Reference - Open Source Technology

NOTES AND LINKS 

HOME PAGE 

ALL STOVES 

Against Patents

OST WHY? 

CONTACT 

Open Source Technology is

-         More reliable and evolutionary as compared to closed source technologies.

-         Open-source technology is peer-reviewed.

-         Much of it is contributed by individuals who simply need an improvement to serve their own needs.

 

THE CASE AGAINST THE PATENT SYSTEM

 

by Pierre Desrochers

  
 One of the few topics over which free-market proponents often radically disagree is the relevance of the patent system (Kinsella, 2000). According to some, without patent protection an inventor has no incentive to invest time and money into something that can be easily copied by its competitors without incurring significant R&D costs. Patents therefore correct this market failure by providing a temporary monopoly to the inventor. Even though monopolies typically involve a misallocation of society’s resources, any welfare losses due to the restrictions in disseminating an invention are outweighed by the incentive to invention they provide. Besides, the fact that the technological bases for these rights are made public contributes to the body of generally accessible information. Furthermore, to the extent that patents cover successful process innovation, lower costs of production and lower market prices will result even if the patentee behaves like a rational monopolist.

 

          Despite this rationale, there has always been a set of thorny issues about the patent system. For example, patent holders may capitalize on inventions by suppressing their development, even though these inventions would benefit the public. Furthermore, the patent system provides incentives to focus on what is patentable and on developing certain superfluous innovations simply to avoid what is covered by a patent. 
  
          The arguments for and against patents are probably as old as the patent system and numerous studies on both sides of the debate can be found. Yet, most analytical and historical examinations of patents and their meaning for technology and economic growth are generally deemed inconclusive. Actually, the authors of many empirical studies point out that patents do not play anything like a dominant role among the various mechanisms by which returns from innovation are captured. Indeed, for most firms trade secrets, know-how, lead time to markets, continuing technological innovation, licensing, name recognition, service capabilities and the use of complementary marketing and manufacturing capabilities are often deemed more effective than patent protection. In the end, in virtually all branches of industry, the absence of patent protection would have had little or no impact on the innovative efforts of a majority of firms (Mazzoleni and Nelson, 1998; Cohen et al., 2000). To understand how this can be, one must go back to the essence of what patents are (and are not) and to the way human creativity actually generates new ideas and products. 
  
A Right to Exclude, but not to Use  
  
          A patent is a property right granted by a government to an inventor or his assignee to exclude others from making, using, or selling an invention fulfilling certain requirements, most notably that it performs a « useful » function. What needs emphasis, however, is that a patent only grants the patentee the right to prevent others from practicing the patented invention, not of using it. There are thus special circumstances where a patent owner cannot use his own invention because it would infringe on the patent rights of others. For example, inventor Jones patents a device comprised of components A, B, and C. Inventor Smith improves on Jones’s invention by adding D. Smith can then get a patent on the new device with components A, B, C, and D. Inventor Smith can prevent everyone from using the device with these four components, but he cannot use it either because it infringes on inventor Jones’s patent. On the other hand, Jones cannot add component D to his patented device because that would infringe on Smith’s patent. Such situations are very typical. As one American lawyer has put it: « Everybody is infringing everybody’s patents all the time. So one guy puts a pile of papers five inches high on the table, and the other guys have a smaller pile » (The Economist, 2000: 76). What then typically results in such a scenario is a cross-license between the original and improvement patent owners, with or without money being thrown in.  
  
          Another issue that must be stressed is that the final responsibility for validating or invalidating a patent lies with the court. In practice, the burden of proof of infringement lies with the patent owner because the alleged offender is held innocent until proven guilty. Furthermore, the patent office is not responsible for failure to discover previous conflicting claims, which means that a patentee never knows for sure if his patent will be deemed valid by a judge (who might also lack the training to understand the technical aspects of a case). Even though it is often argued that there is a presumption of validity on behalf of the patentee, as one critic pointed out many decades ago: « Numbers are stamped by an impartial numbering machine but patents are granted by all-too-human examiners » (Carter, 1939: 44).   
  
          Considering the huge amounts of money needed to use the patent system successfully (i.e. to hire patent attorneys and industrial drawers, to file applications, to manage a portfolio of patents in many countries, to renew patents and to sue alleged infringers in courts), such a process is not too comforting even if in some cases damage suits have proven very lucrative. Actually, a patent protects the inventor only so far as the inventor’s money will carry him in the courts, for the more financially endowed party to a suit might prevail simply by bankrupting its opponent. It is therefore not surprising that many individuals and corporations do not seek patent protection because they see no added value to it. This will typically be the case when technological advances are very rapid, difficult to police, costly to copy or are likely to infringe on other patents.  
  

