO: it cannot continue to look at patents as a purely technical issue, where patents are granted and then used purely as a technical and economic exercise – the big question is whether the political world exercises sufficient influence." (p. 277)
"The greatest challenge is political inertia: the natural tendency for politicians to allow things to remain as they are until a crisis occurs. It is difficult to say that there is a crisis now, as the system continues to function efficiently with minor crises such as the Edinburgh Patent from time to time. However, we need to make people aware that now would be a good time to wake up. This will be determined in part by the national offices providing input, and alerting ministers to the need to address these questions now." (p. 279)

Professor Joseph Straus

Director, Max Planck Institute for Intellectual Property, Competition and Tax Law, Munich
"The recent study by the National Academy of Sciences stated that patents were too broad and that 95% of all applications eventually leading to a patent were not good for the development of innovation. Broad patents are a challenge to competitors and provide bad publicity for the whole system. They allow the powerful to pressurise others. A patent per se is not of
much use; it requires money to be enforced and exploited." (p. 284)
"A weakness of the patent system in Europe is that the EPO does not have a political mandate to take care of the patent system and of innovation policy for Europe. The EPO is only mandated to administer and further develop the Convention and to grant patents and also to offer help to developing countries. In order to fulfil its mission – to work for the benefit of the citizens of Europe – the EPO should form part of the European Union‘s legal framework, but with a special status." (p. 285)

Thierry Sueur

VP, Intellectual Property Department, Air Liquide and Member, UNICE
& Jacques Combeau
Intellectual Property Department, Air Liquide
"One area of technology that has certainly drawn public interest is software, encouraged by debates taking place at the European Parliament. Open source is part of the debate, and there are different economic models for marketing. We do not think this debate should have any impact on the patenting of computer-implemented inventions, and we do not believe that computer-implemented inventions should be treated any differently to other inventions – but it is a fact that there is debate on this issue." (p. 289)
"The cost of patents is becoming a burden for industry, and the notion of efficiency in the face of a monopoly is too easy. If costs are increased by ten percent in business, you are dead.
What this may mean is that people might use the patent system less – with mobile phones producing new models every 18 months, what use is a granted patent? It is likely that industry will try to focus on other rights, and look for another system." (p. 291)
"The true mission of the EPO is to grant valid patents. The role of the patent office is to be an independent arbitrator between the innovator and society. They have been given the task by society to grant patents only on valid, deserving inventions. It is illegitimate to grant lousy rights. Now society looks at patents and there are now too many highly arguable granted European patents. This gives a negative image of the whole system. One reason for this is that they need the money that comes from annuity fees and if they reject applications the office will not get these. Should this argument be true, then the system is in deep trouble, as this is unacceptable for society as a reason to grant patents. " (p. 291)
"We have recently seen a document on the quality issue produced by the EPO. We are not satisfied with this document because we think it lacks a real definition of what quality means. It is fine to create a PD in charge of quality, but without a definition and real reflection within the office this is meaningless. We have seen interesting papers on quality of search, but the global concept of quality is something quite different. We believe that quality can be defined as granting patents for deserving inventions, in a reasonable time and at a reasonable cost." (p. 291)
"Probably one of the problems is the way the EPO is organised. EPO staff are staff for life, they remain members of the EPO for ever. This means that they do not bring views from outside, and I am not sure they completely understand what patents are used for, and the wider context in which patents are used. Most of them simply have no experience of industry." (p. 292)
"We have two extreme situations between the USPTO and EPO: the USPTO examiners do not stay long because they can earn more money working for private law firms, so the turnover is too high and only the worst stay. The EPO examiners stay for ever because it is difficult to find higher salaries, which prevents them from getting outside experience, the “golden cage“ effect. There are problems with both situations." (p. 292)
"Within the political sphere, there are several problems to be solved: in the biotech field, in the software field, the Community patent. However, I am convinced that the way the EPO is managed today (by the Administrative Council) is such that it will mean either the death of the EPO or its transformation into a cash machine." (p. 292)

