FROM INTELLECTUAL PROPERTY PROTECTION TO SUSTAINABLE

DEVELOPMENT

Intellectual property protection first acquired a significant international law dimension in the
nineteenth century with the adoption on important international treaties concerning intellectual
property protection.1 Overall, the development of the intellectual property was largely
incremental until the 1990s. This was due in part to the lack of consensus on the specific
structure of an international regime. As a result, the intellectual property rights system remained
based over the centuries on the principle of territoriality allowing individual countries significant
margins of appreciation in developing their own laws and policies. In this regard, the adoption of
the TRIPS Agreement in 1994 has been a watershed even though the principle of territoriality has
been retained. It has contributed not only to the introduction and strengthening of intellectual
property protection in most developing countries but has also imposed for the gfirst time
minimum levels of protection that all WTO member states must respect. This can be attributed in
part to the increasing reliance to developed countries on knowledge-based industries, including
the rapidly developing genetic engineering industry.

A. INTELLECTUAL PROPERTY RIGHTS AS A FORM OF PROPERTY RIGHTS

As currently recognized, the main type of intellectual property rights are largely individual
private property rights.2 In general, private property rights are rights asserted by individuals or
group that are statutorily sanctioned by the state. In fact, one can distinguish between possession
which is limited by physical ability to maintain control over the goods and property rights which
exist only insofar as they have been given state recognition. 3 Statutorily granted private property
rights property rights are not absolute rights. They can be curtailed by the state or even simply

1 See, eg, Paris Convention for the Protection of Industrial Property, 20 Marcg 1883
(as revised and amended) [hereafter Paris Convention] and Convention for the
Protection of Literary and Artistic Works, Berne, 9 September 1886.

2 There are exceptions such as geographical indications. For further analysis of

geographical indications, see Chapter 10, page 330.

3 Christoper May, A Global Political Economy of Intellectual Property Rights The

New Enclosures? (London: Routledge, 2000).
cancelled. For real property rights, expropriation by the state is the ultimate assertion of state
power which leads to the dispossession of the good, in most cases with due compensation. For
intellectual property rights, the state usually has at least the power to curtail the enjoyment of the
rights granted, for instances, through the issuance of compulsory licenses. 4 While there is general
recognition that intellectual property rights are not absolute rights, the recognition of the right to
own the property as a fundamental right at the national and international levels as well as the
specific mention of intellectual property rights in human rights treaties necessitates a specific
analysis of the link between human rights and intellectual property rights.5

All private property rights share some characteristics. In general, they are exclusive right over
objects or information vested in a single legal entity. Individuals or corporations holding such
rights can exclude others from the benefits of their property and regulate its use. Another
defining characteristic of private property rights in their alienability.6 This implies that rights
holders are, barring some limited exceptions such as reasons of morality, free to alienate their
rights through voluntary transactions such as a sale transaction. 7 This clearly separates such
entitlement from fundamental rights such as the rights to life or to food which can under no
circumstances be alienated. Nevertheless, while intellectual property rights are alienable, this
characteristic is in the case of rights like patents limited to the duration of rights. Once patent
right expires, the relevant knowledge falls back in the public domain where it is available to all
without possibility for anyone to appropriate it individually. As a result, there is no more
alienability.

(i) Rationale and Aim of Protection

4 On compulsory license, see further, Chapter 2, page 82.

5 The analysis is undertaken in Chapter 12.

6 See, eg, Guido Calabresi and A Douglas Melamed, Property Rules, Liability Rules,
and Inalienability: One View of the Cathedral, 85 Harv L Rev 1089 (1972)

