Abstract
As the result of a Brazilian initiative, a resolution was adopted by the United Nations General Assembly in 1962 concerning patents and developing countries.1 This move by Brazil set off the current debate on patents and developing countries both within and outside the United Nations.
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References
G. A. Res. 1713 (XVI) January 8, 1962.
Doc. A/C.2/L.565, November 8, 1961.
Preambular paragraph six of the original draft resolution. The only change made in its final version was that the phrase “applied in such a way as to reconcile the legitimate claims of patent holders with the needs and requirements of the economic development of underdeveloped countries” was replaced by “applied in such a way as to take wholly into account the special needs and requirements of the economic development of underdeveloped countries as well as the legitimate claims of patentees.” (part of preambular paragraph six of final text, supra, n. 1).
The operative part of the original draft resolution also suggested that States, in making or revising their patent laws, should consider both national economic requirements and the rights of patentees, should eliminate abuses, etc., “without interfering with the rights of industrial property recognized by international law.” The implication that general international law recognizes certain standards of protection—apart from the minimum standard of protection of aliens—is questionable.
Cf. T. Hesser, “Det immatriella rättsskyddet och u-länderna”, NIR, 34: 156, 1965; the fact that Brazil is a Member of the Union seems to show that the draft resolution was directly aimed at the Union.
General Assembly, Official Records, Sixteenth Session, Second Committee, 778th Meeting, December 7, 1961.
See, in particular, General Assembly, Official Records, Sixteenth Session, Second Committee, 779th, 781st, 786th and 789th Meetings. One Delegate (New Zealand), at the 779th Meeting, agreeing that there were both advantages and disadvantages of patent protection for economic development, said, in part: “Internationally the patent system was governed by the Paris Union, which, although it might attempt to protect inventors rather than assist the underdeveloped countries, nonetheless contained a clause providing for its own revision”; another Delegate (Holland), at the 779th Meeting, objected to the calling of an international conference, saying in part: “An international conference would duplicate the existing perfectly effective procedure for the revision of the international patent system … Throughout its some eighty years of existance, the International Bureau of the Union had taken into account the interests of the developing countries … … the sponsors of the draft resolution appeared to be setting ‘the interests of patentees’ in opposition to ‘the needs and peculiarities’ of the economies of the underdeveloped countries. In so doing, they did less than justice to the economic value of the patent system, the fundamental purpose of which was to encourage research and exchange of technological discoveries.”—Since the object of developing countries in joining is primarily, neither to “encourage research” nor to “exchange technological discoveries”, but to obtain such technology in one-way transactions, it seems justified to question whether the traditional system is optimally adapted to their needs.
Doc. A/C.2/L.627.
Twenty-one votes to twenty with 25 abstentions. Doc. A/5056, p. 77.
The report was submitted to the Committee for Industrial Development at its Third Session. Doc. E/C.5/35, April 30, 1963.
“The advice to cooperate with BIRPI was certainly well-founded. To start with, the United Nations Secretariat tried to work alone but the result was what could have been expected. Its first report [1963], was materially deficient and was exposed to a crushing criticism from BIRPI.” [translated from Swedish] Hesser, op. cit., p. 157.
Doc. E/3861/Rev. 1, March, 1964. The Report was based on the following written material: (1) replies by fifty-three countries to a questionnaire (text and answers reproduced in annexes B and C of the Report); forty-eight of these replies had been submitted for the interim report. (2) a survey of patent legislations in thirty-four countries by BIRPI (reported in annex D); such a survey of thirty-six countries had been submitted for the interim report. (3) a study of patent legislation in ten countries by the I.C.C. and the I.A.P.I.P.; the study was submitted already for the interim report. (4) information contained in official reports on patent law revision from a few countries.
