Although the intrinsic value of the technology protected under such patents is low, they are often strategically used to generate or keep monopolistic positions that affect competitors and consumers. Thus, the proliferation of patents that do not make a genuine technical contribution limits legitimate competition and undermines innovation. An investigation conducted by the European Commission on the pharmaceutical industry, for instance, concluded that:Heading to the rest of the world, we discover that it's even in a worse mess, particularly the offensive positions Western firms take through abusing patent systems elsewhere:
· Filing numerous patent applications for the same medicine (forming so called "patent clusters" or "patent thickets") is a common practice… to delay or block the market entry of generic medicines.
· individual medicines are protected by up to nearly 100 product-specific patent families, which can lead to up to 1,300 patents and/or pending patent applications across the Member States.
· patent litigation cases increased by a factor of four between 2000 and 2007; generic companies prevailed in 62% of 149 litigated cases that lasted from six months to more than six years.
· European governments and consumers paid around 3 billion Euros in excess between 2000 and 2007 (in relation to 219 drugs) due to abuses in the exercise of patent rights.
The acquisition of a large number of patents around a single technology has become common practice. Contrary to the ordinary belief that one product will deserve one patent, a single medicine may be covered by hundreds of patents. Thus, a WIPO study identified around 800 patents on ritonavir, an important component in the treatment against HIV/AIDS. In order to preserve a monopolistic position after the expiry of basic patents, pharmaceutical companies routinely apply (and often obtain) patents on derivatives, dosage forms, new uses, etc. of existing medicines thereby ‘evergreening’ the original patents.
Patent offices in developing countries have followed similar patterns regarding the patentability criteria. Technical assistance programs, intense advocacy and business lobbying, have been effective in creating pro-patent practices that transform the patent system in a convenient mechanism of market control and exclusion. In most cases, patent activity by foreign companies does not encompass any investment in production (since markets are mainly supplied through imports) nor a real transfer of technology to the countries where protection is sought.As I said, it's a very ugly picture. Even if generic manufacturers win nearly two-thirds of the time, Western Big Pharma firms have the capability to tie proceedings up for a very period. Which, truth be told, is their intention to keep their strangleholds intact on items such as needed medicines poor countries have long been denied.
A research conducted in five developing countries (Argentina, Brazil, Colombia, India and South Africa) on patenting in the pharmaceutical field revealed several aspects of the functioning of the patent system that raise significant concerns. Some of the findings of the study were as follows:
· Pharmaceutical patents are overwhelmingly concentrated in the hands of foreign companies (with the exception of India).
· The introduction of product patent protection has had no impact in terms of promoting local innovation in pharmaceuticals.
· There is a significant proliferation of patents over minor technical changes that are often used to create undue constraints on legitimate competition that negatively affect access to medicines.
· A large proportion of granted patents are based on the so-called ‘Markush claims’; if ‘selection patents’ are later on allowed on elements already disclosed in such claims, market control may be maintained through ‘evergreening’ of the original patent.
· Many patents and patent applications do not mention the International Nonproprietary Name (INN) of known drugs, thereby making patent searches and oppositions extremely difficult and costly.
The rest of the article gives suggestions on overhauling the defective global patent system, but let's just say that, in the pharmaceutical area more than most, he who has the gold makes the (convoluted) rules.