7 See, eg, Bhaskar Vira, Claiming Legitimacy: Analyzing Conflict in the

Environmental Policy Process, 19 Env & Planning C: Gov & Poly 637 (2001)
While real and intellectually property rights share some basic characteristics, there are some
differences which explain the need for a separate treatment of the two type of property rights in
essence, real property rights allocate claims over resources which are nearly always available
only in finite quantities. Further, the use of material object cannot usually be enjoyed in more
than one place at a time. This scarcity of material object does not affect the use of knowledge
which can be used in an unlimited number of locations. No single use formally limits anyone
elses use. Thus, while it is impossible for two different persons to have full and exclusive
control over a single house at the same time, two or more people can be using the formulae for a
new drug without formally restricting each others uses. 8 One of the basic characteristics of
intellectual property rights is that they protect intangible wealth which can be easily appropriated
and reproduced without depriving creators of their possession.

There are different ways in which the introduction of intellectual property rights can be justified.
These range from conceptual to practical grounds. One of the basic ethical justification for the
introduction of intellectual property rights in that this constitutes a just reward for the intellectual
labour expanded in bringing about something new. In other words, individuals get ownership
rights as a reward for their efforts.9 Intellectual property rights can also be justified economically
as a method of allocating value to particular resources. They are meant to provide a more
efficient method of wealth allocation where the value created by an inventor can easily be
appropriated by other people and where the cost of reproduction is often much lower than the
cost of invention. A related economic justification is that through transferability, the knowledge
will pass on to those who value this knowledge most highly. In other words, intellectual property
rights foster the incorporation of some portions of knowledge into markets.

Existing intellectual property rights generally constitute a compromise between some of the
justifications for the introduction of intellectual property rights, ongoing opposition to their
introduction and the need to find politically palatable solutions. Under existing laws and treaties,
intellectual property rights provide relatively strong rights to the rights holder who is usually a
clearly defined legal entity such as company, an individual or a university. Intellectual property

8 Cf May, supra note 3 at 45.

9 Cf Justin Hughes, The Philosophy of Intellectual Property, 77 Geo LJ 287 (1988)

rights such as patents are granted as an incentive for further innovation and to ensure the
availability of new products in the market by giving an incentive for commercialization. The
question of the incentive for innovation has been the object of ongoing debates for the past many
decades. On the one hand, it can be argued that without patents, specific inventions would not
take place because of lack of economic incentive to carry out research without prospect of
eventually deriving an economic benefit from the effort. On the other hand, it can be similarly
argued that science and technology has over time progressed on the basis of the free science of
knowledge. The response of the existing intellectual property rights system to this dichotomy has
been to introduce property rights which are limited in time. The inventors get full rights over
his/her invention for a specific (and generally arbitrary) period of time. After the period of
protection is over, no property rights can be claimed over the specific knowledge and everyone is
free to use it for commercial or non-commercial aims. Another response in the specific case of
patents has been to provide that the rights must not only be time-bound but that the description of
the invention must be available to everyone even during the period of protection. In other words,
the inventor is forced to disclose the invention so that the technological advance is shared with
the rest of society even if others cannot use it freely before the end of the period of protection. In
fact, from this point of view, patent protection can be seen as an incentive to ensure the
disclosure of knowledge since without this legal mechanism to ensure the protection of her/his
interest, the inventor would be more likely to keep the invention secret in an attempt to maintain
control over its use.

(ii) Scope of Protection

Conceptual debates over justification for the introduction of intellectual property rights have had
significant impact on the actual scope of protection that intellectual property rights laws and
treaties provide. Firstly, there has historically been a clear divide between scientific theories and
technological innovation. The former are either specifically excluded from protection like in the
Patents Act 1970 or indirectly because they are not capable of industrial application. 10 On of the
underlying reasons for excluding scientific theories is the perceived need to preserve the basic

10 Section 3(c), Patents Act 1970 and Article 27(1), Agreement on Trade-Related
Aspects of Intellectual Property Rights, Marrakech, 15 April 1994, 33 Intl Leg Mat
1197(1994) [hereafter TRIPS Agreement]
science used for technological advancement in the public domain and therefore free form
restrictions on access.