Chapter VI of Part II, Patents and Development of Indigenous Technology. Patents to Domestic Inventors and Innovators, certainly would warrant some attention. Since its subject matter is not central in the present context, some of the points made will merely be indicated. The Report does not definitely pronounce itself in favor of the traditional patent system. Several arguments both in favor and against the patent system are questionable and at least in one case appear contradictory, (1) After enumerating a series of possible incentives of which the patent system is “not necessarily the most important”, (par. 298), the Report makes the following point against monetary or other awards to inventors: “… such rewards … for new processes which do not apply to priority fields within a country’s development plan may be expensive without commensurate benefits to an economy.” (par. 299)—If there was one major point in favor of selective rewards as opposed to a general reward system for developing countries, it would certainly be the ability of the former system to direct inventiveness to priority fields. (2) Two arguments in favor of granting patents are said to be the following (par. 300): that the discouragement and limitation on imitation and competition (recognized as a drawback in developed countries) may not be a drawback at early stages of development, where national plans may often only permit a single enterprise in various sectors; and, that patents stimulate the search for alternative processes, i.e. “inventing around.”—While thus on the one hand minimizing the harmful effects of the monopoly grant for the reason that a country’s scarcity of resources will often not permit “duplicate” enterprises, on the other hand, the “inventing around” argument, which must precisely for the reason of scarcity of resources be especially costly to developing countries, is said to favor the patent system. (3) Stressing the fact of scarce research resources the Report says (par. 302) that care must be taken so that the patent system does not divert these limited resources to applied technical research “to the exclusion of more urgent and more important problems” and (par. 304) that it is not used “to retard and block local production”, and that “in spheres of production vital to the national interest … limitations on patentability or … the scope of the patent grant … are natural, as is evidenced by the presence of such limitations in the legislation of many countries.”—The fact that many countries have such provisions does not lessen the theoretical ambiguity involved. (Cf. Supra, pp. 39-40) The weakness of this last argument would seem to be particularly striking in the case of developing countries.
Full title of Chapter IV: The Role of Patents in the Actual Transfer of Technology: Production of Patented Products and Use of Patented Processes Within the Developing Country (par. 248-76).
Par. 248.
par. 261. Implicitly recognizing that non-business risks may be important, and saying (ibid.) that “patent protection … may or may not have a high place among … profitable conditions and guarantees which he [the patentee] expects” the Report assumes that in many cases patent protection could be replaced by other forms of guarantees, adding, however, that “even where such alternatives exist, patent protection may well be a cheaper and more effective way of giving the foreign patentee what it needs to attract him.” (Ibid.)
par. 264; in order that the compulsory license be effective, it could have been added, it is also necessary that there exist potential licensees “willing and able” [as the Report puts it in another passage (par. 254)] “to give the necessary commitments—in itself not always easy in underdeveloped countries.”
“His [the foreign patentee’s] knowledge of the necessary non-patented technology, his management knowhow, his access to necessary components, capital or markets and the possession of his protected brand name will usually give the foreign patentee a very strong position in negotiating the conditions of the license even if his position as a patent holder should be weakened by the pressure of compulsory licensing … It must be realized that the royalty paid will be only one dimension of the total bargain in which the foreign patentee might be involved.”
Operative paragraphs 1(b) and 1(a) of the two texts respectively.
Par. 276; “This burden” the Report continues (Ibid.) “could be estimated only as a result of detailed studies of specific countries and industries. Such studies do not seem to have been carried out and they would in any case involve a good deal of non-measurable judgement.”
Full title of Chapter V: Foreign Patents without Transfer of Technology: Import of Patented Products and Processes (pars. 277-95).
Cf. supra, pp. 129-31; the Report (par. 283) asserts that, on the one hand, frequently the markets of developing countries will be so marginal as not to influence research in the industrialized countries. “In such cases”, it is observed within parentheses, “patents in underdeveloped countries will usually not be applied for.”—To say that the prospect of patent protection in developing countries will not be an incentive to research in industrialized countries, is definitely not equivalent to saying that it will not pay a patentee to seek protection there.
Par. 291. Whether (or to what extent) these “other factors” are really “intrinsically unrelated” to the patent system is questionable. That “restrictive practices” may be closely related to patents has been shown previously, and such practices may be the principal reason for “the dominant market position of the supplier.” Though “trade secrets” and “exclusive knowhow” are not patentable, their inclusion in patent licensing agreements may give them the same position as if they were patented.
All commentators emphasize the conclusion that “the system is on balance likely to be beneficial provided effective safeguards against abuses exist.” See, for instance, K. Lachmann, “The Role of Industrial Property in the Dissemination of Technical Information in the World Context—A United Nations View”, IDEA, g: 183, Conference No., 1965, who also says, “Here [concerning safeguards] the study suggests a number of possible approaches which have since found their way into the Model Law …: The need for compulsory licensing and working provisions which will assure that foreign inventions protected by patents are actually worked in the country itself, whenever it would be economically sound to do so …”—Such provisions cannot “assure” anything; it may be noted that the Model Law contains no provision for the revocation of patents. See also, “The Role of Industrial Patents in the Transfer of Technology to Developing Countries”, Industrial Research News, 1: 28, No. 1, 1966. The authors of Patentschutz und Entwicklungsländer, Dokumente und Materialen, Max Planck-Institut für ausländisches und internationales Patent-, Urheber-und Wettbewerbsrecht, Vol. XV (Köln: Carl Heymans Verlag, 1966), interpret the Report more extensively when commenting on Part I concerning national patent laws and provisions against abuses, they state that: “Ein vernuftig gestaltetes Patentsystem vermeidet daher per se die Gefahren, auf die Bolivien [co-sponsor] und Brasilien in dem von ihnen vorgelegten Entschliessungsentwurf hinweisen sollen glaubten.”
