[Ip-health] [A2k] WIPO study on Patents and the Public Domain

Seth Johnson seth.p.johnson at gmail.com
Fri Nov 18 07:55:29 PST 2011

On Fri, Nov 18, 2011 at 6:50 AM, Thirukumaran Balasubramaniam
<thiru at keionline.org> wrote:
> WIPO's study on Patents and the Public Domain can be found on the following link:
> http://wipo.int/edocs/mdocs/mdocs/en/cdip_8/cdip_8_inf_3.pdf
> "Information which must be disclosed for the benefit of the public at the expense of the party disclosing it should not be put to unfair use by competitors or free-riders who have incurred no cost in creating and verifying it.

This is quite interesting.  They're just making stuff up.  This "No,
information can't be public just because you're not allowed to compete
with it" is rootless, based in no sense on a legitimate legal
tradition (of the democratic sort) that recognizes how the public and
their government relate in the production of an enlightened society
through information.  The nature of information is integral to how
that relationship is supposed to work.

The most bizarre aspect of this passage is how it specifically refers
to disclosure for the benefit of the public, then relates that subject
immediately to a bogus norm.

> This issue is one which touches not on the patent system itself but on those who use it, and it is provided for under international law:  it relates to what is often called “regulatory data”, information demanded by public authorities as proof of the efficacy, environmental impact or other characteristic of a new medicine or other chemical product.  Article 39(3) of the TRIPS Agreement,[1] which neutrally describes it under the heading “Undisclosed Information”, requires Members to provide that such regulatory data is either kept confidential or that its use be restricted so as to prevent unfair competition.  In theory this provision relates to all test data, whether it relates to a product which has been patented or not;  in practice its importance lies in the fact that manufacturers of generic and other equivalent products cannot make free use of the data furnished by the originator of the tested product.

The notion here is that somehow information must be maintained in this
kind of "privileged" circumstance, and that an international
instrument will be able to govern that "legal status," despite its
inconsistency with government of the people and reality.  What
principles would apply to a Wikileaks disclosure of such information
provided by a "privileged" whistleblower?  It isn't just so much that
there would (and will) tend to be reactionary development of legal and
judicial bases for enforcement of the bogus norm, but that this mode
of establishing "legal bases" can not long survive a confrontation
with reality or the claims of the people from whom the government
obtains its powers.

> While the obvious significance and potential importance of this information to the public domain, it should be understood that this provision of the TRIPS Agreement does not address public domain concerns.

Two things:

1) Note the bizarre sentence fragment in the attempt at an
introductory independent clause, "While the obvious . . ."  What is
the verb?  ". . . must be recognized?"  ". . . should be spat upon?"
:-)  It's like a psychological indicator of repressing of a truth that
can't be confronted.

2) Just because they said so?  This reasoning is both rootless and ludicrous.

> There is no indication as to how long such regulatory data should be kept confidential or its use restricted;  this may result in the retention of regulatory data in a state of confidentiality long after any related patents and supplementary protection certificates have expired, with the result that the public is deprived of useful material which might save lives as well as be of commercial or technical value."

Just weird.

> [90]           The TRIPS Agreement, Article 39(3): “Members, when requiring, as a condition of approving the marketing of pharmaceutical or of agricultural chemical products which utilize new chemical entities, the submission of undisclosed test or other data, the origination of which involves a considerable effort, shall protect such data against unfair commercial use.  In addition, Members shall protect such data against disclosure, except where necessary to protect the public, or unless steps are taken to ensure that the data are protected against unfair commercial use”.

This provision has inherent contradictions with the sources of
legitimacy for government of, by and for the people, and as such must
sooner or later fall apart.


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