Secondly, there has also been a distinction in the field of patents of even greater importance in
the context of this book. It is the difference made between discoveries and human inventions. Of
special relevance is the fact that natures creation was for a long time deemed to be completely
excluded from patentability. In other words, while the inventor of a new chemical medicine
could patent her/his invention, the person discovering a new species of trees or discovering in
nature a seed yielding more than known seeds of the same variety could not have patented them.

In fact, the dichotomy between creations of the human brain and natures creation was a
fundamental aspect of patent law until the 19080s and has remained an important concept to-
date. The distinction between discoveries and invention has been important for two main reasons.
Firstly, it provides a way to distinguish between products of human activities and natures own
contribution which should not be appropriated by any single individual. Secondly, it provides a
way to delimit the scope of patentability so as to exclude what was seen until the 1980s as no
more than raw material to be used for creating human inventions.

The importance of the distinction between natures creation and inventions can be better
understood by referring to the debates that took place when the introduction of a form of
intellectual property protection on plant varieties was first mooted at the international level in the
middle of the twentieth century. On the one hand, there was opposition to the introduction of
patents on plant varieties because plant verities were seen as being part of natures creation that
should not be privately appropriated but in the public domain. On the other hand, there was
opposition from people who feared that the introduction of patents in this field of technology
would devalue the existing patent system with the introduction of a category of patentable
inventions where the human contribution to the invention was much lower than in case of
traditionally patentable inventions.11 In the case of plant varieties, the compromise between all
the different positions in presence was the introduction of an alternative form of protection- plant

11 See, eg, Dwijen Rangnekar, Intellectual Property Rights and Agricultural: An

Alalysis of the Economic Impact of Plant Breeders Rights (Actionaid UK, 2000).
breeders rights- which offers a lesser form of protection and provides this protection on the basis
of different criteria.12

Debates concerning the introduction the introduction of intellectual property protection for plant
varieties notwithstanding, the basic dichotomy between discoveries and inventions which
presupposed that natures creations could not be patented was left more or less untouched until
1980.13 Since 1980 and the United States Supreme Court decision in Chakrabarty the patents
system has dramatically changed.14 Over the past twenty-five years, one of the most important
developments in the patents system has been the rapid move towards the patentability of life
forms. The Chakrabarty decision was the first occasion where the Supreme Court directly
indicated that it saw no reason to reject the patentability of living organism a priori. Since then,
the patentability of life forms has made rapid progress, moving on from micro-organisms to
plants and animals in some jurisdictions, and is now part of the minimum standard of protection
imposed by the TRIPS Agreement in all WTO member states.15

In the context of life patenting, the debate concerning the appropriate scope of protection has
become much fiercer than in the context of the introduction of plants breeders rights but along
broadly similar lines. On the one hand, researchers and big payers in the genetic engineering
industry are generally interested in seeing the scope of patentability further extended. On the
other hand, there are two types of opponents. Firstly, some argue against the extension of the
scope of patentability on ethical, environmental and social grounds. Secondly, some argue that
the extension of the scope of patentability is now in itself inimical to the original goals of the
intellectual property rights system of providing incentives for further research and technological
development. The argument is that the increasing scope of patentability coupled with the

12 On plant breeders rights, see Chapter 7, page 226.

13 There were some exceptions such as the United States, Plant Patent Act of 1930,
35 USC 161 et seq.

14 Diamond v Chakrabarty, Supreme Court of the United States, 16 June 1980, 100
S Ct 2208.

15 On life patents, see Chapter 7, page 220

tendency to accept broad claims is leading to a system where small; start-up companies and
research communities find it increasingly difficult to carry out research because the primary
instruments of research, such as micro-organisms, are protected by patents.16