Professor Henk ten Have , Professor Judit Sándor

Division of Ethics of Science and Technology, UNESCO
"The recent question about BRCA1 patents raises many issues, in particular how to balance public health and commercial interests. This is the main point made by most developing countries, who perceive patents as an unequal way to protect benefits that have often been obtained by using their indigenous resources. For example, a recent meeting in Indonesia highlighted the widespread use of the flora in Sumatra as a rich source of medication products, describing how Western companies often scoured for suitable plants to take back to Europe leaving, the Indonesians to pay for the benefit of the product derived from their ethno-botanical source and giving them nothing in return." (p. 296)

"Increasingly, most research institutions and universities measure their scientific output in terms of numbers of patent outputs, with an expectation that they will be a source of revenue. We need to look at the patent process and ask what the rate of useful patents is – the expectation that patents always make money can be criticised. The idea of science as producing commercial output, focusing scientific activity solely on the commercial aspect, means that the emphasis has shifted to maximising return rather than providing answers to meet human need." (p. 297)
" UNESCO has been designated the conscience of the United Nations. Our standpoint is that patents in certain areas should be limited – there is some knowledge, such as the genome, that needs to be preserved as the common property of humankind. (…) We need to preserve the global commons, but patenting goes against this: this is the tragedy of the commons." (p. 297)
"Public health is important for all countries. This is the fastest growing area of science, where there is an increased number of potentially useful diagnostic tests becoming available, which will have lots of practical applications. The problem is that everything is patented, raising the question as to how possible it is to apply monopoly tests and therapies if the costs are so expensive that even the richest countries cannot afford all these therapies: what choices will be made?Patenting has aggravated the problem, impeding application at a time when there is a growing aging population and ensuring provision of medical care on the basis of ability to pay rather than need. Some scientists say that the patent system is shooting itself in the foot, and that less or no patenting is the more advantageous solution." (p. 299)
"I am not convinced that there is a need for patents in healthcare, although I can understand their value for industrial applications. With public health, there is too much pressure to have return on investment, creating ways of economical thinking about health that are inappropriate. We could have other regimes for protecting intellectual property." (p. 299)

Dr Christoph Then

Patent Expert Greenpeace International
"Patent law is in a process of inflation, creating lots of patents without really creating new inventions. Many experts take the view that particularly the threshold level for getting a patent, the inventive step, is not high enough. (…) The standards are simply not high enough. This has affected biotechnology, and looks set to impact software. United States patenting of business methods is not developing in the right direction. So when we come back to the question of what constitutes an invention, clearly a definition is needed that allows a clearer line to be drawn between something which is mainly only found in nature and what is truly invented by technology, between something which is mainly based on biological phenomena and what is a real technical process." (p. 304)

Dr Sandy Thomas

Director, Nuffield Council on Bioethics
"Over the last fifteen years there has been an expansion of the patent system, with more patents granted, new technologies gaining patent protection, even business methods. (…) Personally, I would like to see greater emphasis placed on patenting products and processes that are truly inventive and less emphasis on patenting small incremental advances." (p. 307)
" The greatest challenge for the patent system will be convincing society that patents have a role to play and are in the public interest, especially in Europe where there appears to be more scepticism about corporate ownership of intellectual property than in the USA or Japan. (…) It is important to have the patent system justified in the eyes of the public, and patent offices have not engaged in these public debates." (p. 308)
"The challenge is how to find the appropriate balance in the working of the patent system – strong protection for those who need it, without restricting innovation. This is a difficult problem that needs more discussion. The continuing importance and prominence of intellectual property rights over the last two decades has led to patents covering new technologies and materials, and there are fears that this might hamper innovation. It is not clear whose responsibility it is to consider that balance, but trying to keep it to get the best out of the system is difficult yet very important to achieve." (p. 308)
"until now patent offices have not had a major role in developing policy or a significant involvement in debates about where the thresholds for patentability should be set. It has been difficult for patent offices to extend their role and collaborate on drawing up ‚the big picture‘ – as I said, there is a distinction between the intellectual side and the administrative side of policy. These are potentially awkward discussions for the EPO, as the public debates involve several constituents" (p. 309)