Report, Summary and Conclusions, p. 7; without discounting the successful influence of various pressure groups in turning the preoccupation of the Report away from the international patent system and towards national action (after the 1963 interim report, BIRPI enlisted the support of its members which through their criticism undoubtedly influenced the final Report. Cf. Hesser, op. cit., p. 157.)—it may be observed that while most information necessary to produce the Report and in general to fulfill the requirements of G. A. Res. 1713 (XVI), was solicited through a questionnaire (Annex B of the Report), and while the letter of transmittal of the questionnaire enumerated all points contained in the G.A. Resolution when referring itself to that document, it specifically only asked for answers to the questionnaire. Since this questionnaire contained all questions raised by the G.A. Resolution save that one concerning the desirability of holding an international conference, it certainly conveyed the impression that this latter question had been dropped.
The Role of Patents in the Transfer of Technology, pars. 59-64, of Doc. E/C.5/65.
How can, it may be asked, abuses due to or at least aggraved by unequal economic and technological power be expected to “disappear” if the solution to the problems facing developing countries are left completely within the bounds of the traditional patent system and its established organization?
Doc. E/Conf. 46/C.3/S.R.44, p. 2. [co-sponsors were Ethiopia, Indonesia, the U.A.R., and (after revision) Pakistan and Rumania.] A note submitted by BIRPI to the conference-Doc. E/Conf. 46/141—put a different emphasis on the Report. Since, according to BIRPI, from the Report it would seem to follow that the problems of developing countries in connection with patents are mainly problems to be solved by “appropriate legislative and administrative measures” on the national level, probably the best practical measure of the conference would be to invite BIRPI to continue its technical assistance to developing countries, (pars. 12-13).
The United Kingdom representative, for instance, said that “he was sure that the sponsors of the draft recommendation did not wish to imply any disagreement with that conclusion [of the Report concerning an international conference] by calling for re-negotiation of existing conventions.” Doc. E/Conf. 46/C.3/SR.49, p. 9; the Director of BIRPI welcoming the measures proposed in the draft recommendation “wondered whether those measures could not be linked up more closely with the efforts of the International Union, which was the only intergovernmental organization specializing in that field.” Doc. E/Conf. 46/C.3/SR.44P. 5.
Doc. E/Conf. 46/141. Vol. I, Part 3, Annex A.IV.26.
The report of the Third Committee says, concerning paragraph three, that the sponsors of the revised draft resolution “felt that a re-negociation agreements on protection of industrial property might be desirable in the future”, whereas some representatives of developed countries with market economies “could only accept the draft recommendations on the understanding that the ‘possibility of concluding appropriate international agreements in this field’ did not imply that the existing patent agreements should be renegociated.” Doc. E/Conf. 46/141, Vol. I, Annex F, Report of III Committee, par. 354.—Since “existing patent agreements” i.e., mainly the Paris Convention, appear for all practical purposes perpetual under present circumstances, the limit to which the developed countries were prepared to go and the difference in interpretation of the UN Report, are well illustrated.
Ibid., p. 4.
Doc. E/AC.6/L.295; this draft was sponsored by the United Kingdom and Northern Ireland. After a revision, France became a co-sponsor.
Doc. E/AC.6/SR.343, p. 4.
Doc. E/AC.6/L.296. The sponsors were: Algeria, Chile, Czechoslovakia, Ecuador, India, Indonesia, Iraq, Mexico, U.A.R., Tanzania, and Yugoslavia.
The delegates of France and Great Britain repeated their statements from the UNCTAD to the effect that the adoption of the UNCTAD Recommendation did not signify an intention to renegotiate existing legislation. Doc. E/AC.6/SR.344, pp. 4-5, 7. Cf. supra, n. 29.
ECOSOC Res. 1013(XXXVII), July 22, 1964.
