Thoughts on E. Kranakis «Patents and Power European Patent-System Integration in the Context of Globalization»
0. Introduction
Greetings to all!
In this blog, we are going to visit the surroundings of a subject that made the headlines the previous days: the call by the US government to waive patent rights, to open COVID-19 vaccine production, and the subsequent rejection of this claim by the EU.
In a statement on Thursday 6th May, the German government said the US-backed proposal would have “significant implications for vaccine production as a whole”.
“The limiting factors in the production of vaccines are the production capacities and the high quality standards and not patents,” it said, adding that pharmaceutical companies were already working with partners to ramp up manufacturing.
Germany is the EU’s biggest economic power and home to a major pharmaceutical sector, including BioNTech which developed one of the most widely-used coronavirus vaccines.
The remarks by the German government came after European Commission President Ursula von der Leyen said the bloc was “ready to discuss” the proposal on waiving patents.
Ms von der Leyen has previously spoken about her opposition to lifting intellectual property rights, telling the New York Times just weeks ago that she was “not at all a friend of releasing patents”.
In order to understand the EU’s “love of COVID-19 patents,” we need to revisit the history and the technosocial systems that led to the so-called Europeanization of the patent system, mainly related to biotech implications.
To do that we are going to reflect on the paper «Patents and Power European Patent-System Integration in the Context of Globalization» by E. Kranakis.
You can find it here: https://www.jstor.org/stable/40061325?seq=1
I. Reflection
With the paper, E. Kranakis aims to describe the interaction between different actors and technosocial systems in establishing patent policy, while case studying the European instance in connection to globalization. Patents are realized as tools of power and control over technology and people, while also posing the challenge of establishing a proper balance between social and patent-holders interests. Examing the turning points in the European Patent-System (the 1883 Paris Convention and the implementation in 1978 of the Patent Cooperation Treaty and the European Patent Convention), the author extracts valuable insights about the dynamics that shape new patent policy frameworks and the efforts required to integrate them.
But what is a patent and why do we need a patent policy? The author examines how patents are viewed historically, socially, and economically.
A patent offers a temporary monopoly to its holder, with the assumption that it will reimburse them for the work and cost required to create and apply an invention. Patent policies varied significantly according to the purpose they wanted to facilitate- in such ways that not having a patent policy (ex. of Netherlands) could be regarded as a successful patent policy ( ex. for the appropriation of inventions).
Addressing such issues, the Paris Convention of 1883 attempted to offer an outline of an integrated patent system. A vivid debate of pro-parent and against-patent movements had been going on for decades. The driving forces of the convention were the development of technosocial systems relying heavily on patents and also the growth of international trade. Some years ago in Vienna’s international meeting, patents were defined as a natural right, and the moral obligation to ensure their protection called for international legislation.
Thus, the task to integrate patent systems was also translated as a task to bring together different objectives and to articulate them into legal terms. The convention offered an intergovernmental treaty, that protected and addressed the three main problems of national patent systems, namely:
- discrimination against foreigners, by treating equally locals and foreigners in matters related to industrial-property laws.
- the problem of prior public disclosure, by giving priority for a specific timeframe to a filled patent application over other claims.
- the problem of revocation for importation, by offering the ability to maintain the parent in one country even if it’s being produced in another country.
The PCT (Patent Cooperation Treaty: an international patent law treaty, that was concluded in 1970 and provided a unified procedure for filing patent applications to protect inventions in each of its contracting states), was a structural transformative event, related to the growth of patent applications and the extreme change in the type of patent holders. The author describes the reasons for the significant increase in the percentage of foreign applications to European patent offices (mainly by U.S. companies), in the 60s and 70s and how this phenomenon led to backlogs and delays in processing the applications, creating a patent system chaos.
Additionally, Kranakis examines how patents were awarded mainly to big conglomerates that were based in a handful of countries. The patent crisis resulted in bigger expenses, delays, problems from differentiations of laws, and quality of research in each country. The PCT was created as a new union, making it easier and cheaper to apply, overseeing the quality and standards of patent, allowing preliminary international examination of an application, and the exchange of knowledge and information between offices.
In comparison to PCT, the European patent systems seemed outdated and chaotic. Improvements in these systems were considered to require unified legislation for intellectual property across Europe, which would also guarantee the free-common market goal of the European Economic Community (EEC). While there were drafts for decades, the PCT became a wake-up call for Europe resulting in the EPC Treaty (1978).
Kranakis adds to her analysis regarding the creation of EPC, cultural elements such as the fears of the “technological gap” from France, and a need to present a viable counter-example. The France government pushed hard to have the PCT linked to independents, international search authority, and partly succeeded by creating the European Patent Office (EPO). Τhe EPC, as Kranakis states:
established a hybrid system that carefully balanced defined elements of Europeanization with the preservation of key aspects of national patent legislation.