Johannes B. van Benthem

Founding Father, EPO
"What is the optimal relationship between the EPO and the European Union?
That is not a very important question within the framework of a global patent system, as the patent system is indifferent to the exact relationship between the two. Within Europe, the European patent system should be linked up to the European Union. There is an economic unity within Europe and the EPO should be part of that. The EPO however has accepted members from
outside the European Union, inspired by the idea of a powerful broad patent system, and the broader participation has been fruitful, so maybe in practice the situation is not so bad." (p. 315)
"How can the world patent meet the needs of SMEs?
The world patent needs to have a reinforced quality to ensure certainty, and this means it has to be thoroughly examined. One cannot escape the fact that this will be costly, but for smaller enterprises with global interests it should be possible to pay for world patents. One could make a distinction between two levels of patents, namely national patents granted for a limited territory by national patent offices and regional and global patents which have to be of an enhanced quality.
With regard to differences in the nature of patents granted, I personally am not in favour of different terms for different inventions, as invention has the character of monopoly that has to be limited – twenty years is a long time." (p. 316)

Dr P.V. Venugopal

Director (International Operations), Medicines for Malaria Venture (MMV)
"It is important to see that the patent system does not become an inhibitor of the growth of technology, particularly with regard to nanotechnology and biotechnology. It is important for the patent offices to ensure that patents do not impede the growth of innovation, by continuously monitoring movement of technology and objectively studying cases where the process blocks innovation and then adjusting patent law in this respect. It used to be an engine for growth. The patent was a reward in return for an inventor putting his invention in the public domain and avoiding secrecy – it is essential that this function remains as such." (p. 319)
"Intellectual property is so important for managing innovation, yet infringement is pretty common. There has to be some balance in the system." (p. 319)

Professor Coenraad Visser

Head, Department of Mercantile Law, University of South Africa, Pretoria
"To my mind, in the current economic climate, developing countries have more to gain from staying away from the patent system than from buying into it." (p. 324)

Professor E. Sylvester Vizi

President of the Hungarian Academy of Sciences (HAS), Budapest; previously Chair of the World Science Forum

Kazuo Wakasugi

Chairman, Japan Petroleum Exploration Co., Ltd., formerly Commissioner, JPO
"Personally, I do not see any key areas that will emerge and impact the patent system of the future. Biotechnology, software, genetics and business methods have all influenced the system and I believe that while some new concepts might emerge, the stage has already been set." (p.331)
"The discrepancy between the technological and economic advancement of the developing and industrialised countries is an important problem that needs to be resolved. Should this gap continue to widen, there will be growing complaints against the imposition of a monopoly system. This is not a patent issue but rather a political and humanitarian issue, but patents are part of the problem."
"A challenge for the future is how to reconcile the opposing concepts of first to file and first to invent. I can logically understand the first-to-invent concept, but in order for a global system to function, it will have to be based on the first-to-file concept, incorporating some first-to-invent rescue elements. If the Trilateral Offices are able to achieve consensus on this issue, it will be a real breakthrough." (p. 332)
In the past, patents were seen as rights, which were given to outsiders by the members of a world of experts with their own bureaucratic administrative process. However, today patents are a form of contract, applied for almost automatically, and the world requires patents and patent rights which are more in compliance with the social and industrial requirements of the community at large. Whilst experts such as patent attorneys have their own interests to protect, this is not the case within the patent offices, but perhaps, subconsciously, the experts in patent offices are resistant to change. The different corporate cultures pit the interests of the patent experts against the common man, and it is important that this conflict does not expand. (p.332)

Professor Wang Jingchuan

Former Commissioner, State Intellectual Property Office of the People‘s Republic of China
"The State Intellectual Property Office of the People‘s Republic of China (SIPO) is an agency immediately under the State Council. I, in my role as Commissioner, report personally to Madam Wu Yi, the Vice-Premier. In the last Cabinet, I reported directly to Vice-Premier Wen Jiabo, now our Premier." (p. 335)
Another adjustment of interest that will bring significant challenges will be how to strike the balance between the interests of the intellectual property rights holder and the general public – the consumer and the user of intellectual property. As I understand, when the EPO issued a transgenic patent, environmentalists blocked the entrance to the organisation. The question is how a patent office such as the EPO can contribute to a balanced system. Of course it can be a major player, but during international standardisation the orientation of interests should help not only the acquisition of science and technology, but also the acquisition of substantive interest from different classes in different countries. I believe that we shall follow a higher principle for all human beings, justice and impartiality for society as a whole, because it is only when such a principle is truly applied universally that the development of human beings can continue and peace can be maintained among all countries. (pp. 336-337)