Though the ECOSOC Resolution transmitted the Report “for appropriate action” to the Nineteenth Session of the General Assembly (1964), it was only brought up the following year. Meanwhile, the Advisory Committee on the Application of Science and Technology to Development considered the Report, at its Fourth Session (1965) and passed a resolution asking for an examination of “existing and possible measures for reducing the cost to developing countries of securing access to foreign patented and unpatented industrial technology.” Industrial Research News, 1: 32, No. 1, 1966.
Hesser, op. cit., p. 157, commenting upon the efforts of BIRPI to influence the evolution of the questions raised by the “Brazilian Resolution” and finding that (after the UNCTAD and ECOSOC meetings) “the contemplated attack on the Paris Union had practically come to nothing”, concluded that “there is reason to suppose that the United Nations will leave it to BIRPI to realize the desiderata made [in the ECOSOC Resolution].” [translated from Swedish].
Doc. A/C.2/L.824, November 26, 1965. Co-sponsors were Austria, the Dominican Republic, Mexico and Peru.
General Assembly, Official Records, Twentieth Session, Second Committee, 999th Meeting, par. 25.
General Assembly Resolution 2091(XX), December 20, 1965.
The United States Delegate repeated what he, and other Delegates had said at earlier occasions to the effect that most patents being in private hands, there was little the Government could do to encourage direct transfer. In connection with operative par. 3, the United States Delegate doubted “whether, apart from information on the possibility of obtaining access to patents, the Secretary General could do much to secure the transfer to developing countries of privately-owned patented technology.” Ibid., par. 261; The French Delegate recalled that when the UNCTAD (Geneva, 1964) Recommendation A.IV.26 had been voted on “France had abstained on the ground that international agreements on that subject would be undesirable” adding that “his delegation’s views on that subject had not changed.” General Assembly, Official Records, Twentieth Session, Second Committee, 1000th Meeting, par. 23.
March, 1967.
Supra, p. 188 and n. 42.
Doc. E/4319, March 27, 1967.
For the text of the questionnaire, see Doc. E/4319, Annex II.
Cf. Préambule and operative par. 3 of G. A. Res. 2091(XX).
The progress report of the Secretary General mentions, as examples of cost-reducing measures various forms of financial support for either the company transferring technology or that recieving it, measures that could be initiated by either “donor” country, “recipient” country, or by an international organization, (par. 21, E/4319). A separate sector of inquiry to be included in the studies initiated by the Secretary-General, should be mentioned. This concerns inventions either already in the public domain or those having been made by public or non-profit organizations, or with the support of such bodies (Ibid.) The conclusion of international agreements for the dissemination of such technology on less onerous terms than those offered under the present international patent system has long been suggested by several authors. Cf. supra, p. 170. One advantage from any such agreement would be to weaken the objection against changes in existing arrangements often raised by industrialized countries to the effect that patented inventions being private property, there is little a government can do to affect their transfer. Cf. supra, p. 188, n. 43. This same objection would again be raised at the New Dehli Conference (UNCTAD II) by representatives of “developed market economy countries” Cf. Doc. TD/81/Add. 1, par. 4.
The term “invisible royalties” was coined by the Secretary-General in his report “The Role of Patents in the Transfer of Technology to Developing Countries” to design the cost-increase of imports due to patent protection. Cf. supra, p. 178ft.
September–December, 1967.
May, 1968.
Res. 1312(XLIV), May 31, 1968.
Doc. TD/II/W.G.1/L.4/Rev. 1; see further below.
July–November; 1968.
Doc. E/4552, July 18, 1968.
Res. 1361(XLV), August 2, 1968.
September-December; 1968.
Doc. TD/B/Add. 2, July 20, 1966, par. 91 (partly); that despite the “important efforts” that have been made to promote patent-legislation in developing countries (including the Model Law on Inventions for Developing Countries by BIRPI) all countries are not satisfied, may be seen from a suggestion made at the meeting of the Committee on Trade and Invisibles (April, 1967), that the Economic and Social Council “should initiate the preparation of ‘basic texts’ on various economic subjects, including industrial property.” I.P., 7: 53, February, 1968.
