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Date :  2003-10-08
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Patentability

Patentability

Author :  Philippe Aigrain


A patent, in the modern sense, is a monopoly granted (for 20 years) on the exploitation of an object or technical process. If the individual inventors are recognised, in practice the patent rights go to the companies or bodies which employ them. Patentability denotes whether or not a certain type of product or process is patentable. The demarcation of what is or is not patentable determines conditions for the practical appropriation of the knowledge involved, the possibility of development in numerous countries, and has an influence on the capacity of states and peoples to check the power of multinational firms.

After their first appearance in 15th century Venice, patents (and letter patents) were reinvented between 1600 and the American and French Revolutions (1). They were conceived as a cure for the flaws in two other means of defence against imitation in the early stages of (at that time mechanical) inventions: secrecy and monopoly. Secrecy was obviously harmful to the innovation’s diffusion (even if delayed); monopolies, granted by a sovereign or a city, often without a proper requirement of innovation, were subject to innumerable abuses, and restricted at once competition and innovation. Patents tend to preserve some of the characteristics of the instruments they aim to replace: they restrict secrecy, but retain elements of it. They institute limited, conditional monopolies, but they are monopolies nonetheless. From the outset monopolies and patents have been associated with territorial rivalry: the awarding of a monopoly or the issuing of a patent often has as its aim to attract inventive craftsmen to a city or country, or to allow those there already to catch up a technological delay by protecting them from competition.

So the first patent codes (appeared in the English North American colonies in the 17th century, and especially the American law of 1790) are quite far from the somewhat different vision that would later promote the myth of a natural right of “inventors” over technical devices. George Washington thus declared before the United States’ Congress that their ultimate aim was “efficiently to induce the introduction of useful and new inventions of foreign origin, as well as promoting indigenous skills and knowledge for the production of such inventions.” At the time, only American citizens were entitled to register a patent. This conception of patents combines elements of the modern patent with those of monopolistic obligatory licences, granted, for instance, by a developing country to a local company to produce generic drugs.

It is only in the 19th century, that golden age of mechanical inventions and chemical manufacturing processes, that the patent system progressively took its modern form. The number of patents increased exponentially in most of the industrialised countries, and steps were taken towards partial international recognition with the Paris Convention (for the Protection of Industrial Property) of 1883. This increase, however, excluded neither variations (France issued patents without consideration, called “SGDG” - Without Government Guarantee), nor objections. The latter came from two currents, traditionally opposed to the extension of the domain of patentability: less developed countries and supporters of radical liberalism. The former were reluctant to establish a patent system which would force them to recognise foreign patents, while the latter considered them an obstacle to trade. So the second half of the 19th century saw countries such as the Netherlands and Switzerland abolish any patent system in the name of free trade. A certain consensus (2) arose at the turn of the 20th century in favour of patents for manufactured physical objects and manufacturing processes, including chemical processes, on the condition however that they be accompanied by mechanisms that would monitor their anti-competitive effects.

Patentability arises as a specific problem in the debate on the patentability of molecules. The German chemical industry has tried to impose it on the world since the 1840s, with arguments similar to those used later to justify the patentability of genetic sequences and software: advocates of the patentability of molecules affirm that if a synthetic molecule is not protected, its production process is not sufficiently protected to justify the investment required for research and production. This argument has been rejected as a mere ploy to cement a dominant position. France accepted the patentability of molecules only years later, through a series of decisions made between January 1944 and 1968 (3). For other countries such as India, this acceptance only came with their accession to the WTO (as of 2006). The devastating effects of the patentability of molecules were not fully apparent until only a few years ago, with the transformation of the pharmaceutical industry into an intellectual property industry.

Another similar extension of patentability concerns plant species. It was introduced in the United States in 1930 (4) under the pressure of “selectors”, boasting the “artificial” character of the varieties selected as a result of their research. The patentability of plant species never ceased to spread after the Second World War, until the development of bio-piracy (taking out patents on natural species, or ones that have been selected by people from developing countries to the advantage of pharmaceutical and cosmetic industries in developed countries) and the struggle of Indian farmers against the patentability of basmati rice caused a reaction, albeit a very partial one.

But the heart of the problem about patentability appears with the development of information technologies, cybernetics and molecular biology. It becomes easier to store information electronically, to manipulate it automatically using softwares which are themselves born of information, to isolate informational layers in machines, or biological mechanisms (genetic sequences, molecules in the immune system). From then on, the distinction between inalienable natural ideas or laws and the invention of physical artefacts will be the subject of a merciless offensive.

Transnational companies will always try to protect and extend the subjugation of a market, whether for GMO seeds or software. Allied to the specialised players of a patent system which, in fact if not by right, escapes political control, they want to monopolize everything: living molecules, creative processes, any immaterial entity that can be shown in the form of information.

Twice already has a democratic arena rejected this insane extension. On March 1st 1995, the European Parliament rejected a first draft of the Directive on the patentability of biotechnological inventions, which would have authorised patents on genetic sequences. But the coalition that drafted it was ambiguous and weak. Certain opponents of the Directive were eventually persuaded by EuropaBio’s frenzied lobbying, and, in 1998, a new version of the Directive was adopted. Eight European countries out of 15 still refused to transpose certain articles authorising patents on genetic sequences into law, and were sued before the Court of Justice of the European Communities in January 2003 by the European Commission. It is worth noting that a smaller number of countries could have blocked the adoption of the Directive at the European Council.

On September 24th 2003, a more substantial majority adopted a series of amendments to the proposed Directive on the patentability “of computer-implemented inventions” at its first reading. Whereas the text put forward by the European Commission suggested to “regulate”, purely and simply, the recent practice of the European Patent Office to issue patents on software, data structures and data processing methods, the European Parliament’s amendments completely rejected this practice, and drew a clear line between physical inventions and immaterial creations. It remains to be seen whether Member States share the Parliament’s opinion.


(1) Much historical information can be found in Serge Lapointe’s “L’histoire des brevets”, accessible at www.robic.ca. Nonetheless, the reader should be aware of the author’s inevitable bias, given the fact that he is a member of a patent office.
(2) Beyond repeated acts of faith on the part of current neo-classical and neo-liberal economists, no evidence has been produced to prove the global economic benefits, or an undifferentiated need for patents as an incentive to investment for innovation. Neither the controversy opposing Joseph Schumpeter’s theories on the connections between monopolies and technological change to Kenneth Arrow’s, nor the latest studies, such as the one conducted by James Bessen, enable us to justify the extension of patents and their resulting reinforcement of monopolistic tendencies.
(3) See Hervé Chneiweiss, Chroniques Bioéthiques 5, Sur les rivages de la misère, Episode 1: le marché des médicaments essentiels, Médecine/Sciences issues 8-9, August/September 2003.
(4) See Jean-Paul Gaudillère, “Petite histoire des brevets sur le vivant: Propriété intelletuelle ou santé publique?”, La Gazette du labo, issue 63, December 2001.

© Philippe Aigrain, 2003. The use of this text is subject to the terms of the Creative Commons Attribution license, creativecommons.org/licenses/by/1.0

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