Joff Wild

Editor, IAM Intellectual Asset Management Magazine
"Business investment in intellectual property is growing, so it will become increasingly important that policymakers perceive the link between patents and economic prosperity. This is particularly important for policymakers in Europe, so that Europe can put together a framework that incorporates all aspects of intellectual property rights; otherwise the patent infrastructure has the potential to unravel. European patent owners need to educate policymakers as to the importance of patents. The success of their endeavours will have a major influence on how the patent system will unfold over the next twenty years. (p. 342)
Patent owners cannot simply wait for this to happen, they have to actively take action by lobbying and educating politicians. The onus is on them is to see that the system is as good as it can be, but to date they have not been successful, which means that patent policy with regard to things such as biotechnology and computer software is far more problematic in Europe than it is in other parts of the world. To get their message across effectively, patent owners need to include all constituencies that use or need the patent system – SMEs, multinationals, universities – as they are all responsible for the future of intellectual property in Europe. However, the initial initiative will have to come from big organisations, as they have more resources to enable this to happen." (p. 342)
There is a void, unlike the situation in the United States where an intellectual property agenda has been created. In Europe there are few organisations dedicated to lobbying and promoting intellectual property – there is no European Intellectual Property Law Association or European IP Owners‘ Association, for example. Obviously, an organisation such as the EPO has a role to play, but it is a neutral public body and needs to implement the decisions made by policymakers. (p. 342)
"Another challenge is how to influence public opinion. Intellectual property is currently portrayed in a negative light, and this affects the political landscape. If one goes to the root of political decision-making, politicians will engage with something that is popular or central on the public radar screen. To date it is the anti-IP agenda that creates the stories and dominates the headlines. Unless patent owners invest the time and effort, it will be difficult to change perceptions." (p. 345)

Toyomaro Yoshida

Director General, AIPPI, Japan
"One trend that is already observable is that countries with sufficient size and influence try to manipulate and modify the implementation of the patent system to maximise their own interests, even at the risk of violating the provisions of international treaties. If they continue to do so, this is likely to exert a negative influence on the shape of the rights protection system. (p. 347)
However, if we examine the other side of the coin, the patent system has catered to the needs of industrialised countries and has played a significant role in advancing their corporations and structures. If one were to analyse it, it is an artificial system driven by industrial policies and often at odds with other social systems. The positioning of intellectual property rights is therefore likely to be influenced by the history, society and culture of a particular nation and its domestic perceptions. This could mean that even if a universal global patent system were established, the system might not be permanent. My hypothesis is that one could only have this essential global patent system if it were able to respect domestic traditions, minimise the economic and technical discrepancies between nations and enable different countries to participate equally in its creation. (p. 347)
(The issue of balance is critical to the patent system and its future. Nowadays the merits of industrial development are overemphasised and too much weight is put on the rights of inventors – and investors take their investment decisions on that basis. (p. 348)