P. Loby, “Les pays riches ont fait un premier pas en faveur du commerce international des pays en voie de développement”, Le Monde Diplomatique, October, 1967, p. 14, commenting upon the Fifth Session of the Trade and Development Board, says on the provisional agenda: “Cet ordre du jour est sans surprise, si ce n’est l’inclusion in extremis, à la demande des pays en voie de développement, du ‘transfer des techniques, y compris les tours de main et les brevets’ … L’inscription de cette question à l’ordre du jour répond au désir du secrétaire général [UNCTAD] … de combattre la disparité technologique croissante entre le monde industrialisé et le ‘tiers monde’. Elle s’est heurtée aux réserves des pays développées, qui craignent que l’activité de la [UNCTAD] … ne doublonne [sic], dans ce domaine, avec celle d’autres organismes internationaux dépendant de l’O.N.U.”
Doc. A/C.2/237; this text is also included as an annex in Vol. I of the Official Records of the Second United Nations Conference on Trade and Development.
Ibid., Part II, F. 1, (a).
Supra, pp. 153-70.
Part II, F. 1 (b) of Doc. A/C. 2/237 (supra, n. 61).
“Trends and Problems in World Trade and Development” Study prepared by C. H. G. Oldham, C. Freeman and E. Turkcan, Science Policy research Unit of the University of Sussex, United Kingdom, Doc. TD/28/Supp. 1, November 10, 1967, 26 p.
Ibid., par. 65.
For some observations on Japanese experience, infra, pp. 238-39.
Doc. TD/misc. 41, February 6, 1968, 12 p.
Ibid., p. 5. Though at first sight this statement appears to say merely that an insufficiency of administrative resources within local patent offices may hinder developing countries from avoiding abuses of the patent system, its last sentence, mentioning unjustified patent grants that impose restrictions on imports and production, could be interpreted to mean that only patents leading to local production should, in principle, be seen as justified from the point of view of developing countries.
For the report of Working Group I on this question, see Chapter II of TD/81/Add. 1, March 17, 1968.
Doc. TD/II/W.G.I/L.4/Rev. 1, submitted by Brazil, Chile, India, and Pakistan (also in United Nations Conference on Trade and Development, Second Session, Proceedings, Vol. I—Report and Annexes, p. 388).
The draft resolution contained a large number of suggestions for the work of the proposed committee, among which may be noted the recommendation that the committee “study the effects of existing international legislation for the protection of industrial property on the economic development of developing countries”; [I(v)] and that the Committee review the implementation of the recommendations to developed countries to encourage patentees “to refrain from imposing in the transfer agreements any undue restrictions on the exports by the developing countries of the resultant products”; [II.A(iii)] and “to refrain from imposing such conditions on the supply of plant and machinery and on the transfer of technical processes as would retard the development of indigenous manufacture and technology”; [II.A(iv)] It may also be observed that the draft recommendation in its first preambular paragraph opened by “reaffirming the recommendations contained in annex A.IV.26 to the Final Act adopted at its first session”, (Cf. supra, pp. 184-85).
See infra, p. 196.
Doc. TD/II/C.2/L.7, March 9, 1968.
Preambular, par. 3.
Supra, p. 193.
September 1968.
Supra, p. 194.
Supra 195 and 190 respectively.
Supra, p. 191.
Res. 48(VII), September 21, 1968.
Par. 2(a)(x) of the regulation of the functions of UNIDO, Doc: G.A. Res. 2152 (XXI) November 17, 1966.
Cf. doc.: A/C.2/L.868; thus whatever may come out of this new United Nations organ, it will be done in cooperation with BIRPI and other interested international organizations. “This amendment … should put it beyond doubt that BIRPI will be asked to cooperate on any implementation of this paragraph.”—“Cooperation between the United Nations and BIRPI in 1966”, I.P., 6: 46-48, February, 1967, p. 47.
ID/n, United Nations; New York, 1969, par. 122. 84 ID/B/41, May, 1968.
Hesser, op. cit., p. 155. In the words of the Director of BIRPI: “Whatever the merits of this resolution and wherever it may lead to, it had at least the effect of causing action in the Paris Union. This Bureau wholly realizes that there are other intergovernmental organizations wrhich may deal with matters of international cooperation in the field of industrial property, and that countries outside our Union may also have thoughts about the way in which industrial property should or should not be protected.” Doc. I.A.P.I.P. Annual Report 1963: II, p. 16.
A third preoccupation within the Paris Union and its Secretariat during the last decade, and one which may have important repercussions on the position of developing countries within the international patent cooperation, has been the question of reorganization. These plans and their recently decided implementation will be discussed in Chapter VI, Cf. infra, pp. 258-65.
