不要以為 WTO 離我們而去, 一年365日, 它都在世界各地製定一些影響全世界人民切身利益的政策, 最近在日內瓦的WIPO會議, 就討論藥物和人類基因的專利問題, 從討論裡可看到, 這些小組會的主席都是來自己發展的大國, 他們不顧貧窮國家人民的死活, 捍衛大藥廠的利益, 要把生死悠關的藥物專利化.
發現人類荷爾蒙的諾貝爾得獎科學家 Sir John Sulston, 企出來反對人類基因專利化, 指出這樣會防礙科學的發展. 但知識產權機構(發展國家官方代表)和生物科技工業的代表(商業力量代表)均著力推翻 Sulston 的說法, 指若沒有專利會影響研發.
Sulston 以有力的統計指出, 大部份科學家的動力來自對科學的興趣和資助, 而不是專利.
在藥物和軟件的小組亦有很激烈的討論:
全文見
The final day of the WIPO open
forum on patents saw heated exchanges on the impact of patents and
"flexibilities" of the system on access to medicines, as well as an
interesting debate on whether genes and life forms should be patented.
The
Nobel Laureate, Sir John Sulston, who is credited with the discovery of
the human genome, gave his view that gene patenting should not be
allowed, and that patents had been found to have had a hindering effect
on upstream science, especially on gene-based diagnostic tests.
The
highlight in another session on patents and health was a heated
exchange between the leading representative of the multinational drug
companies and the former Chairman of the US generic trade association ,
on whether patents hinder access to medicine and whether compulsory
licensing results in health benefits.
The forum was held by WIPO
to discuss issues surrounding its draft Substantive Patent Law Treaty
(SPLT), negotiations on which have been
deadlocked because of differences between developed and developing
countries. The final day of the three-day forum was held on 3 March.
In
a session on "bio-technological inventions, patenting of genes and life
forms and the impact of patenting on upstream science", Professor
Joseph Strauss of the Max Planck Institute for Intellectual Property
said that there was no empirical evidence on serious negative impacts
on upstream science, despite the large number of patents that have been
granted on genes. He also said that without patents on biotech
products, many biotech companies could not have provided medicines.
Nancy
Linck from the Biotechnology Industry Organization said the US patent
system is a "strong enduring system that can be improved but is
certainly not broken". She added that having disclosure of the source
of origin (of genetic resources) in the patent system would be
devastating especially for the small biotech companies.
She
faulted the developing countries which do not have national access and
benefit sharing regimes in place, as this resulted in a situation where
it is not clear who to reward when the genetic material is taken. She
also said that the US would not sign on to any initiative that
incorporates disclosure requirements.
Several
of the previous speakers' arguments were rebutted by Nobel Laureate and
Vice Chair of the Human Genetics Commission Sir John Sulston (who is
credited with the discovery of the human genome). He said that in the
last 30 years although IP expansion has been breathtaking, with clear
beneficiaries, the value for society as a whole is less certain, as
exploration and innovation are threatened by the culture of exclusive
rights.
He
said that life forms are not patentable since they occur in nature and
there is no inventive step. A modified life form is patentable, but
only as far as the actual modification is concerned and it involves an
inventive step. In future when new life forms will be synthesized from
scratch, such life forms will be inventions, and therefore patentable.
Before that point it will be commonplace to modify life forms so
extensively that their origins are unclear.
He added that
conflicts arise because under the current exclusive-rights system
possession of a patent confers too much power. Therefore, stricter
controls need to be instituted on its use and until that has been done,
it is better to retain a precautionary position on claims.
On
the issue of patenting of genes, he said that genes are discoveries,
and
the inventive step consists of their isolation from nature. However,
even the isolation has been obvious for many years. He noted that there
has been a corresponding shift to claims through functionality (of the
genes), but this constitutes discovery. So logically gene patenting
should not be allowed at all, he said.
Sir
John also said he was assured 15 years ago that strong gene patents
would be essential to ensure that companies' efforts are spread out,
rather than focussing on a few easy targets. But the pharmaceutical
scene is now
awash with "look-alike" drugs, an outcome that has nothing to do with
patents and everything to do with markets.
Stressing
that patenting has an impact on upstream science, he referred to a
comprehensive survey, combined with review material, published by the
National Research Committee (NRC) of the US, which concluded that there
is some inhibition on research caused by third party patents. In most
fields a minority of researchers declare significant impediment. The
exception is in the area of gene-based diagnostic tests, where a
majority had experienced interference.
Another finding was that
only 7% of researchers were motivated by patents while the majority
were motivated by scientific importance (97%); personal interest (95%);
and availability of funding (80%).
Making the point that patents
can be an obstacle, he gave his own personal experience as a
researcher, when the supplier of the machines tried to keep the
emerging data encrypted, so that they are tied to the software
throughout the analysis. He said that negotiation did not work so they
decrypted the output file from the machine.
Surveys concluding
that all is well are not necessarily a vindication of the system. This
only often means that people are getting around or ignoring the
obstacles put in their way by patents. Tightening the system will be
destructive of science.
The NRC, he said, concluded that patents
already have a small negative effect on upstream research, and that
this is likely to increase. To offset this trend, it recommends
measures to maintain the vigour of public
research.
At question time, Josh Sarnoff from the American
University asked Linck how
fair was it to patent genetic materials, even if there is uncertainty
as to who to reward. He added that the disclosure requirement is
designed to remove the uncertainties. Responding, Linck reiterated that
having disclosure requirement within the patent system is not the way
to go, adding that requirements of the disclosure are difficult to
satisfy.
Another participant said there was a need to ensure that the patent system
is made more equitable and including the disclosure requirements would make it more equitable.
To
a question as to whether the problems of bad patents can be resolved so
long as the patent offices have an economic interest in granting the
patents, Sulston and Strauss both agreed that the system in patent
offices have to be changed.
But when Strauss commented that
scientists are not well rewarded and the IP system can provide
sufficient rewards, Sulston rebutted him, saying that there are a lot
of rewards for scientists including the joy of simply doing the
research. He also added that when traditional knowledge is used in a
profit-making manner, it is an injustice.
At another session on
"Patents and Public Health, Including Second Use Patents", following
the panel presentations, there was a heated exchange between one of the
speakers, Eric Noehrenberg, who represents the global drug industry,
and William F. Haddad, former Chairman of the US generic trade
association.
The other speaker on that panel, James Love,
Director of Consumer Project on Technology, said medicines were costly
and un-affordable to many. The pharmaceutical companies seek maximum
profit and use the patent system to raise prices. Using patents is a
costly way to finance R&D, particularly for products that are new
and better than existing products.
Thus, he proposed to separate
the market for innovation from the market for products. He supported a
bill in the US Congress (the Medical Innovation Prize Act of 2005)
which provides generic producers non-voluntary authorizations to use
any and all patents (and sui generis IP, such as rights in registration
data) relevant to the manufacture and sale of all prescription
medicines in the US market....