Human nature

‘The unleashed power of the atom has changed everything save our modes of thinking and thus we drift towards unparalleled catastrophe.’ – Albert Einstein

We tend to think of ourselves as being pretty fair when it comes to dealing with others. However, recently some of the poorer nations have raised their voices about our arrogance and selfishness in matters of national importance to them.

In 2007, Indonesia was being overrun by a deadly strain of avian influenza when it decided ‘out of protest against the established WHO system’ to stop sharing samples of the virus with the rest of the world. Up until that time most countries had been handing pathogen samples to the WHO Global Influenza Surveillance Network. Biological sharing has the obvious advantage that others could help to produce vaccines as required – mainly the rich countries who had the best laboratories.

In 2007, Indonesia was suffering from H5N1 epidemic and foreign organisations were dependant on the samples for study. However, the Indonesian government found that although research was taking place, Indonesian scientists were either being ignored in the papers being published or merely tacked on as co-authors. This virus had a mortality rate of over 80%.

The Indonesian government’s main complaint was that whilst they were providing the samples, etc to the industrialised nations, the response of these nations was to produce a vaccine, patent it and then sell it back to the developing countries at a profit, which many countries could not afford. That vaccine was developed by the CSL but patented in the USA. They called this process ‘viral sovereignty’. To a great extent, this attitude has now been alleviated but the concept has been going on for generations – rubber trees being sent from Brazil to the East, thereby depriving Brazil of its natural product; silk from China to Europe, etc.

In 2012, the Saudi government sent samples of MERS to the Netherlands to confirm their scientist’s discovery of the new disease. Their scientist got full credit, but the Netherlands filed a patent, claiming ownership of the genetic sequence. Because of the political issues raised there, the Congo refused to send samples of the Ebola virus to the WHO and now, although the disease is spreading throughout the DRC, virtually no-one is working on a vaccine for it.

The original concept of patents was introduced to allow an inventor time to develop his invention in order to either market it or sell the idea. A patent is a type of intellectual property that gives its owner the legal right to exclude others from making, using, or selling an invention for a limited period of years in exchange for publishing an enabling disclosure of the invention.

In most countries, patent rights fall under private law and the patent holder must sue someone infringing the patent in order to enforce their rights. In some industries patents are an essential form of competitive advantage; in others they are irrelevant.

The procedure for granting patents, requirements placed on the patentee, and the extent of the exclusive rights vary widely between countries according to national laws and international agreements. Typically, however, a patent application must include one or more claims that define the scope of protection that is being sought. A patent may include many claims, each of which defines a specific property right. These claims must meet various patentability requirements, which in the US include novelty, usefulness, and non-obviousness.

Under the World Trade Organization’s (WTO) TRIPS Agreement (Trade-Related Aspects of Intellectual Property Rights), patents should be available in WTO member states for any invention, in all fields of technology, provided they are new, involve an inventive step, and are capable of industrial application. Nevertheless, there are variations on what is patentable subject matter from country to country, also among WTO member states. TRIPS also provides that the term of protection available should be a minimum of twenty years.

Patents are sometimes free within the country of the applicant. An Australian writer, for instance is automatically protected within Australia. In order to obtain a world-wide patent an inventor must apply. However a Universal Patent Application ( PCT) does not itself result in the grant of a patent, since there is no such thing as an “international patent”, and the grant of patent is a prerogative of each national or regional authority.

In other words, a PCT application, which establishes a filing date in all contracting states, must be followed up with the step of entering into national or regional phases to proceed towards grant of one or more patents. The PCT procedure essentially leads to a standard national or regional patent application, which may be granted or rejected according to applicable law, in each jurisdiction in which a patent is desired.

This procedure is very expensive and often beyond the means of individual designers and has thus been been taken over by large organisations falsely claiming infringement on their ideas or by patenting ideas which they have not, in fact developed beyond mere thought bubbles as the law in Japan and some other countries allows.

The point I am trying to make here is that patent law is now far too complex for the average person to understand, let alone use effectively although probably ideal for organisations with their own legal teams.

Obviously the original concept was ideal – it gave the inventor breathing space. It is unfortunate that the law has not kept up with the dealings of international organisations which can use the best lawyers in order to force sometimes unwilling innovators to sell their idea for a nominal amount and sometimes, to add insult to injury, to work for that organisation operating it.

It appears that human nature has not changed much since the Romans and Eastern Mediterranean peoples kept slaves. It seems that the countries which have all they need have been overcome and subjected by the Western nations who have taken warfare to its limits and use that to take what they want.

If we are not careful, maybe the Chinese or Russians will be the next oppressors. We no longer use warfare – we use the law. But to a great extent, that law was designed and interpreted by well educated, influential Westerners and I feel the laws surrounding patents are being abused by large companies at the expense of others.

“Experience is something you don’t get until just after you need it.” – US comedian Steven Wright

“Only a fool learns from his own mistakes. The wise man learns from the mistakes of others.” – Otto von Bismark