In the introduction of the Report, it is merely mentioned that BIRPI was asked to prepare the survey of national patent legislation which appears in Annex D; according to a BIRPI representative, “it had assisted the United Nations Secretariat in preparing the report. … In particular the synoptic table [Annex D] … was based on the analysis of national patent legislation carried out by the Bureau …” Doc. E/AC.6/SR.341, p. 5; a reference to BIRPI’s part in the making of the Report is contained in a speech by the chairman of the I.C.C. Commission on the International Protection of Industrial Property Rights, where, after drawing particular attention to the value of the Report and the satisfactory nature of its conclusions, tribute is paid to BIRPI and its Director as well as to a United Nations expert, “for their part in the drafting of this remarkable report.” Doc. ICC. 450/254, April 30, 1964, p. 2; the fact that the written material underlying the Report had been submitted, almost in full, already for the interim report (cf. supra, n. 12) suggests the influence of additional outside opinions on the drafting of the Final Report.
See also Hesser, op. cit., p. 157.
Doc. E/Conf. 46/141, April 10, 1964.
Doc. E/Conf.46/C.3/SR.44, pp. 3-5.
Doc. E/A.C.6/SR.341, pp. 5-6.
Doc. I.C.C. 450/254, April 30, 1964, p. 2; for the same observation, see Doc. I.C.C. 450/260, September 24, 1964, p. 4.
A recent BIRPI project designed to simplify the patenting of any given invention in a number of countries, may bring benefits also to developing countries, which are Members of the Paris Union. This is the BIRPI Plan for a Patent Cooperation Treaty (PCT). A first draft was published in September, 1967, and a second one in July, 1968. The latest development until January, 1969, was a meeting of a Committee of Experts in December, 1968. A Final Report of that meeting with a detailed account on each paragraph of the planned treaty, was published in the January 6, 1969 issue of the Official Gazette of the United States Patent Office.
Reported in I.P., 2: 190-92, September, 1963.
Reported in I.P., 3: 164-68, July, 1964.
Reported in I.P., 5: 54-57, March, 1966.
Reported in I.P., 2: 234-39, November, 1963.
Six of the participating countries were developing countries; three were at the time Members of the Union (Brazil, Iran and Tanganyika) and three were outside it (Algeria, Colombia and Venezuela) the first of which has since become a Union Member.
Introducing the question of Union Membership, the Director of BIRPI outlined some of its disadvantages and advantages. Among the former was mentioned the seemingly disproportionate number of patents granted to foreigners. “However”, assured the BIRPI Director, “this phenomenon has not prevented industrial development of countries such as Switzerland and the Netherlands, which were themselves quite recently less industrially developed countries.” I.P., 2: 237, November, 1963. It is also reported (p. 238) that one delegate, pointing out the advantages of membership, said that “it must also be remembered that fiscal revenues will be increased … [through fees for filing and maintaining patents].” !
for the text of the resolution see Model Law for Developing Countries on Inventions (Geneva: BIRPI, 1965), p. n, n. 1.
The sixty-nine countries were chosen from those “which at the United Nations Conference on Trade and Development [UNCTAD, Geneva, 1964] considered themselves developing.” Ibid., p. 11.; among the latter group of countries twelve African States—the members of O.A.M.CE.—were not invited, having recently adopted a uniform patent law. Ibid., p. 11, n. 3.
Some developed countries and international organizations sent observers. Among the latter were representatives for the United Nations, the I.C.C., and the I.A.P.I.P.; Doc. I.C.C. 450/262, December 15, 1964, p. 1.
Model Law …, p. 12.
Though existing patent laws generally do not contain special provisions concerning the protection of knowhow, the Committee agreed that the insertion of such provisions would be “useful and desirable” in view of the special interest that the supply of knowhow has for developing countries. Ibid., p. 75.
italics added. Model Patent Law—Memorandum on the Geneva Meeting of the Committee of Experts, submitted by S. P. Ladas and P. J. Pointet, Doc. I.C.C. 450/262, December 15, 1964, p. 3.
This assumption was based on the views expressed by the 1963 Committee of Experts and on the contents of the Report (by the U.N. Secretary General), Model Patent Law …, p. 12.