  
     « Even an anonymous author writing in a brochure of the Canadian Intellectual Property Office had to admit that 90% of all patented inventions are minor improvements on existing patented devices. »   
 

 
          Despite all these flaws, however, patenting activity has grown substantially in the United States since the early 1980’s. Why is this the case? As patent law has remained fairly constant, this is most probably due to the emergence of many new technologies related to everything from genes to e-commerce. In some instances, however, many first-time inventors operate under the delusion that a patent gives a reasonable presumption of the possession of salable and valuable property. The neophyte is told by friends who have no detailed knowledge of the patent system and by « invention professionals » who stand to make easy money from the patent filing process that intellectual protection is the first and last rule of the inventor (Desrochers, 2000).  
  
          On the other hand, firms who employ people who know better will typically patent for reasons that go beyond directly profiting from a patented innovation. Among their most prominent motives are the prevention of rivals from patenting related inventions, the use of patents in negotiations (especially for cross-licensing) and the prevention of suits (Cohen et al., 2000). In short, in these instances patents are nothing more than « protection money » that is being paid either to block competition or to gain access to a particular technological area.  
  
          The previously listed flaws of the patent system are serious enough to make the case for the abolition of the patent system. An even stronger case can be made, however, when one considers that the patent system rests on a fundamentally flawed view of human creativity. 
  
A Misleading View of Human Creativity  
  
          As many psychologists and historians of technology have shown, innovation does not proceed through major breakthroughs by specific individuals, but rather through the collaboration of different people who, through small and cumulative improvements, yield novel and useful artifacts over time (Basalla, 1988). All of patent law, on the other hand, is based on the assumption that an invention is a discrete and novel entity that can be assigned to the individual who is determined by the courts to be its legitimate creator. The associations of an invention with other existing or past artifacts are therefore obscured. Despite its philosophical foundation, however, the patent system cannot entirely obscure the true nature of technological change. As I have already mentioned, virtually every new patent infringes in some way on other patents. Furthermore, most patented innovation are typically very minor improvements. As the economist F.M. Scherer (1987: 124) has noted: « As the bleary-eyed reviewer of some 15,000 patent abstracts in connection with research… I was struck by how narrowly incremental (adaptive?) most "inventions" are. » Even an anonymous author writing in a brochure of the Canadian Intellectual Property Office (1994: 8) had to admit that 90% of all patented inventions are minor improvements on existing patented devices. 
  
          What the incremental view of technological change implies is that the contribution of an individual to a new device is likely to be small. Thus an inventor that comes up with a better mousetrap is building on the previous work of metallurgists, machinists and wood-workers, but also on the contribution of other individuals who previously worked on similar devices (if only by learning what did not work). Granting him a 20-year monopoly from the initial filing date seems somewhat outrageous in this light. 
  
          It must also be kept in mind that technological innovation implies a continuous flux, for creative individuals never cease to improve existing artifacts, whether they be cars, computers or ballpoint pens. Why do some people innovate relentlessly? As Petroski (1992: 22) puts it: « The form of made things is always subject to change in response to their real or perceived shortcomings, their failures to function properly. This principle governs all invention, innovation, and ingenuity; it is what drives all inventors, innovators, and engineers. » How do creative individuals come up with new things? Essentially, by combining previously unrelated things in a new way. 
  
          For example, in order to increase the assembly rate of their tremendously successful Model T, engineers and technicians at the Ford motor company drew inspiration from the « dissasembly » lines of the Chicago meatpackers, the grain conveying machinery of the flour milling and brewing industries along with some process technology used in the food canning industry (Hounshell, 1984). The fact that people solve problems by combining existing things in a new configuration goes a long way toward explaining the persisting recurrence of « simultaneous inventions » throughout history. The patent system, however, will unduly penalize inventors who come up independently with a solution to a problem that might be similar to something that has already been patented.  
  
