4th September 2007 | Draft
From Patent Rights to Patent Responsibilities
Obligations incumbent on owners and licensors of intellectual property
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Commentary partially in support of the draft proposal for a Universal Declaration of Patent Responsibilities (2007)
Inadequately foreseen consequences
"Patent responsibility" ?
Ethical responsibility and ethical patenting
Desirable extension of the scope of "patent responsibility"
Patenting strategies and avoidance of responsibility
Relevance of principles of responsibility in the case of tangible property
Principles of exception relating to use of intellectual property
Challenging cases -- potentially abusive patenting frontiers
Potentially informative database initiatives
Principle of "patent holder pays"?
The separate proposal for a Universal Declaration of Patent Responsibilities (2007) is designed to focus debate on those responsibilities for use of intellectual property incumbent on owners of such property and on those to whom use is granted by them in some way. This contrasts with current practice in which any such responsibility is left to others, notably regulatory authorities -- if they have been envisaged and irrespective of whether they have an appropriate mandate and adequate means of imposing constraints on use of the property.
The device used in formulating that draft proposal is the slight adaptation of the Universal Declaration of Human Responsibilities, proposed by the InterAction Council in 1997 (as amended in 1998) for consideration by the United Nations as a complement to the Universal Declaration of Human Rights (1948). No action has since been taken on the original proposal (available in many languages). In a reaction to it, the UN approved a Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms (53/144, 9 December 1998).
This focus on patent rights follows from an analogous draft proposal for a Universal Declaration of Responsibilities of Human Intercourse (2007), derived in the same manner -- and with which some relevant commentary is also associated. Just as that proposal benefitted from both a specific and a general connotation of "human intercourse", that on the Universal Declaration of Patent Responsibilities also benefits from multiple connotations highlighted by the possibility of more specific variants:
The proposed Universal Declaration of Patent Responsibilities (2007) necessarily treats some issues generically where more specific reference might be desirable in the light of the following. The focus is however to challenge any assumptions of an unquestionable right to "produce" without consideration of the containment capacity of the system or any consequent destabilization that proves necessary.
Typically the importance of these is denied, deemed acceptable, or considered to be the responsibility of society, possibly as articulated through regulatory authorities or through the ethical standards of the relevant industry. However, in the light of the precautionary principle, there is a case for those relying on such arguments to invest in a "Reassurance Fund" to compensate for those who may be faced with consequences such as the following:
The challenges are usefully presented by Nassim Nicholas Taleb (The Black Swan: the impact of the highly improbable, 2007).
The notion of patent responsibility, notably in the case of universities (as for example in the University of California Patent Policy, 1997) is typically restricted to legal issues relating to:
There is typically no question, again notably in the case of patent policies of universities, of any ethical or other constraint on the possibility of protecting intellectual property and benefitting financially therefrom.
Any such question of constraint is (implicitly) assumed to be handled within the framework of regulation by authorities -- totally independent of any responsibility of the owner of the intellectual property.
Curiously, in contrast to such unconstrained patenting on the part of academic research, it would appear that it is the concept of corporate social responsibility in the case of for-profit corporations that is exerting some degree of constraint on their use of intellectual property in the form of patented technology. Thus L L Brennan and V E Johnson (Technology management for corporate social responsibility. Technology and Society Magazine, 23, 2004) state that:
The effectiveness of this claimed constraining process is however questionable -- however significant it may be in certain sectors under certain circumstances..
Curiously the literature on "ethical patenting" tends to be restricted to issues relating to the more controversial questions regarding bioethics and patenting of life that are associated with the development of biotechnology. The World Intellectual Property Organization (WIPO) has indeed recognized ethical concerns relating to biotechnology (Biotechnological Patents - The Tension between IP Protection and Other Goals (Bio-Diversity, Ethical Concerns, Fairness); Biotechnology: studies and articles). However it would appear that WIPO, consistent with its narrow legal focus on such matters, confines itself to identifying other parties with ethical concerns relating to patenting (Professional Societies' Codes and Statements of Ethics) -- notably filed under "folklore/creative heritage/codes"
As an international authority on bioethics and the related issues of patenting, it is unfortunate that the arguments articulated by Darryl R. J. Macer (Ethical issues in patenting scientific research. In: Proceedings of the International Conference of the Council of Europe on Ethical Issues Arising From The Application of Biotechnology. Council of Europe, Volume II, 2000) are not considered in relation to patenting of intellectual property in general rather than confining such concerns to biotechnology.