The question of the extension of the scope of patentability to cover life patents is in fact part of
the broader debate concerning commodification.17 Indeed, while life patenting in one of the most
controversial aspects of the extension of the scope of intellectual property rights; it is part of a
broader trend which sees an increasing number of activities and fields of knowledge being given
legal protection through intellectual property rights. This has significant consequences because
the balance between bodies of knowledge available in the public domain and knowledge
protected is increasingly being shifted in favour of appropriation by private entities. While it can
in principle be argued that this is likely to be in favour of society in general because it gives new
incentives for inventiveness in the fields covered, this movement leading to the enclosure of
previously freely available knowledge must also be seen in a context that goes beyond
intellectual property.18

(iii) National and International Development

The main periods in the development of intellectual property rights regimes can be identified in
the context of this study. The first period ranges from the mid-nineteenth century to the adoption
of the TRIPS Agreement. During this period, the main intellectual property rights treaties were
largely mechanism for coordinating national intellectual property rights policies. As a result, they
gave member states significant leeway in adopting intellectual property rights laws suited to their
won needs and priorities.

16 See, eg, John H Barton, The Biodiversity Convention and the Flow of Scientific
Information, in KE Hoagland and AY Rossman eds, Glabal Genetic Resources:
Access, Ownership and Intellectual Property Rights 51 (Washington, DC: Association
of Systematics Collections, 1997).

17 On commodification, see generally, Margaret Jane Radin, Contested

Commodities ( Cambridge, Mass: Harvard University Press, 1996)

18 See, eg, James Boyle, The Second Enclosure Movement and the Construction of
the Public Domain, 66-SPG Law and Contemp Probs 33 (2003)
The second period formally started in 1995 with the coming into force of the TRIPS Agreement.
The major charge it has introduced is the imposition of minimum levels of protection, in
principle, the TRIPS Agreement has not taken away from member states the right to
independently adopt intellectual property rights laws but this must take place within the
constraints of the minimum standards introduced.

The TRIPS Agreements is till the governing treaty in the field of intellectual property rights but
the overall legal framework is fast evolving. In some areas such as patents there are proposals for
further internationalizing the legal regime by adopting an international substantive patent law
treaty. Further, the minimum standards of the TRIPS Agreement are progressively becoming a
thing of the past with the increasingly frequent adoption of bilateral treaties which impose the
introduction of higher standard of protection.19

B. PATENTS

Patents constitute only one of several forms of existing intellectual property rights but they
deserve a specific introduction at this juncture because of their importance in the context of this
book.20 Patents have consistently been conceived as privileges granted by the state over their
several centuries of development.21 Their specific features have, however, significantly evolved
from early years when patents were privileges granted by a ruler for specific activities such as
importing products unavailable in the country to today where patents are meant to reward
inventiveness.22

The introduction of patent rights can be justified in different ways. They can, for instance, be
justified as reward for the effort expanded in contributing to technological or economic
19 See Chapter 4, page 144

20 Other types of intellectual property rights are introduced in the Chapter where
they are specifically analysed.

21 On the early development of patents, see, eg, Ikechi Mgbeoji, The Juridical
Origins of the International Patent System: Towards a Historiography of the Role of
Patents in Industrialization, 5 J History Intl 403 (2003).

22 See, eg, Peter Drahos, Who Owns the Knowledge Economic

development. This reward theory is largely applied in patent laws and treaties but it does not
account, for instance, for the fact that in practice a patent examiner is not concerned about the
technical factors which constitute the conditions for patentability in existing patents laws and
treaties.23 Further, the reward theory tends to dissociate the patents systems from the social utility
of the inventions and does not provide a mechanism for rankings technologies that foster the
sustainable development of a country and those that do not. Thus, the reward theory could not
have accounted for the limitations on patentability in the health sector in the Patents Act 1970.