Certain sections go beyond purely legal questions. This is the case, for instance, with section thirty-two on License Contracts Involving payments Abroad, which admits the screening of such contracts by a Government agency. To have such a practice “approved” by BIRPI may be of psychological value. Its Director, saying that its inclusion seemed to be the inevitable price … if one wishes to have an effective patent protection for foreigners in a developing country adds, however, the observation that “it is, in essence, not very different from the foreign exchange control measures which are or have been known in almost all the countries of the world.” G. H. C. Bodenhausen, “A Model Patent Law for Developing Nations”, Creative Ferment in World Patent Systems; Conference of the National Association of Manufacturers, June, 1965 (New York: N.A.M., 1965) p. 27.
Italics added, Ibid., p. 29.
Model Law …, p. 19.
Bodenhausen, op. cit., pp. 25-26.
Model Law …, pp. 21-22.
Does not the fact that only the original patentee may obtain a patent of introduction completely nullify the influence, in case world-wide novelty is required, which the existence of a possibility for a third person to take a patent would have in obliging the foreign patentee to apply for a patent grant within the priority period? Does not the suggested text (in connection, at least, with a requirement for more than local novelty) constitute, in fact, a mere prolongation of the ordinary priority period ?
Model Law … p. 48.
Ibid., p. 84.
Though it will probably be argued that a patent of introduction is not calculated to recuperate research costs, neither ought developing countries to pay for such research in general, nor is the possibility of such recuperation a significant incentive to the foreign inventor-patentee.
Ibid., p. 85.
Ibid., p. 17.
Ibid. In the introductory comment on the two sections concerning compulsory licenses (sections 34-35) it is also stressed (p. 58) that “adequate provisions for compulsory licenses are of exceptional importance for developing countries because such provisions constitute the best means to encourage the exploitation of patented inventions in the country itself and to avoid any economic or social drawbacks of the rights granted to the owner of the patent.”
Ibid., p. 58.
Cf. supra, p. 138.
Ibid. “Furthermore”, it is said (p. 58), “such provisions would … be too general … Finally a system of automatic lapsing would be much too rigid, because the sometimes very valid reasons for non-working could not even enter into consideration.” Whatever “valid” reasons there may be for non-working, they would seem to be so only from the point of view of the patentee.
The close collaboration and identity of views will become apparent below. In an I.C.C. memorandum on the Model Law Committee (cf. supra, n. 105), it is said that while Dr. Bodenhausen supported the BIRPI draft, he also offered amendments suggested by the I.C.C. and I.A.P.I.P. “Because of this initiative of Dr. Bodenhausen”, the authors of the memorandum continue, “the observers for these two organizations preferred not to intervene in the particular discussions since obviously it was better that desirable amendments be offered by BIRPI itself. The observers of the AIPPI and ICC intervened only to aid Dr. Bodenhausen whenever it was felt that he required assistance in support of the proper position.” Doc. I.C.C. 450/262, December 15, 1964, p. 4.
At the beginning of 1968 there were forty-two countries with national committees and thirty-eight more countries with individual members. I.C.C. “Aims, Action, Organization and Who’s Who 1968/1969” Paris, 1968.
“La chambre … est organisée pour intervenir directement auprès des instances intergouvernementales…. En mëme temps, la qualité des membres et la position qu’ils occupent dans l’économie de leur pays lui assurent une voie de pénétration efficace auprès des autorités nationales. Sous tous ces aspects, peu de groupes de pression internationaux peuvent lui ëtre comparés.” J. Meynaud, Les groupes de pression internationaux. (Lausanne: [chez l’auteur], 1961) p. 371.
Ibid., p. 67.
Not only can it send observers to the Council and its Committees; it may also submit written declarations, which are distributed to member governments of the United Nations as official documents, and orally expose its view in Committees. A special prerogative of organizations of category “A” is that they may, on special recommendation, present their views in the Council and suggest questions for its agenda. Ibid., pp. 253-54.
Ibid., p. 256.
Though a report on the Lisbon Conference (previously quoted; cf. supra, p. 96, n. 101) shows the awareness of sharper differences between industrialized and developing countries, a document proposing a work programme for 1961/63 in nine major points fails to mention the problem of patents and the transfer of technology to developing countries. Doc. I.C.C. 450/209, September 26, 1961.
The original draft resolution was submitted on November 8, 1961; its final version was passed by the Second Committee on December 9, and by the General Assembly on January 8, 1962.
Doc. I.C.C. 450/212; Summary Records from November 23-24, 1961.
Ibid., p. 2.