          Another recurring feature of creative individuals is that they do not come up with « the » solution to a problem, but rather always improve their particular way of solving it. As DeGregori (1985: 5) put it: « Progress in the human endeavor is most meaningfully defined not in terms of the ultimate or final solution to problems but in creating smaller or less important ones than those we solve. » The logical outcome, as Petroski (1992: 22) points out, is that « since nothing is perfect, and, indeed, since even our ideas of perfection are not static, everything is subject to change over time. There can be no such thing as a “perfected” artifact; the future perfect can only be a tense, not a thing. » It is therefore usually only a matter of years after an inventor has patented a « basic » idea that he must improve it beyond recognition in order to turn it into a commercially viable product. An inventor spending his resources on patenting his basic idea without having perfected his invention in every practical detail is likely to waste his resources because he is destroying any possible value his patent might have had. 
  
          One last feature of technological change that deserves mention is the fact that there is always a surprisingly wide range of alternative methods of getting a job done, each being characterized by a different mix of inputs. It is therefore not surprising that most interesting inventions can easily be « patented around » by making small modifications only a few years after a patent has been granted. 
  
Conclusion 
  
          Anyone familiar with the world of inventions knows that there is no short supply of new ideas.  Indeed, most companies are typically flooded by request from inventors who have come up with a « new and improved » way of doing something. In most cases, however, the new invention has some major flaw that will make it either too expensive or impractical. The patent system reflects this reality, for the vast majority of patents end up their lives unused in the files of patent offices, corporations and individual inventors. In 1869, United States Commissioner of Patents Samuel Sparks estimated that at most 10% of all patents had commercial value. Most modern commentators still agree that this estimate holds true today or is even too optimistic (Basalla, 1988: 69). In views of all the flaws of the patent system, a case can therefore be made that there would almost certainly be even more innovation in its absence, if only because more money would be available for R&D at both the individual and corporate level if it was not spent on patents and lawsuits. 
  
          The case against the patent system is even stronger if one considers that an inventor is, to some extent, protected by the law as long as he clearly explains to another party that he is  presenting him an idea which is his personal property. The use of a « confidentiality letter » offers increased guarantees, although in practice it is probably no more valuable than a patent. In the end, however, unpatented inventions are very rarely stolen for, as Carter (1939: 36) warned inventors many decades ago: « Don’t worry about having your undeveloped invention stolen.  Nobody wants it. Nobody will want it when you have completed it and are ready to sell. Selling fully developed inventions is hard enough and only an imbecile would steal a crude idea. » When an invention has been proven useful and all its technical difficulties have been worked out, however, what an inventor needs more than anything is instinct in choosing the right people to work with. Ultimately, a patent adds nothing to the value of an impractical invention and little to one that might seem promising.  

 

—, « Patent Wars », The Economist 355 (8165), April 8, pp. 75-78, 2000. 

Basalla, G., The Evolution of Technology, Cambridge, Cambridge University Press,1988.

Canadian Intellectual Property Office, A Guide to Patents, Ottawa, Publications Centre Communications Branch, Industry Canada, 1994. 

Carter, H.D., If You Want to Invent, New York, The Vanguard Press, 1939.

Cohen, W., R.R. Nelson and J. P. Walsh, Protecting their Intellectual Assets: Appropriability Conditions and Why U.S. Manufacturing Firms Patent (or Not), Working Paper 7552, Cambridge, National Bureau of Economic Research (available at http://www.nber.org/papers/w7552), 2000. 

De Gregori, T.R., A Theory of Technology: Continuity and Change in Human Development, Ames, Iowa State University Press, 1985. 

Desrochers, P., De l’influence d’une ville diversifiée sur la combinaison de techniques: Typologie et analyse de processus, Ph.D. dissertation (Geography), Université de Montréal, 2000. 

Hounshell, D., From the American System to Mass Production, 1800-1932, Baltimore, Johns Hopkins University Press, 1984. 

Kinsella, N.S., « Is Intellectual Property Legitimate? », Paper presented at the Austrian Scholars Conference 6, Auburn, Alabama, March 25, 2000. 

Mazzolini, R. and R.R. Nelson, « The Benefits and Costs of Strong Patent Protection: A Contribution to the Current Debate », Research Policy 27 (3), p. 273-284, 1998. 

Petroski, H., The Evolution of Useful Thing, New York, Random House, 1992. 

Rosegger, G., The Economics of Production and Innovation: An Industrial Perspective, Oxford, Pergamon Press, 1986. 

