Paradigm shifts are the evergreens in social evolution
The TRIPS Agreement is Annex 1C of the Marrakesh Agreement Establishing the World Trade Organization, signed in Marrakesh, Morocco on 15 April 1994. (Part of the Uruguay round)
Or, to paraphrase the noted American philosopher Alfred North Whitehead, all Western patent systems consist of but a series of footnotes to the Venetian patent statute. (same source)
Many Italian guilds adopted regulations that granted temporally-limited monopolies on innovations, beginning with the silk weaving industry, including the development of new patterns of silk weaving, as well as the invention of new machinery. Because Venetian guilds were “powerless to grant or allow monopolies by action of their own,” however, Prager argues that the regulations required monopolies to be issued by the state, making them the forerunners of modern patents. Prager’s answer to the questions of “Why Venice?” and “Why the fifteenth century?” is that “quasi-patents were most developed” in Venice and “that the silk patent law came when the idea of intellectual property was gaining approval.” Thus, “[t]he conclusion seems justified that it was this ancient, newly vitalized idea which expanded the medieval tradition of quasi-patents into the first modern patent system” (Prager, 1952:131-132). Third, although primarily focused on trading, Venice also had some important local industries, such as glass and other luxury goods,59 Rather than controlling the details of production, the Venetian guilds’ primary role was safeguarding the boundaries of the craft,76 allowing individuals within each craft to compete through innovation.77
focus on the one unambiguous feature of the Statute and the struggles over monopolies that produced it: the dispute between crown and Parliament over who would evaluate the validity of individual grants of patents of monopoly. The innovation introduced in England was not the overcoming of the common law’s long-standing prohibition on all monopolies, as the crown continued to issue monopoly grants, but the assertion of the right to have claims to monopolies adjudicated in a neutral forum against a utilitarian standard.
Section 8.The Congress shall have power to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defense and general welfare of the United States; but all duties, imposts and excises shall be uniform throughout the United States;To borrow money on the credit of the United States;To regulate commerce with foreign nations, and among the several states, and with the Indian tribes;To establish a uniform rule of naturalization, and uniform laws on the subject of bankruptcies throughout the United States;To coin money, regulate the value thereof, and of foreign coin, and fix the standard of weights and measures;To provide for the punishment of counterfeiting the securities and current coin of the United States;To establish post offices and post roads;To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries;To constitute tribunals inferior to the Supreme Court;To define and punish piracies and felonies committed on the high seas, and offenses against the law of nations;To declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water;To raise and support armies, but no appropriation of money to that use shall be for a longer term than two years;To provide and maintain a navy;To make rules for the government and regulation of the land and naval forces;To provide for calling forth the militia to execute the laws of the union, suppress insurrections and repel invasions;To provide for organizing, arming, and disciplining, the militia, and for governing such part of them as may be employed in the service of the United States, reserving to the states respectively, the appointment of the officers, and the authority of training the militia according to the discipline prescribed by Congress;To exercise exclusive legislation in all cases whatsoever, over such District (not exceeding ten miles square) as may, by cession of particular states, and the acceptance of Congress, become the seat of the government of the United States, and to exercise like authority over all places purchased by the consent of the legislature of the state in which the same shall be, for the erection of forts, magazines, arsenals, dockyards, and other needful buildings;--AndTo make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof.
The WTO was born out of negotiations, and everything the WTO does is the result of negotiations. The bulk of the WTO’s current work comes from the 1986–94 negotiations called the Uruguay Round and earlier negotiations under the General Agreement on Tariffs and Trade (GATT). The WTO is currently the host to new negotiations, under the ‘Doha Development Agenda’ launched in 2001.
GATT was signed in 1947 and lasted until 1993, when it was replaced by the WTO in 1995
What constitutes “serious prejudice to the environment” is open for debate.Exploitation may be prohibited in the country of origin, but that does not prevent the applicant from extending its patent family to another nation where exploitation is within the law. Mention the Doha Declaration on AIDS drugs which Article 66.1 and 66.2.14 November 2001 Doha Declaration §17. We stress the importance we attach to implementation and interpretation of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement) in a manner supportive of public health, by promoting both access to existing medicines and research and development into new medicines and, in this connection, are adopting a separate declaration.
