IP insider: Global challenges call for more integrated approach to IP policy

One of the under-appreciated realities of intellectual property is that while it is a key ingredient in the global economy, the legal regime supporting it is decidedly non-global. In 2013, the US Supreme Court unanimously ruled in Association for Molecular Pathology v Myriad Genetics, Inc that isolated human genes could not be patented (while ruling that synthetic DNA was patentable). However, in a similar case brought in Australia’s highest court, the opposite conclusion was reached, based on policy and science at least as valid as those relied on in the United States. These cases serve as a reminder of how intellectual property can play a pivotal role in a wide range of debates, as well as how challenging it is to balance an incentive system designed to spur long-term, high-risk technology investments with the public’s natural desire for existing products and cures to be made available at the lowest possible price.

Over the past generation, IP laws have become the best – and sometimes the only – way to protect innovation and fairly reward those members of society keen to improve the human condition through new approaches. Traditional sources of competitive advantage have dissipated as potential competitors around the world increasingly have access to the same resources.

Additionally, more and more content is being stored and distributed directly via the Internet using smartphones, tablet computers and cloud computing services. This has ushered in new benefits for the sharing of creative works and ideas, along with new challenges to the rights of content creators.

When information and content are available and transparent, innovators must play both offence and defence with their IP assets. That means seeking patents for innovations and ensuring that these are enforced in a climate marked by widespread infringement. The stress on the IP system will likely escalate in the next decade as technology makes it even easier to share and copy products. Laws preventing new forms of copying, like all laws, lag behind technological progress. Regardless of the deficit that the current laws create for intellectual property, patterns such as changing means of access and consumption, growth of new technologies, increased user involvement, shifting business models, the expanding global market for products and services and increased fragmentation of IP ownership will have significant effects on the creative economy of the future.

Countries in Europe and Asia can be expected to strengthen their IP systems due to growing awareness of the nexus between innovation and economic growth. Critical sectors, such as life sciences, will place renewed pressure on these governments to enact more robust IP laws and tighten enforcement. Relying on other countries to pursue drug discovery and then finding ways to access those new drugs (legally or illegally) will no longer be sufficient.

An example of the problem lies in the nation-based regulatory environment of patent law, with the laws of various countries each requiring that an affected patent application be filed first in that country. Protective patent filing laws are easy enough to comply with when only one jurisdiction is involved. However, in the case of inventions developed in various places by various inventors working together, these protective provisions can quickly come into direct conflict with one another. Competing provisions can even make filing a patent application in one country a violation of another country’s law.

While the patent regime is a long way from being global, there are some important signs of progress. In 2006, the IP offices of the United States and Japan launched a joint programme designed to bring greater speed and efficiency to the process of getting patent applications from one country examined in the other. Known as the Patent Prosecution Highway, the programme (which now includes 17 countries) has proven extremely popular with patent applicants and has experienced triple-digit growth for several years, along with savings for patent applicants and patent offices of hundreds of millions of dollars. The emerging shift towards a more cooperative cross-border approach to patent reviews and approvals puts the focus on building from a shared foundation of knowledge rather than duplicating the work of others.

Intellectual property is about expanding the body of knowledge for society’s collective benefit. The investments made in the form of temporary exclusive rights have reaped handsome returns for countries around the world – helping breakthrough technologies to spread and contributing to a dramatic rise in living standards. While some countries have had more success with innovation than others, in the modern global economy no country or region can be the sole source of the world’s new ideas. Continued success in promoting innovation requires international cooperation and a global perspective. The result can be new transformative products that help to overcome many of the world’s most pressing challenges – from diseases to climate change – while also unlocking new opportunities to achieve greater growth and prosperity.

The author would like to thank Patrick E Bassey for his assistance on this column