Scherer, F.M., « Comment » on R.E. Evenson « International Invention: Implications for Technology Market Analysis », In Zvi Griliches, ed. R&D, Patents, and Productivity, Chicago, University of Chicago and National Bureau of Economic Research, p. 123-126, 1987.

http://www.quebecoislibre.org/000902-3.htm

 

Intellectual Property: Protecting a Patent

Charles Boulakia
Canada
5 March 1999

Usually, once someone has obtained a patent or two, the first thing they want to do is either sell that patent or start up their own company to exploit the patent (that is, make lots of money manufacturing and selling their invention). If you're planning on selling your patent, good luck to you! It's probably the best way of getting quick cash for something you've invented. But don't be surprised if it's not a whole lot of cash. If you're planning on starting a company and doing it all yourself, again, good luck! Starting a company is a tough process. Here are two little tips on protecting your patent that might help you out.

Protecting a Patent in the Courtroom

The first thing you've got to know is that, if you're just a small company, protecting a patent can be very, very difficult. If a larger, but kind of unethical company wants to infringe on your patent, they will. And often, in a small company, the "monopoly right" that the patent offers you is just about the only thing keeping you in business.

Well, the problem is that if your patent is worth a lot (that is, if the company infringing on your patent thinks they can make millions of dollars off your idea), chances are, there's not a whole lot you can do. There are two basic strategies: Suing for breach of patent, or negotiating a licensing fee with the company infringing on your patent.

Suing for breach of patent is what's done most often. However if the patent is worth a lot of money, and you're a small company, this can be very difficult to do. A larger, patent-infringing company who's making a lot of money off your patent can usually drag courtroom proceedings out for a long time -- often for years. This causes two problems: First, while the proceedings are taking place, they often continue infringing on the patent (putting a significant dent in your company's revenues and profits). Second, because your company needs lawyers to represent it, deliberately dragging out courtroom proceedings in this way can cost you a lot of money. Your company could easily go bankrupt because of the cost of the proceedings (this often happens with small companies).

Unfortunately, there are few things you can do about this problem. The first is that, if your patent is really worth that much, you can sometimes find financing for your courtroom proceedings in the form of an equity investor. That is, someone who sees that your patent is being infringed (and a company is making tons of money doing it) may want to take the "bet" that you could make just as much if the patent wasn't infringed upon. This person may finance your courtroom costs for a percentage of your company. The second, more frequent way is by having a "big-shot" as part owner of the patent. They may want to enforce their patent rights on principle alone. An example is a large, research-based university. An institution of this nature may realize that, if they get a reputation for enforcing any and all of their patents, no one will mess with any of their patents. This reasoning is why Stanford and Harvard are often seen in court, defending their patent's rights.

The other strategy I mentioned was negotiating a licensing fee. You may ask: Why would any company, knowing the problems you're going to have defending your patent rights in a courtroom, ever pay you licensing fees? Well, remember that the courtroom battle will often cost the offending company millions of dollars as well: It may be less expensive for them to just pay you a small license fee, rather than pay a lot of money trying to make you go bankrupt.

Protecting Your Patent From Creditors

The second group of people you need to protect your patent from are creditors: that is, people that lend your company money. The issue here is that they may ask you for your patent rights as collateral. Also, if the company should fail, all of its assets go into receivership, and this might include your patent. Because your patent may be the most valuable part of your business, you don't want this to happen.

In order to protect yourself (to a certain degree) from having this happen, you can do what a lot of technology-based companies do: Set up two companies. Company A can own the patent and license it to company B. Because the only asset for company A is the patent, and the only purpose for company A is to earn money licensing the patent, chances are it's not going to go bankrupt: It has no costs, and no creditors. If company B goes bankrupt, well, at least you've still got your patent.

Because this is a very common practice, many creditors ask company A to co-sign loans to company B before they give them any money; however, the two-company approach gives you some protection and gives you a little more control if things turn sour.

http://sciencecareers.sciencemag.org/career_development/previous_issues/articles/0070/intellectual_property_protecting_a_patent/(parent)/12098

 

 

A worldwide fight against biopiracy and patents on life

By Martin Khor

There is growing worldwide opposition to the granting of patents on biological materials such as genes, plants, animals and humans. Farmers and indigenous peoples are outraged that plants that they developed are being 'hijacked' by companies. Groups as diverse as religious leaders, parliamentarians and environment NGOs are intensifying their campaign against corporate patenting of living things.

WORLDWIDE opposition to biological piracy' is rapidly building up as more and more groups and people become aware that big corporations are reaping massive profits from using the knowledge and biological resources of Third World communities.