Only of interest for those working in biotechnology and renewable energy, biomass, etc.
So, where do we start
Open Source Hardware
OPEN SOURCE HARDWARE Industrial Revolutions Challenges to the Patent System Dannie Jost World Trade Institute, University of Bern, Switzerland19/09/2012 Dannie Jost #OKFest 1
Question:How many industrial revolutionsdoes it take to change the waythat our society understandsand uses intellectual property?19/09/2012 Dannie Jost #OKFest 2
Why this, why now?… we want to be able to break the constraints ofthe existing limitations in sharing knowledgeand know-how… the pace of development is too slow… we want to tailor the technology… we want to own the technology that we use… we want to share… we want to learn19/09/2012 Dannie Jost #OKFest 3
OHANDAFreedom 0: The freedom to use the device for anypurpose.Freedom 1: The freedom to study how the device worksand change it to make it to do what you wish. Access tothe complete design is precondition to this.Freedom 2: Redistribute the device and/or design(remanufacture).Freedom 3: The freedom to improve the device and/ordesign, and release your improvements (and modifiedversions in general) to the public, so that the wholecommunity benefits. Access to the complete design isprecondition to this.19/09/2012 Dannie Jost #OKFest 4
the idea is…to foster a community where those who benefitfrom the work of others in turn contribute theirimprovements to that community.(Ackerman, 2008)19/09/2012 Dannie Jost #OKFest 7
trends#1 makers and hackersCommons based peer production is emerging in the digitallynetworked environment (Benkler & Niessenbaum 2006)#2 TRIPS + clauses (ACTA, TPP)19/09/2012 Dannie Jost #OKFest 8
game shifters technology① Literacy (analog and digital)② Design Sampling③ Digital Fabrication④ Broadband (fixed, mobile)19/09/2012 Dannie Jost #OKFest 9
paradigm shifts in the making• Creation – from cloistered to ubiquitous• Production – from centralized to distributed• Organization of the collective – from static nation states to citizen’s interests19/09/2012 Dannie Jost #OKFest 10
… the Republic of Florence issued a patent in 1421 to theeminent architect and inventor, Filippo Brunelleschi, for hisship, which was designed to transport Carraran marble for hisfamous Duomo of Florence. However the ship sunk, and with it the (first) Florentine patent system.19/09/2012 Dannie Jost #OKFest 15
Venice, 1474“The Venetian Republic, on March 19, 1474, enacted the firstknown general patent statute, with overwhelming support in theVenetian legislature. This statute, which sought to encouragetechnological advancement by issuing private grants andimportation licenses, established a foundation for the world’sfirst patent system, leading one historian to proclaim that ‘theinternational patent experience of nearly 500 years has merelybrought amendments or improvements upon the solid coreestablished in Renaissance Venice’ “ Nard, Craig A, and Morriss, Andrew P. “Constitutionalizing Patents: From Venice to Philadelphia.” Review of Law & Economics 2, no. 2 (2006): 223- 321.19/09/2012 Dannie Jost #OKFest 16
Venice, 1474We have among us men of great genius, apt toinvent and discover ingenious devices; and inview of the grandeur and virtue of ourCity, more such men come to us every day fromdivers parts. preamble19/09/2012 Dannie Jost #OKFest 17
Statute of Monopolies, 1624… any Declaration before-mentioned shall not extend to anyLetters Patents and Grants of Privilege for the Term of fourteenYears or under, hereafter to be made, of the sole Working orMaking of any manner of new Manufactures within thisRealm, to the true and first Inventor and Inventors of suchManufactures, which others at the Time of Making such LettersPatents and Grants shall not use, so as also they be not contraryto the Law, nor mischievous to the State, by raising Prices ofCommodities at home, or Hurt of Trade, or generallyinconvenient ...19/09/2012 Dannie Jost #OKFest 18