Patents can also be seen as a tool to promote technological development in fields where the low
cost of copying an invention is likely to limit the economic incentives for inventiveness. 24 One of
the roles of patents is that to ensure that information providers do not lose rights to the
information by disclosing it given that intellectual contributions can be used by an infinite
number of persons simultaneously.25

In practice, the patents system is conceived as an exception to the rules of competition and free
market which characterize capitalist economies. Since patents are conceived as an exception, it
has been accepted that the privileges granted to inventors have b to be counterbalanced with
measures to ensure that society at large benefits from technological development. As a result,
while the patent holder is granted significant privileges, the public has a right to be informed of
the content of the invention and the privileges are limited in time so that in the long term the
public at large fully benefit from technological progress. The existing patents system is therefore
meant to foster innovation by providing specific benefits to the inventors while promoting the
public disclosure of new technologies by private parties who may otherwise tend to rely on trade
secrets to safeguard their position in the market.26
23 See, eg, Nuno Pires De Carvalho, The Trips Regime of Patent Rights (London:
Kluwer Law International, 2002)

24 See, eg, P Narayanan, Patent Law (Calcutta: Eastern Law House, 3rd ed 1998)

25 See, eg, Roberto Mazzoleni & Richard R Nelson, Economic Theories about the
Benefits and Costs of Patents, 32 J Econ Issues 1031 (1998)

26 See, eg, Andrew Beckam-Radau, Patent Law- Balance Profit Maximization and
Public Access to Technology, 4 Colum Sci & Tech L Rev 1 (2002)
 (i) Grant Conditions

The criteria for the grant of a patent are the object of a broad consensus. Most countries have
followed the same general model for granting patent rights even without or before ratifying
relevant treaties. This is, for instance, the case in India where the Patents Act 1970 was in tune
with international regulation even though India was not a member of the Paris Convention at the
time.27 The standard cumulative conditions for the grant of a patent are those of novelty, non-
obviousness and industrial applicability.

The condition of novelty serves first of all to distinguish inventions from other unpatentable
knowledge. A board distinction between invention and discoveries separates the unearthing of
causes, properties, or phenomena already existing in nature and the application of such
knowledge to the satisfaction of social needs.28 It is on this basis that the natural world used to be
deemed unpatentable and that plants would, for instance, have been seen as lacking the basic
condition of novelty given the relativity limited human input in selecting and breeding them. The
distinction between invention and discoveries is one of the criteria that has evolved throughout
the twentieth century and has led to a shift towards the recognition of life patents such a patents
on micro-organisms. While the rise of life of life patenting has been mostly visible over the past
couple of decades, the United States Congress determined already in 1930 that while a mineral is
wholly created by nature without human assistance, a plant discovery resulting from cultivation
is unique, isolated, not repeated by nature, and cannot be reproduced by nature unaided by man.29

Another aspect of novelty under the patent system is that it is by and large distinct from the
public domain. In principle, any knowledge which is already in the public domain before the
filing of the application cannot be protected through patents. This is of significance with regard
to traditional knowledge since a significant part of traditional knowledge is information which is
freely available to the public. It is also significant because the distinction between the pubic
27 India only joined the Paris Convention, supra note 1 in December 1998

28 WR Cornish, Intellectual Property: Patents, Copyright, Trade Marks, and Allied

Rights (London: Sweet and Maxwell, 5th ed 2003)

29 S Rep No 315, 71st Cong, 2n Sess at 6 (1930), HR Rep No 1129, 71 Cong, 2d Sess
at 7 (1930)
domain and novel knowledge implies under the existing patent system that only novel
knowledge can be protected. One of the practical problems associated with the notion of pubic
domain is that this imposes a duty on the relevant patent office to that inventions increasingly use
knowledge from different parts of the world, a prior art search in the country where the
application is filed may not be sufficient to determine the nature of claims. One solution to this
problem is, for instance, to determine that relevant prior art includes everything that has been
made available to the public anywhere in the world b means of written disclosure. This is the
solution adopted by the Patent Cooperation Treaty,30 a practical solution which helps in clearly
ascertaining the scope of the public domain but may not provide a comprehensive answer in the
case of traditional knowledge which has a higher likelihood of being in the public domain
without being described in written form. It also fails to indicate whether traditional knowledge
which is only known to insider in a given community should be deemed novel or part of the
public domain.31

The second condition for the grant of a patent is the requirement of an inventive step. This
implies that what is claimed as an invention must not be obvious to someone who is deemed to
be skilled in the specific field in which the invention is claimed. 32 There is no specific standard
which is set a priori but a general rule of thumb would be that in a field like genetic engineering
a person skilled in the art in someone who has knowledge of a graduate scientist or technician in
the relevant area.