Macer suggests the following principles in relation to patenting scientific research, which arguably might be applied to the production of any form of intellectual property:
Some of the above points are indeed raised and addressed in relation to copyright, even if they are not given due consideration in the case of patenting technology. This is notably the case in the debate over "copyleft", "open source" and alternative forms of copyright (Creative Commons, GNU ***).
Macer identifies some of the ethical arguments that are commonly expressed in support of patenting of biotechnology inventions as follows (again equally surely applicable to other forms of intellectual property):
If a discovery is patented with the intent of deriving profit from it, then profitable use (of any licensing) of it for purposes deemed harmful implies a degree of responsibility on the owner of that property, or the parties in the chain of responsibility ensuring the protection of that property (presumably irrespective of any cost to society).
In considering the following it is appropriate to note that any notion of "patent misuse" typically relates only to charges of "patent infringement" -- namely only to the harm caused to the owner of the intellectual property not to any other form of harm.
The chain of responsibility for patent use might therefore include:
According to the legislation, those in this chain might then be variously the subject of litigation in the event of harmful use of the product.
Under the circumstances, in a period when corporations are variously accused of "blue washing" or "green washing" themselves in order to claim "social responsibility", WIPO has a rather unfortunate acronym -- given its complicity in a process of effectively absolving owners of intellectual property of any responsibilities other than those related to correct filing procedures.
Given WIPO's checklist of ethical codes of a highly selective group of professional bodies, it is interesting to raise the question of the codes of ethics (and practice) considered appropriate by other registries. One example might be that of the relatively simply challenge of registering web domains according to the rules of ICANN (Internet Corporation for Assigned Names and Numbers). But of particular interest is debate about a "relevant" code of ethics for WIPO. This has been notably described in a report by the Electronic Frontier Foundation (WIPO: Trying to Bury the Development Agenda, 2005):
As input to the process at that time a working document was provided by Carolyn Deere (Elements for a Code of Ethics for Providers of IP Technical Cooperation, ICTSD Dialogue on Technical Cooperation for IP Policy in Developing Countries Geneva, July 2005).
Following an active lobbying process considerable progress was made in 2007 in formulating a WIPO Development Agenda -- as reported by IP Justice (an international civil liberties organization promoting balanced intellectual property laws and free expression). This did not not however result in any revision to the "existing" Code of Ethics of WIPO -- focused on "neutrality and accountability" from a purely legal, civil service perspective (and which is not readily accessible from its website).
It should also be noted that associating any revision of the WIPO Code of Ethics purely to a "development agenda" in no way takes account of forms of harm which might readily be framed as bearing no relation to development -- as illustrated by the decades long turf war between UNDP and UNEP, for example.
The concept of a "patenting strategy" is central to determining how to frame a patent and to ensure that is is adequately protected and responsibly filed. However any notion of responsibility does not include concerns that might be highlighted in terms of ethical patenting. The current determination of a patenting strategy is clarified by the services offered by Technology and Patent Research (Types of Searches, 1995-2007) whereby strategically advantageous "gaps" or "loopholes" are detected
It would indeed appear that any "gaps" that may be detected are not constrained by issues of harmfulness or hazard.
As noted by John A. Rafter, Jr. (Ongoing Patenting Strategies,The National Law Journal, 14 July 1997-2006), in recent years, inventors and corporations have found it increasingly difficult to protect their inventions via patents. Competitors employing their own patent attorneys often can design around even a well-written patent. He considers it essential that inventors and corporations adopt continuing strategies for patents, not only before but also after the patent has been granted. Revised application may be made to broaden the claims or to narrow them to ensure stronger protection in the light of new information on related patents by competing technology.
Clearly if patents can be circumvented in a technical sense, they can also be designed around in terms of consideration of ethics and harm.
Abusive patenting strategies
Whilst WIPO has focused on the first of these, it is unclear that it has identified the various forms of potentially abusive patenting strategies.
