Patent Systems in DCs and LDCs: The Need for Coherence between Patent Law and Public Policies Cairo, 6 May 2013 Mohamed Omar Gad Ministry of Foreign Affairs of Egypt

Outline I. Patent Law and Policy (System) II. Public Policy III. Coherence b/n Patent Law and Public Policy IV. Working Towards Achieving Coherence M. Gad - Ministry of Foreign Affairs of Egypt 1

I. Patent Law and Policy (1 of 2) Why Patent Law? Individual Justification: An instrument of justice to the inventor (a property rights system) Public Justification: Act as an incentive to invent and innovate Act as an information system The Patent as a Social Contract M. Gad - Ministry of Foreign Affairs of Egypt 2

I. Patent Law and Policy (2 of 2) Benefits Predominant system to foster innovation While other systems (state- funded research, prizes, etc.) exist, yet these are dwarfed by the patent system Drawbacks Anti-competitive effects Hindrance to public policy priorities, particularly in more vulnerable countries M. Gad - Ministry of Foreign Affairs of Egypt 3

II. Public Policy (1 of 3) What is Public Policy? A system of laws, regulatory measures, courses of action, and funding priorities concerning a given topic promulgated by a governmental entity or its representatives Not necessarily a national undertaking, but it is common nowadays to refer to global governance, meaning international, or global regulation of a particular issue area While not necessarily a neutral exercise, public policy is undertaken in the name of the public, and intended for the public good. It is not necessarily a neutral exercise, as it is subject to the vagaries of interest groups. It almost certainly has a direct effect on the lives of those in whose name it is undertaken M. Gad - Ministry of Foreign Affairs of Egypt 4

II. Public Policy (2 of 3) What are Issue Areas of Public Policy? A plethora of issue areas, a more limited set among them related to patent law and policy The title of this session, refers directly to three such public policy issue areas: Innovation: the most directly relevant to patent policy Health: the most controversial issue area associated with the patent system Trade: been brought accidentally (or by design) to become directly relevant to the patent system since the late 1970s, and most notably in TRIPS M. Gad - Ministry of Foreign Affairs of Egypt 5

II. Public Policy (3 of 3) What are Issue Areas of Public Policy? (Contd) Other public policy issue areas of direct relevance to patent policy are: agriculture and food security environment and climate change education (although most relevant to copyright policy) A broader and classical area of public policy is economic development M. Gad - Ministry of Foreign Affairs of Egypt 6

III. Coherence between Patent Law and Public Policy Why do we need it? What is it? How do we achieve it? What are the challenges? M. Gad - Ministry of Foreign Affairs of Egypt 7

III. Coherence (1 of 7) Why do we need it? A patent system that is coherent with public policy in a given issue area is the essence of a development- oriented patent policy The patent system is the cornerstone of the IPR and public policy debate M. Gad - Ministry of Foreign Affairs of Egypt 8

III. Coherence (2 of 7) What is it? It is the tuning and fine-tuning between policy areas It entails variation, responding to differences in the factors affecting a policy set-up, and in the needs and priorities of a given society/economy Chief among these variations and differences are differences in the levels of development among countries M. Gad - Ministry of Foreign Affairs of Egypt 9

III. Coherence (3 of 7) How do we achieve it? Acknowledge that the patent system is not an end in itself Upheld in TRIPS Articles 7 and 8 (Objectives and Principles) uphold considerations of public policy for developing countries in the conduct of their IP policy. M. Gad - Ministry of Foreign Affairs of Egypt 10

III. Coherence (4 of 7) Article 7 "The protection and enforcement of intellectual property rights should contribute to the promotion of technological innovation and to the transfer and dissemination of technology, to the mutual advantage of producers and users of technological knowledge and in a manner conducive to social and economic welfare, and to a balance of rights and obligations. Article 8 "1. Members may, in formulating or amending their laws and regulations, adopt measures necessary to protect public health and nutrition, and to promote the public interest in sectors of vital importance to their socio-economic and technological development, provided that such measures are consistent with the provisions of this Agreement. 2. Appropriate measures, provided that they are consistent with the provisions of this Agreement, may be needed to prevent the abuse of intellectual property rights by right holders or the resort to practices which unreasonably restrain trade or adversely affect the international transfer of technology." M. Gad - Ministry of Foreign Affairs of Egypt 11

III. Coherence (5 of 7) How do we achieve it? (Contd) Article 7 codifies into the text of the Agreement what was recognized in its preamble as the underlying public policy objectives of national systems for the protection of intellectual property, including developmental and technological objectives. Article 8 allows the adoption of measures necessary to protect public health and nutrition, and to promote the public interest in sectors of vital importance to their socio-economic and technological development Article 8 also allows measures to promote competition and technology transfer M. Gad - Ministry of Foreign Affairs of Egypt 12

III. Coherence (6 of 7) What are the Challenges? Treating patent protection and enforcement as an end in itself Equating a better patent system, with higher levels of protection, and believing that a higher level of protection impacts positively, in and of itself, on the public policy issue at hand Patent harmonization, first started in TRIPS minimum standards, then to substantive law, and now to patent processing and examination procedures (invisible harmonization) M. Gad - Ministry of Foreign Affairs of Egypt 13

III. Coherence (7 of 7) What are the Challenges? Lack of ability to set, and implement coherent policies: as a result of lack of qualified knowledgeable personnel as a result of constraining obligations, most notably in the form of IP provisions in preferential trade agreements Regulatory Capture M. Gad - Ministry of Foreign Affairs of Egypt 14

IV. Working Towards Achieving Coherence (1 of 2) Change and Continue Changing the Discourse: Discourse on patent law and policy has changed following the Doha Declaration with developing countries playing a more assertive role in IP debates, seeking to develop their own pro- development policies Engage Outsiders The role of civil society actors has drastically changed the debate favoring a more contextualized patent system adhering to public policy priorities Different government departments must be involved in the design and implementation of patent policy Encourage Linkages with Public Policy Issues M. Gad - Ministry of Foreign Affairs of Egypt 15

IV. Working Towards Achieving Coherence (2 of 2) Work Streams Forward: Implement the WIPO Development Agenda Move forward with a South-South stream of work on patents and other forms of IP Establish regular contact among developing countries and LDCs – the web portal idea to be based at WIPO and part of the SSC Project M. Gad - Ministry of Foreign Affairs of Egypt 16

Thank you