The invention must also be useful or industrially applicable to be patentable. The basic idea
behind the condition of usefulness is that the novel idea should have practical use. This provides
the basis for distinguishing technological advances which van have practical applications and
other categories of advances in knowledge such as scientific theories which do not have direct
30 Article 15, Patent Cooperation Treaty, Washington, 19 June 1970, 9 Intl Leg Mat
978 (1970)

31 Cf Collective Statement of Indigenous Peoples on the Protection of Indigenous

Knowledge, Third Session, UN Permanent Forum on Indigenous Issues, New York, 10-
21 May 2004.

32 See, eg, Jeffery S Thomas and Michael A Meyer, The New Rule of Global Trade- a
Guide to the World Trade Organization 253 (Scareborough, Ont: Carswell, 1997).
applicability. Thus abstract ideas, scientific and mathematical theories as well as aesthetic
creations generally fall outside the purview of the patent system because they do not have direct
application. This is partly premised on the perceived need to keep scientific result in the public
domain so that technological development immediately and freely benefits from scientific
advances.

Besides the substantive conditions for patentability, patent applicants must also fulfill a number
of procedural requirements. Among these is the condition that a full written description of the
invention must be given. This must, at least in theory, be specific enough to allow someone
skilled in the art to reproduce the invention. This is the principle of sufficient and enabling
disclosure which is, for instance, incorporated in the proposed Substantive Patent Law Treaty.33

Even where the conditions for patentability are fulfilled, most patent regimes admit to certain
exceptions to patentability. Thus, under the TRIPS Agreement, patentability can be denied where
the commercial exploitation of the invention will, for instance, endanger human, animal or plant
life or health or cause serious prejudice to the environment. 34 Before the adoption of the TRIPS
Agreement, some patent regimes used to make a distinction between process patent covering the
method or technology through which a product is manufactured and product patent
encompassing the substance or product itself. A number of countries thus made a distinction
between product and process patents in the pharmaceutical field and only permitted the patenting
by pharmaceutical companies of the specific process through which a medicine was made but not
the medicine itself.35 This was done largely on the basis of social concerns for the broader
availability of medicines in view of the overwhelming importance of health needs. In India, this
has, for instance, been of tremendous importance over the past three decades in providing
incentives of the development of a generic pharmaceutical industry. The distinction between

33 Article 10, draft Substantive Patent Law Treaty, Standing Committee on the Law
of Patent, Tenth Session, Geneva, May 2004, WIPO Doc SCP/10/4.

34 Article 27(2), TRIPS Agreement, supra note 10.

35 See, eg, Tshimanga Kongolo, Compulsory License Issues in African Arab

Countries, 7/1 J World Intell Prop 185 (2004).
product and process patents in progressively losing its significance because the TRIPS
Agreement imposes patentability of process and product patents in all field of technology.

(ii) Rights Conferred

The main rights conferred by a patent are the rights to prevent others from manufacturing, using
or marketing the invention, the patent generally provides the exclusive right to exploit the
subject-matter of the claims, including the right to manufacture, use and market it. However, the
right to use the invention is not a direct consequence of the grant of patent. The right to exploit is
in fact, like in the case of medicines or transgenic organism, subject to a number of other
conditions in most legal orders.