Crimes against humanity
An interesting question is the degree to which it might be argued that patenting is used to enable "crimes against humanity".
There is a curious contrast between the responsibilities reflected in legislation regarding ownership and use of tangible (non-intellectual) property:
Curiously although emphasis is placed on the commonality between tangible and intellectual "property", it would appear that no systematic consideration is given to application to intellectual property of the responsibilities attached to ownership and use of tangible property.
More curiously, is the fact that many of these principles are increasingly applied to virtual real estate and to other forms of property in cyberspace.
Just as principles of exception apply to ownership of tangible property, it might be expected that such principles should apply with respect to intellectual property. The legal status of "exceptions" and "limits" is complex (cf Pierre Sirinelli, Exceptions and Limits to Copyright and Neighboring Rights, 1999, WCT-WPPT/IMP/1) and perhaps deliberately so.
There is clearly a case for giving active and overriding consideration to development of provisions for exceptions in relation to:
The general point is the need to develop a framework for the responsible appropriation of intellectual property "in the interests of humanity" and the conditions under which such use should supercede all other claims. Clearly this requires very careful attention to the manner in which any such provisions may be abused and what action to take in that event.
Of special interest is the hypothetical possibility of an innovation, for which appropriate intellectual property protection could be obtained, which was so vital to the future of humanity that it could be used to hold the world to ransom in some way -- an immortality drug, etc.(what is termed a "killer app" in the software world).
The complicity of the patenting process in facilitating abuse may be usefully highlighted by the following extreme, and often well-publicized, cases:
Of particular interest are cases anticipating so many potentially relevant patents that the cost of innovation is prohibitive -- forcing an alternative approach characterized by patent avoidance through non-commercial innovation, production, innovation and use. This might effectively constitute a paradigm shift to a form of "voluntary simplicity".
Informative patent-related databases in response to the above issues might include:
The above arguments point to the merits of exploring a principle analogous to the Polluter Pays Principle. Currently this is a principle in international environmental law under which the polluting party pays for the damage done to the natural environment. It is regarded as a regional custom because of the strong support it has received from the Organisation for Economic Co-operation and Development (OECD) and European Community (EC) countries. International environmental lawcurrently makes little mention of the principle.
Under a "Patent Holder Pays" principle it would be for the party ultimately benefitting financially from the patent protection of their property to ensure payment for damages to the environment or to people. The patent holder would necessarily make provision for reparations in licensing use of the patent to others.
Consideration could also be given to any costs associated with unreasonable failure to enable use of the patented know-how where there is a reasonable demand to benefit from it.
(in addition to those identified in relation to the Universal Declaration of Responsibilities of Human Intercourse, 2007)
François Bourgeois. Does Patenting Impair Communication? (In: Proceedings of EPAC 2000, Vienna) [text]
Darryl R. J. Macer and Makina Kato. Biotechnology, Patents, and Bioethics [text]
Darryl R. J. Macer. Ethical issues in patenting scientific research. In: Proceedings of the International Conference of the Council of Europe on Ethical Issues Arising From The Application of Biotechnology. Council of Europe, Volume II, 2000. pp. 173-181 [text]
John A. Rafter, Jr. Ongoing Patenting Strategies. The National Law Journal, 14 July 1997 [revised version, 2006]
José Represas de Almeida. Patenting Strategies and the Patent Cooperation Treaty (PCT). 2002 [WIPO/INV/MTY/02/19] [text]
Evan R. Smith and Charles M. Leedom Jr. Low-Cost Patenting Strategies. Intellectual Property Resource Center, 1997 [text]
Dominique Guellec and Bruno van Pottelsberghe de la Potterie. The Value of Patents and Patenting Strategies: Countries and Technology Areas Patterns. Economics of Innovation and New Technology, 11, 2002, 2, pp. 133-148 [abstract]
John Stachel. How Did Einstein Discover Special Relativity? In: John Stachel, Einstein from "B" to "Z", 1983 [text].
Richard Stallman. Software Patents: obstacles to software development. 2002 [text]
Nassim Nicholas Taleb. The Black Swan: the impact of the highly improbable. New York, Random House, 2007
Technology and Patent Research. Types of Searches. 1995-2007 [text]
World Intellectual Property Organization (WIPO):
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