There is growing public outrage that these companies are being granted patents for products and technologies that make use of the genetic materials, plants and other biological resources that have long been identified, developed and used by farmers and indigenous peoples, mainly in countries of the South.

Whilst the corporations stand to make huge revenues from this process, the local communities are unrewarded and in fact face the threat in future of having to buy the products of these companies at high prices.

The transnational corporations are racing one another to manufacture pharmaceutical and agricultural products, the main ingredients of which are the genetic materials of the medicinal plants and food crops of these local communities. The firms are also collecting other living things, ranging from soil microorganisms to animals and the genes of indigenous people, which they use for research and making new products.

These companies are rushing to apply to patent the new products containing the collected genetic materials, so as to prevent competitors from using them. They can then reap larger profits from being able to hike up prices for the products, or by charging royalties to other firms wishing to use the technology.

There is much at stake in this great race of companies to patent ahead of their rivals, for the coming century is already being termed 'the age of biology', when products derived from biological materials are expected to increasingly replace those made from metals and chemicals.

The genes of living organisms are the basic 'raw materials' of the new biotechnologies. The 'Gene Rush' has thus become a new version of the old 'Gold Rush', in the scramble for future profits.

Farmers and indigenous communities, backed by citizen groups, are protesting against the companies being given patent rights, as it is these communities that have been responsible for identifying and evolving the use of the plants for food, medicines and other functions.

The knowledge and use of 'biodiversity' resides with these farmers and indigenous people, which have shared their knowledge and plants freely. Yet through patent applications, the companies are now claiming the exclusive right to produce and sell many 'modified' plants and animals, which have been manipulated to contain selected foreign genes.

Third World communities are concerned that in future they will have to pay high prices for these materials, which in the first place they (more than any other party) had after all developed.

The knowledge, innovation and efforts of these communities are not acknowledged (and indeed are discarded) when the legal 'intellectual property rights' systems grant patents on genetic and biological materials and on living organisms to corporations. This injustice is being fought at different levels by farmers, indigenous people and public interest groups. For the past few years, NGOs such as RAFI, GRAIN and the Third World Network have been networking to raise general awareness of the phenomenon of 'biopiracy'. Indigenous groups and farmers are also getting together to put forward their viewpoints. In recent months, legal challenges have been filed against patents granted on biological products. In a parallel move, new campaigns have been launched by religious leaders and NGOs against the patenting of life.

The following are some of the actions by various groups around the world.

Legal challenges to patents

Some groups have recently filed legal petitions or test cases to challenge patents already granted.

* In Washington in September 1995, more than 200 organisations from 35 countries filed a petition at the US Patent and Trademark Office calling for the revocation of a patent given to W R Grace company to use a pesticide extract from the neem tree. They argue that the company has wrongfully usurped an age-old biological process used by millions of farmers in India and other countries for generations. The legal challenge is led by the US group Foundation on Economic Trends led by Jeremy Rifkin, with other key petitioners being the Research Foundation for Science, Technology and Natural Resources Policy (RFSTNRP) and the Karnataka Farmers' Union (both from India), the International Federation of Organic Agriculture Movements (IFOAM), and the Third World Network.

* In Brussels another legal petition was filed in June 1995 at the European Patent Office against a patent it had granted to W R Grace for a method that extracts the neem oil for use in controlling fungi on plants. The three opponents, European Member of Parliament Magda Alvoet, Indian scientists Vandana Shiva of the RFSTNRP, and IFOAM President Herve la Prairie, argue that the patent was wrongly given as the claims for the technique lacked novelty, inventiveness and clarity. The petition argues that the invention is now new as the patented method for extracting neem oil is a standard method used for many decades, whilst the anti-fungi effects of neem oil have been known in India for centuries and thus cannot be considered a 'discovery' as claimed by the company.

* In March 1995, the Swiss Supreme Court, in a landmark decision, ruled that the manzana variety of the camomile plant may not be patented. It revoked the patent that the Swiss patent office had granted in 1988 to the German pharmaceutical company Degussa/Asta Medica on its manzana variety. The case had been brought to court by a Swiss farmer Peter Lendi, president of the Bio-Herb Growers' Association.