These rights are provided for a limited period of time in view of the need to maintain the balance
between the reward offered to the inventor and societys broader interest having free access to
the technology. The usual period is currently twenty years, as provided for under the TRIPS
Agreement. In most countries, the duration of patent rights is similar for all categories of
inventions today. This is a surprising result because the current twenty-year period is largely an
arbitrary political choice and can be justified on economic grounds only for certain categories of
inventions but nit for all. In fact, there are different grounds justifying differential duration which
include in particular the technological significance of the invention and its social relevance. This
proposition was partly implemented with success in the Patent Act 1970 which provided for
reduced duration of process patent of seven years for substances intended for use as food or
medicine.36

On the whole, rights conferred by patents give the patent holder monopoly rights over the
invention. This implies, for instances, that patent holder can in principle determine whether they
want to manufacture the invention themselves or license it to a willing licensee. Patent holders
under the TRIPS regime can also decide whether they want to manufacture the invention in each
country where they hold protected products. In general the rights of the patent holder extend not
only to the patented product or the process itself but also to products that encompass the
invention.

36 Section 53, Patent Act 1970.

These expansive rights are, however, neither absolute nor uncontroversial. Firstly, the grant of a
patent does not necessarily ensure the right to exploit the invention in case there is a specific law
which prohibits the exploitation of a certain type of invention.37 Secondly, the exploitation of a
patent must happen within the context of national laws regulating the use of the specific
invention.38 Thirdly, patent rights can be curtailed in certain circumstances. The most significant
tool at the disposal of states is compulsory licensing. This allows the state to force the patent
holder after a few years to provide license to other manufactures in situations where a product is
not sufficiently available in the market to cover all the needs of the population. Compulsory
licensing is an important tool at the national level to ensure that the monopoly granted to the
rights holder does not lead to denying access to technological progress for the public, in
particular if the product is either not manufactured or is in insufficient quantities. This is
particularly important in the case of medical patents because unavailability or insufficient
availability of a patented drug has direct public health implications.39

(iii) Patents in Practice

The practical usefulness of the patents system with regard to the promotion of economic
development has been the object on on-going debates for a long time. This has been the case in
developed and developing countries. This is in large part due to the fact that the patents system
constitutes an exception to the market mechanism which can only be justified if it fosters
sufficient benefits to society at large. The reason why the system has been controversial in
because benefits for some actors have sometimes bees losses for other actors and the patents
systems appears justifiable or not depending on the specific focus the analysis takes.

In general, the patent system has proved a useful economic tool for bigger companies and an
indispensable one in the case of some industries like the pharmaceutical industry.40 There remain
doubts, however, whether the monopoly granted always promotes innovation, a problem which
37 See, eg, Sigrid Sterckx, European Patent Law and Biotechnological Invention in
Sigrid Sterckx ed, Biotechnology, Patent, and Morality 1 (Aldershot: Ashate, 1997).

38 Plant Generic Systems v Greenpeace, European Patent Office, T 0356/93, 21

February 1995.

39 On compulsory licenses for medical patents, see Chapter 2, page 82.

has become more starkly visible in recent years. Another issue concerns the economic usefulness
of the patent system for small economic actors. In general, it appears that even small companies
that make use of the patent systems do not think it is an important source of information for
innovation. The appears to be in part because it is mostly companies that can not only bring
about inventions but also provide the innovations that lead to a commercial product that mostly
benefit from the patent system.41

the evidence provided by the existing system would not lead to a recommendation to set it up if it
did not exist today but that conversely there is not enough evidence to recommend abolishing it
altogether.42

40 See, eg, Frederic M Scherer, Le Systeme des brevets et linnovation dans le

domaine pharmaceutique, Revue international de driot economicque 110 (2000/1)

41 Stuart McDonald, Exploring the Hidden Costs of Patents, in Peter Drahos and
Ruth Mayne eds, Global Intellectual Property Rights- Knowledge, Access and
Development 13 (Basingstoke: Palgrave Macmillan, 2002).

42