Patently-O Bits and Bytes by Juvan Bonni

10 thoughts on “Patently-O Bits and Bytes by Juvan Bonni”

1. 4

   This is not an especially insightful comment, but in view of the plethora of TRIPS waiver stories covered above, I think it is worth emphasizing how little we know of the putative waiver. The various nations involved are negotiating the waiver text right now, and like most negotiations, none of it is public. The waiver “text” that we have right now is really just India’s opening bid, and should not be understood as anything like the final text that will emerge from negotiations. Therefore, it is impossible to say what are the contents of text that will eventually come to a vote in the WTO. Those who says that the waiver will do this or that are really talking out of their hats, as the various commenters know no more than you do yourself about what the ultimate WTO text will say.

   I think that the other important point to emphasize is that whatever the ultimate waiver text will say, it is easy enough to say with certainty at this point that it will not (despite the bug-eyed ravings of some like #13 at this discussion) amount to a “confiscatory technology transfer.” I say that with confidence simply because the extisting TRIPS treaty text does not make provision for a forced tech transfer, so it follows that there is no waiver to the treaty text that could possibly result in such an outcome.

   I would also urge people promoting this wild idea to pause and ask themselves exactly how a forced tech transfer could happen in these circumstances. How exactly would one go about forcing a company to disclose know-how? The government’s power to compel such an outcome is rather weak, when one assesses it objectively. How would one even know if the know-how had been disclosed accurately or not? The actual levers of power that a government has to effect such a forced tech transfer (even if they wanted to) are pretty weak. The private actors hold all the cards here.
   1. 4.1

      Ron Katznelson has a “bug-eye’d rant”….

      While Greg continues his own rants of dubious and “galling bit of two-facedness.”

      Keep up that Ostrich pose there Greg.
   2. 4.2

      Greg: “exactly how a forced tech transfer could happen in these circumstances. How exactly would one go about forcing a company to disclose know-how?”

      Several drug companies have affiliates manufacturing COVID related vaccines or medicines in foreign countries. Those facilities have all the tools, know-how and IP owned by the parent company. If such a foreign country enacts emergency measures for taking over and forcing those facilities and their employees to operate under government emergency decrees pursuant to what they would consider a “fair IP waiver,” that would actually mean a confiscatory technology transfer.

      I am puzzled where you draw your confidence about the safety of the negotiation process. The USTR statement that the WTO negotiations “will take time given the consensus-based nature of the institution and the complexity of the issues involved,” is no guarantee that self-declared “emergency waivers” will not be enacted earlier given that daily rise in COVID deaths would soon generate enormous pressures on severely-impacted governments, to move forward promptly due to the exigency of alarmingly sharp rise in COVID cases.

      Once the Biden Administration has made public through the USTR that it intends to support a TRIPS waiver, countries need wait no longer for the actual waiver decision itself – they could act immediately to take over facilities within their jurisdiction expecting that no WTO enforcement action will actually be taken against them under the TRIPS. Given the extreme circumstances, the proverbial “act first and ask forgiveness later” would be a rational act under such declared national emergencies. Does anyone really believe that the Biden Administration would actually haul such a country into a WTO enforcement proceeding for a violation that the USTR already declared excusable? Will any other WTO member state dare such ill-timed “politically incorrect” WTO enforcement move when negotiations on a waiver are ongoing?

      The Biden Administration has just precipitated an immediate dangerous development, opening the door for potentially risky confiscatory actions. In just less than a month, at a time when daily deaths double in highly-impacted countries, will there be any upside for such a country to wait any longer?
   3. 4.3

      My friend, Greg the Ostrich likely also thinks that the ‘bad’ group of “R’s” are also engaging in “bug-eyed raving“: link to ipwatchdog.com

      What a melt-down of cognitive dissonance from Greg.
2. 3

   The Drezner piece makes some good points. I know that this is hard to believe for those of us who earn our honest crusts by obtaining IP protections, but pharmaceutical companies do not innovate in order to obtain IP. Rather, we (I am in-house pharma patent attorney, so I say “we”) innovate in order to help our customers and to earn profits (the precise order of those goals varies among companies, but all have those two goals). IP is a means toward profits, not an end in itself.

   COVID-19 vaccines have been profit-gushers for every company that has gotten one approved. By this point, every company that has brought a vaccine to market is admirably satisfying both the “help patients” goal and the “earn profits” goal. Even if IP rights were totally abrogated at this point (not at all a likely outcome, but just go with the hypo for the moment), that would take nothing away from the success that each vaccine maker has achieved to date.

   Why then should a waiver—arriving at this point in the story—lead a rational pharma exec to conclude that the next disease is not worth investing to cure? The facts on the ground from this experience should logically lead to exactly the opposite conclusion.
   1. 3.1

      Good points Greg — thanks.
      1. 3.1.1

         Pro Say,

         This is merely a prior post from Greg regurgitated anew on this thread.

         You probably should NOT be thanking him, as his post is both shallow and misleading, containing various “virtue signals” but having relatively low true signal to the real grab of NON-patent IP waiver that should be being noticed.
3. 2

   Does anyone here recall any cases of a “patent troll” asserting what might be considered “high-quality” patents?
   1. 2.1

      Back in the day (when the term was first being propagandized by Big Corp), there was a patent blog named “The 271 Blog,” that deconstructed the myth that Tr011s only used as their weapons “low quality” patents.

      Of course — as you should well know — the focus should not BE on “low quality patents,” but instead should be on “low quality examination.”
4. 1

   For all of the full (critically, including more more than mere patent waiver) IP waiver articles, at this point the Devil will be in the details, and the signaling (for virtue and otherwise) has been pretty well staked out in the main blogosphere.

   In other words, none of the articles presented on the topic had much of anything meaningful to add.

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