US Constitution, 1787Sec. 8The Congress shall have Power …To promote the progress of science and usefularts, by securing for limited times to authors andinventors the exclusive right to their respectivewritings and discoveries; First Congress, Patent Act, 179019/09/2012 Dannie Jost #OKFest 19
1883• Paris Convention for the Protection of Industrial Property• 174 Parties (Member States)• Article 4: [A to I. Patents, Utility Models, Industrial Designs, Marks, Inventors’ Certificates: Right of Priority G. Division of the Application19/09/2012 Dannie Jost #OKFest 20
Fast Forward…• 1947 GATT (1993) General Agreement on Tariffs and Trade• 1994 GATT• 1995 WTO World Trade Organization – Uruguay Round 1986-1994 – Trade Related Aspects of Intellectual Property Rights19/09/2012 Dannie Jost #OKFest 21
TRIPS Article 27*Patentable Subject Matter1. Subject to the provisions of paragraphs 2 and 3, patents shallbe available for any inventions, whether products orprocesses, in all fields of technology, provided that they arenew, involve an inventive step and are capable of industrialapplication.(5) Subject to paragraph 4 of Article 65, paragraph 8 ofArticle 70 and paragraph 3 of this Article, patents shall beavailable and patent rights enjoyable without discrimination asto the place of invention, the field of technology and whetherproducts are imported or locally produced.* As of 10 May 2012, the WTO counted 155 Member States19/09/2012 Dannie Jost #OKFest 22
…Possible Exclusions I2. Members may exclude from patentability inventions, theprevention within their territory of the commercial exploitationof which is necessary to protect ordre public ormorality, including to protect human, animal or plant life orhealth or to avoid serious prejudice to theenvironment, provided that such exclusion is not made merelybecause the exploitation is prohibited by their law.19/09/2012 Dannie Jost #OKFest 23
…Optional Exclusions II3. Members may also exclude from patentability:(a) diagnostic, therapeutic and surgical methods for the treatment ofhumans or animals;(b) plants and animals other than micro-organisms, and essentiallybiological processes for the production of plants or animals other than non-biological and microbiological processes. However, Members shall provide forthe protection of plant varieties either by patents or by an effectivesui generis system or by any combination thereof. The provisions of thissubparagraph shall be reviewed four years after the date of entry into force ofthe WTO Agreement.19/09/2012 Dannie Jost #OKFest 24
What is an invention?EPC Article 52(2) recites what is not regarded asan invention:(a) discoveries, scientific theories and mathematical methods;(b) aesthetic creations;(c) schemes, rules and methods for performing mentalacts, playing games or doing business, and programs forcomputers;(d) presentation of information.19.09.2012 25
what have we learned from patent law history?• It started with the renaissance guilds• It has not changed much since then• It is part of international economic law• It is based on the sovereignty of the nation state• It serves the interests of industrial production entities• It creates repository of documents describing technologies; public domain19/09/2012 Dannie Jost #OKFest 26
Is this the fear?‘[open hardware designers] theoreticallynot have much legal recourse if theirdesigns get patented, made/sold, or usedin a closed system’A Powell, Democratizing production throughopen source knowledge: from open software toopen hardware, 34 Media, Culture & Society691–708 (2012).19/09/2012 Dannie Jost #OKFest 27
You are free to…• Put anything in the public domain.. – Just publish it (defense publishing) • publication is not synonym with access • publication is the first step in access • access is the first step in share-alike – IF YOU PUBLISH – like in make it public – YOU DESTROY THE NOVELTY OF ANY SUBSEQUENT ATTEMPT AT PATENTING ☞ STANDARD19/09/2012 Dannie Jost #OKFest 28
Of all the IPR objects, which ones can open hardware use?• Trademarks• Expired patent specifications, unsuccessful patent applications (public domain)• Copyright (License)19/09/2012 Dannie Jost #OKFest 29