In view of the urgency of the matter, the I.C.C. Council had given prior approval of a statement to be drawn up by the Commission. An I.C.C. official confirmed that “in obedience to the I.C.C. mission to facilitating international trade without any restrictions, the I.C.C. Council and Executive Committee had given the Commission authority to act with all speed.” Ibid. p. 3.—That one of the principal remedies sought by Brazil was the suppression of trade restrictions caused by non-worked patents never seems to have been considered !
Ibid. Following this statement, the BIRPI representative, saying (Ibid.) that it would be a very good thing for the I.C.C. to take a position as a matter of urgency “regretted that a statement of this kind [i.e., the Brazilian draft resolution] had been drawn up at the very moment when the office of the Union was trying to persuade the new countries to join in the Paris Union.”
Ibid.
Ibid.
Doc. I.C.C. 450/210 Rev., November 24, 1961, pp. 1-2.
Doc. I.C.C. 450/213, February 22, 1962, p. 1.
Doc. I.C.C. 450/243, October 28, 1963, p. 1. If “general principles” merely refers to the principles of national treatment and priority then there are no differences between the industrialized and developing countries involved (five of each were examined). But if “general principles” should refer to the latest text of the Convention, there are clear differences. While the five industrialized countries had all ratified that text, only Mexico among the developing countries had done so, the latter having anyway the peculiarity of providing for the reduction of the term of non-worked patents. Of the other four countries, Israel and Morocco follow the Lisbon text though they have only ratified the London text of 1934, while Brazil and Ceylon follow the rules of the Hague text (though Ceylon has ratified that of London).
Ibid., p. 3.
Ibid. It has been emphasized elsewhere that the effect of the patent system cannot be measured merely in terms of numbers of patented inventions, but that such effects include the use of that system to protect unpatented knowhow. This is recognized in a draft memorandum submitted to the Commission on “Modern Technology and Industrial Property”, in the following words: “Owners of knowhow are more likely to enter into agreements communicating such knowhow if they can tie this up to patents to which the knowhow refers. Therefore developing countries should encourage the grant of patents if for no other reason that it encourages the communication of knowhow to patent licensees.” I.C.C. Doc. 450/264, April 26, 1965, p. 8.
Though at several occasions policy statements have been made seemingly showing an openminded approach to questions of changes and adaptations to new conditions, nothing has so far emerged in practice. In 1963, a review of a 1951 resolution on patent-licensing was called for; one of the reasons given for such a review was the “urgent claims of underdeveloped countries in their struggle for speedy industrialization and importation of technology and the present and prospective revisions of existing patent systems. It seems to me”, the author of the memorandum concludes, “that this review calls for a pragmatic approach … which seeks to resolve present and actual problems rather than build on ideological systems. If this means that we have to sacrifice to some extent the sacred cow of laissez faire in favor of certain controls and restrictions imposed by the facts of life, we should have the courage to say so.” I.C.C. Doc. 450/245, November 7, 1963, p. 3. See also I.C.C. Doc. 450/264, April 26, 1965, p. 12.
A.I.P.I.P. Annual Report 1968; nine developing countries (eight individual countries and O.A.M.C.E. as a group) have national associations and twenty have individual members.
Mentioning the activities of its secretary general, S. P. Ladas (being thus also the chairman of the I.C.C. Commission) the Association’s 1963 Annual Report says that “it is … quite especially his achievement that the so-called ‘Brazilian Resolution’ … was accepted in its final, moderate version.” Doc. I.A.P.I.P. Annual Report 1963: I, p. 74.
Doc. I.A.P.I.P. Annual Report 1961: II, p. 105.
Ibid.
Doc. I.A.P.I.P. Annual Report 1963: II pp. 88-90.
Doc. I.A.P.I.P. Annual Report 1964: II p. 133.
Doc. I.A.P.I.P. Annual Report 1966: I, p. 78.
The determination of its future work program in 1966, shows this. Deciding to chose, by ballot, the four questions (out of fifteen suggested) to be included in that program, it turned out that the subject of “transfer of technology” only ranked no. 11, the last-placed subject being “protection of knowhow.” Doc. A.I.P.I.P. Annual Report 1966: II, p. 51; however, at the annual Conference of Presidents, April, 1968, the Argentine Delegate proposed that the question of the connection between industrial property rights and the progress of developing countries, be included in the agenda for the June, 1969 Congress of Venice.
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© 1971 Martinus Nijhoff, The Hague, Netherlands
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Anderfelt, U. (1971). The Positions of various International Organizations. In: International Patent-Legislation and Developing Countries. Springer, Dordrecht. https://doi.org/10.1007/978-94-011-9218-7_7
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