While looking for a new career path, I am finding that the term “humanitarian IPR” resonates. Why? In part because it is useful to look at things no one else is looking at (Blue Ocean strategy). In part because it would be nice to apply whatever skills I might have in IPR and innovation to something socially meaningful for a change.
A definition is needed. For lack of a better guideline, I consider the UN Declaration of Human Rights to define the limits of what is acceptable. Any patent that could severely infringe on these rights, especially in the case of highly vulnerable people, would be “humanitarian IPR”. The term as I use it is in principle value-neutral. Humanitarian IPR can be abused, or it can be used benevolently.
But there the simple part ends. It is extremely difficult to define what “infringe” means in practice. One really needs to look at the purpose of a patent rather than just its content, which is terrifyingly difficult or impossible.
Should humanitarian IPR be put into a category of its own? Intellectual property is already divided into at least two major segments: patents and copyright. Inventions and works of creative art are so different that it makes no sense to apply the same rules to them. (In this context, it doesn’t matter whether one finds copyright ridiculous or not. They are different, and need different rules). Many countries also have various kinds of petty patents, innovation patents, design patents, and so on the cover cases which do not need the full utility patent arsenal.
A full revamp of the IPR system is probably what is needed, but if that cannot be realistically achieved, could it at least be possible to carve out niches for which the rules are different? Something like this has been hinted by Richard Posner in a blog posting. Most interesting quote:“Although there are some industry-specific differences in patent law, for the most part patents are “one size fits all,” so far as length of protection and criteria and procedures for the grant of a patent are concerned. In contrast, copyright protection tends to vary considerably across different media.”
The huge advantage of a separate niche
Having a well-defined niche for humanitarian IPR could allow new types of funding modes specific for that segment. The Nobelist Joseph Stiglitz has written an article “Prizes, not Patents”, proposing“a medical prize fund that would reward those who discover cures and vaccines. Since governments already pay the cost of much drug research directly or indirectly, through prescription benefits, they could finance the prize fund, which would award the biggest prizes for developers of treatments or preventions for costly diseases affecting hundreds of millions of people.”
Furthermore,“Especially when it comes to diseases in developing countries, it would make sense for some of the prize money to come from foreign assistance budgets, as few contributions could do more to improve the quality of life, and even productivity, than attacking the debilitating diseases that are so prevalent in many developing countries. A scientific panel could establish a set of priorities by assessing the number of people affected and the impact on mortality, morbidity, and productivity. Once the discovery is made, it would be licensed.”
I will later be analyzing cases in which this kind of a system could be useful. A large one-off prize to the patent owner, in exchange for placing the patent in the public domain, could end a lot of the difficulties in one blow.
There are two problems here. The first one is acerbically discussed in “The Case Against Patents” by Boldrin and Levine (summarized in The Atlantic). Whenever there are holes in the patent laws, large companies and their lawyers will gravitate toward those holes. Litigation will change, but its amount will not.
For the humanitarian IPR problem, the hole would be in defining what is humanitarian and what is not, with large players hopping across the boundary in whatever direction best suits them. But even this could be better than the present situation, in which there are no restraints on what can be patented.
Perhaps even more seriously, I see a psychological issue that makes Stiglitz’s argument less convincing. If development aid money is used to give prizes to Western companies rather than developing countries, what kind of psychological effect will that have on the donors? Will they be even less willing to donate the 0.7% of GDP that is now a target but almost never reached?
Or, would a selfish interest (supporting local R&D) actually make them more willing to donate? It could go either way.
There are more open questions than answers in this area. That is why it would be a worthwhile subject to pursue.