* In February 1995, the European Patent Office withdrew key parts of a patent granted to a Belgian company (Plant Genetic Systems) and a US company (Biogen Inc.) for genetically engineered herbicide resistant plants. The patent was for plant cells made resistant to glutamine synthetase inhibitors by genetic engineering, and originally covered not only the gene which had been moved from a bacteria to various plants but also all plant cells and plants which contain the gene. After a challenge by Greenpeace, the Patent Office's Appeal Board ruled the patent may only cover genetically engineered genes and plant cells but cannot extend to a whole plant, its seeds and future generations of plants grown from the cells. The decision seems to imply that in Europe, patenting of genes and cells is permissible but not of seeds and plants. The limits thus set on patenting will have serious implications for the biotechnology industry.

Farmers and indigenous people against life patenting

Meanwhile, there have been activities by many different groups, including farmers, indigenous people, parliamentarians, religious leaders, and NGOs opposing the patenting of all life-forms, or living things.

In India, farmers' movements led by M D Nanjundaswamy of the Karnataka Farmers' Union, are campaigning against the patenting of seeds and plants and the operation of foreign grain companies in the country. In 1993, half a million farmers rallied in Bangalore to protest against the implications of the Uruguay Round treaty on intellectual property rights, which opens the door to patenting of genetic materials, seeds and plants.

Indigenous peoples' groups have held regional meetings in South America, Asia and the Pacific, to voice their opposition to the granting of patents to companies on plants and their genes. Also, at the UN Women's Conference in Beijing, 118 indigenous groups from 27 countries signed a declaration demanding 'a stop to the patenting of all life forms' which is 'the ultimate commodification of life which we hold sacred.' They also demanded that the Human Genome Diversity Project be stopped and a rejection of patent applications for human genetic materials.

Parliaments vote against life patents

Parliaments have joined in the fight by opposing proposed laws that would legalise patents on life. In March 1995, India's Upper House of Parliament forced the government to defer indefinitely a patent amendment bill to bring the Indian Patent Act in line with the World Trade Organisation's treaty on intellectual property rights. The bill would have allowed for the patenting of life forms.

Also in March, the European Parliament voted against the European Commission's proposed directive on 'legal protection of biotechnological inventions'. The directive would have allowed for patenting of biological materials and microbiological processes, with only some restrictions. The European Parliament vote was a major victory for NGOs such as GRAIN and for Green groups in the Parliament that had lobbied on this issue for many years.

Religious leaders and NGOs widen the campaign

In May 1995, leaders of 80 religious faiths and denominations (including the Protestant, Catholic, Muslim, Hindu, Buddhist and Jewish faiths) held a joint press conference in Washington announcing their opposition to the patenting of genetically engineered animals and human genes, cells and organs. 'We believe that humans and animals are creations of God, not humans, and as such should not be patented as human inventions,' they said in a signed statement. The leaders have launched an educational campaign to raise theological concerns over the patenting of life. Religious groups in other countries are also taking up the issue.

Environment and development NGOs have also been increasingly active. Groups like the Third World Network, RAFI and GRAIN have been carrying out educational activities and also carrying out lobbying in the Biodiversity Convention. A coalition of 14 United States groups in May signed a joint statement after a conference at Blue Mountain. 'As part of a world movement to protect our common living heritage, we call upon the world and the US Congress to enact legislation to exclude living organisms and their component parts from the patent system,' says part of the Blue Mountain Declaration.

Crucial global battles ahead

The campaign against life patenting is likely to spread, with more actions taken up by public interest groups at national level, and increased networking among these groups.

At international level, the World Trade Organisation and the Biodiversity Convention are two critical fora for setting principles and legal frameworks on the patenting of biological materials and life forms.

The WTO's trade-related intellectual property rights (TRIPs) agreement will have the most decisive influence over national laws. TRIPs has ambiguous language in its clause on living organisms: patenting of microorganisms is compulsory, plants and animals can be excluded, but protection of one kind or another is required for plant varieties. This clause is up for review after four years, and is already on the agenda of the WTO's trade and environment committee. The outcome of the review process will be of crucial importance.

The Biodiversity Convention is presently more 'friendly', in recognising 'farmers' rights' to their knowledge over the use of biodiversity. The rights of indigenous people are also likely to enter the Convention's future agenda. The treaty's references to intellectual property rights is finely balanced between recognising the need to implement IPRs and the need to ensure that IPRs do not block the sustainable use of biodiversity.

The challenge for those campaigning against life patents is to ensure that the WTO does not make it compulsory for member countries to patent living organisms, and to develop within the Biodiversity Convention the case against biopiracy and concrete measures to counter it.

Martin Khor is the Director of Third World Network.

http://www.twnside.org.sg/title/pat-ch.htm