Professor Zheng Chengsi

Professor Mingde Li
"Intellectual Property Centre, China Academy of Social Sciences China has some good scholars in the field of intellectual property who have changed their opinions about the value of IP over the last twenty years. This change in attitude occurred when the genetic source code, software and business methods could be patented. They feel that the level of protection afforded to intellectual property now is too great, and covers too wide a scope. As people became aware of the widening scope of patentability and what the impact of enforcement in these areas could be, many of my former colleagues became my enemies. These people supported open reform of the system for many years, yet now some suggest withdrawing from TRIPS and the WTO." (p. 351)
There are questionable patents, which are in two specific fields. These are in the area of high technology, especially software and business methods, and the area of genetic resources. In the field of high technology, I agree with the EPO opinion that granting questionable patents will prevent some competitors, particularly those from developing countries, from entering the market. (p. 352)
One issue that was not raised in the US Federal Trade Commission report was the issue of business methods patents. It seems that China has already granted more than 16 such patents, which are mainly held by Citibank. Many in the IP field support the European view that inventions should have a technical character in order to be patentable.
There are many scholars, particularly in the legal field, who vocally oppose the intellectual property rights system. They point to the monopolies held by big companies like Pfizer, Microsoft, etc., mainly from the United States, arguing that monopolies are not good – although they like Bill Gates, as he is one of the very few who gives his money to the poor. We think that the United States system has gone too far, and would not wish to see Europe following the same route – Europe should stand firm.
(p. 352)
"For the last twenty years, most people were unfamiliar with the IPR system, then they were persuaded, but now more of them question its value."
"The issue of intellectual property enforcement is a big one: many companies based in Beijing and Shanghai make inventions only to find them infringed by other Chinese companies, and these companies are beginning to oppose those infringers, and are then less likely to countenance the infringement of foreign patents.(…)The Ministry of Commerce, the most important – and open – ministry, has a very clear definite mandate to crack down on any case of infringement, as industry has top priority. (p. 353)
The most significant challenge is the cultural background of the Chinese. Competition is not an admired trait. Our scholars are Confucian, and their thinking is that people should be peaceful and not compete, that if you have money, you should share it, and if you invent something, it should not be protected from others using it. The anti-commons issue is a big cultural challenge, and most people outside the field of IPR simply do not understand it. The reason why our case cannot be understood by so many people is that it is seen as a Western import, and people have difficulties in absorbing such a foreign cultural outlook. (p. 354-355)

Detailed interviews (p. 357 et ss..)

Professor John Barton

George E. Osborne Professor of Law, Emeritus, Stanford University
"We emphasised the fact that intellectual property rights – unless you make all kinds of adjustments which of course people are making – are going to increase the price of medicines for the poor. (…) We learned that at least in the sub-Saharan African type countries the benefits from patents were pretty weak. It is mainly multinationals that file for patents.
"What I fear is that other companies, the Indian companies, the potential Brazilian companies, may find it very difficult to break into industrial technologies on their own because of all the intellectual property rights that are barriers to their local operations and to the global marketing of their products. What we saw historically was that the United States developed by copying and imitating Europe in the 19th century. Japan developed by copying and imitating the rest of us in the 20th century. Korea did the same thing. Now we are making it harder to copy – there is obviously an imbalance. " (p. 360)
"This year it has taken two cases, one of which is the Metabolite case in which the question is roughly the patentability of natural principles.
This is for a diagnostic method, isn‘t it?
Yes, and, in a procedurally unusual way, it reached out to take the case. It‘s also taken eBay on whether injunctions should be automatic in intellectual property cases. [Since our conversation the decision has come out, and it has made the injunctions less automatic, and therefore weakened patent rights.] In taking this case, it reflected a serious concern that the system is in some cases hurting industry, especially in the computer sector. Now that is data point 1.
Data point 2 is the number of friends I have in the electronics industry who see the patent system as really being very, very bad because fundamentally people are dreaming up ways to get a patent that they can use to sue a major firm. These people are not producing themselves, but are looking for ways to sue companies that are in the market and to get a significant sum for injunction from them.
Consider also the Blackberry case. In my reading, and as I understand the case, it may have been a miscarriage of justice, because at the same time that the patents were being reconsidered and at least some being found invalid, the jury verdict came out. The company was forced to something like a 600 million dollar settlement on patents that, had the legal system let them wait a little while, might well have been found invalid. There was a somewhat similar case in Ariad against Lilly, a patent which was very broad, arguably too broad, but the verdict came out in spite of some reason for doubts of validity.
Thus, people outside the pharmaceutical industry are really feeling the system is not helping at all, that it has simply become a lawyers‘ game that requires a lot of costs and poses significant risks."(p. 363-364)

Justin Basara

Director of European Operations, Ocean Tomo, LLC