Another important feature of the EPC was introducing a highly successful opposition approach (anyone could oppose a patent within nine months), which reduced legal fees and court cases over patents significantly. Additionally, EPC addressed the issue of legal representation, limiting to member state residents (patent lawyers) who passed a European-level qualification exam — thus limiting U.S influence.
We can see at this point how important the element of maintaining national sovereignty, an interconnected but yet protected system was for the EPC policymakers. In comparison to PCT, this element is attributed rather culturally as “Europeanization” that has been influenced by various actors and behaviors, such as patent applicant behavior. Patent applicants began to choose to apply directly to EPO and not national offices, which lost importance over time.
Secondly, while patent law was nominally under national jurisdiction and this created a lot of contradictions for transnational disputes, law workers and companies began to create a de facto European-wide litigation system. To address the situation, this litigation system (and especially the law workers) invented a new interpretation of the EPC, which allowed to further integrate patent policy and advance the rule of EPC through dialogue and cooperation.
Additionally, the author opens a new chapter by discussing the interaction of technological change with policy-making (90’s), and namely referencing Biotechnology and Plant Patents. Kranakis goes on and studies the US Supreme Court case, Diamond v. Chakrabarty, which discussed the limits of patenting on humans and reached the verdict that “anything under the sun that is made by man” can be patented.
On the other hand, EPC was more cautious in developing the corresponding framework, by excluding plant varieties from patenting (due to other laws and treaties and thus matters of jurisdiction), by initially choosing to not include such a controversial topic, and by not being able to completely access the validation criteria for a plant patent.
The author shows two cases in the 90s, where the EPO overturned its initial verdict in the opposition stage and how important the European opposition mechanism was by including NGOs and civil society in the process. ECP became also a protest site with the Plant Genetic Systems v. Greenpeace case — the first instance of an NGO opposing the granting of a plant patent. While Greenpeace lost the case, it argued and won the argument for singularity being essential to establish patent, and so lessening its opponent’s aspirations.
This argument was used to a similar case denying patent to Novartis but was ultimately overruled for a seemingly unrelated issue: EU’s new and controversial “directive on the legal protection of biotechnological inventions”.
The power dynamics and pressure of European biotech companies forced the authorities to create a directive that maintained the same rhetoric for the plant patents but created loopholes to get around it. After all, it was evident that the biotechnology directive was a fundamental revision of the EPC’s patentability rules and against the logic of national sovereignty as EPO incorporating the directive regardless of its acceptance from the national parliaments.
The directive allowed companies like Monsanto to patent herbicide-resistant (“Roundup Ready”) soybeans, and through it to blackmail the Argentinian farmers for loyalty infringement in their European exports because they shared the same gene with their biotech plant. The patent issued by EPC became a powerful and harmful tool.
Concluding, Kranakis states that the process of patent-system integration in terms of globalization was not neutral. ECP’s role on a global scale (as evident by the Monsanto case) created a hegemonic narrative:
they should be kept not because of the old trade-off argument (private investments that need initiatives to be initiated) but as a mechanism that restricting appropriate freedom of choice for nations and social groups facing differing needs and circumstances.
II. Comments
The “Europeanization” of the patent system created a new morality, a different outlook to what patents are, supported by a “positivistic” narrative that led to harmful implications and shifted the power balance in favor of biotech companies.
It is important to understand patent systems as technological systems also, where new resolutions are innovation and social, cultural, and political values are embodied in terms of techno-social systems.
These systems are not limited to the creation of the institution. ECP for us can be viewed as a factory/laboratory, where we need to follow the scientists or law workers.
In such systems, the power dynamics are vital — though we might have processes and various actors the power asymmetry regulated the outcome at large.
Patent systems regarding biotechnology should involve (in practice) societal and ethical issues in debates such as sustainability, applications, risk management, and economic justice. If their debates are not involved in the systems we can have one of two outcomes:
- patents that lead to social injustice and economic destruction,
- failure of otherwise promising solutions.
For the EU, the waiver of patents for COVID19 would mean a waiver of the narrative and the European way for patents worldwide. Its role in global terms would be challenged. This is why the arguments against the waiver of patents for the COVID-19 vaccine (and possibly, in the future, other COVID-19 drugs) related are not based on the incentives pro-patent argument but on the preservation of quality, which according to EU is achieved through the regulation offered by the EPC moded.
Put in these terms, the decision about what will happen on this specific matter receives a new and very interesting meaning, showing that the European patent system would be vitally challenged and its until recently hegemonic (but harmful) narrative upheld.
