Conquest by patents: once famous for flagrantly breaking patents, the US is now the world's fiercest protector of them. Beth Burrows examines the conversion from rebel to pitbull—and assesses the cost for us all - Column

New Internationalist, Sept, 2002 by Beth Burrows

WHERE the business of government has indeed become Business, it is difficult to hear the voices that still question the 'need' to be globally competitive, the wisdom of unrelenting market penetration, or the true cost of a revolving employment door between industry and government. Where commerce is king, a regulator suddenly becoming executive in the industry he used to regulate, or a trade representative being appointed to the board of directors of a company his negotiations greatly benefited, hardly merits media attention. Ethics, in such a climate, inevitably falls on hard times.

In 1992, I attended a conference in Seattle about 'The Future of Intellectual Property Protection for Biotechnology in the United States, Europe, and Japan'. For three days eminent speakers discussed patents. On the last day of the conference, one of the panellists bemoaned the situation in Europe where at the time it was nearly impossible to obtain a patent on any form of life. He hoped that his colleagues in other places would never have to face the situation he faced with 'environmentalists and those who would bring ethics and other irrational considerations to the table'. Those were his words: 'ethics and other irrational considerations'. No member of the audience challenged the pairing. Not one learned lawyer. Not one high official. Not one heavily credentialed academic. Not one expert.

Patents are a form of intellectual property rights often touted as a means to give 'incentive and reward' to inventors. But they're also a cause for massive protests by farmers, numerous lawsuits by transnational corporations and indigenous peoples, and countless rallies and declarations by members of civil society.

It is impossible to understand why they can have all these effects unless you first recognize that patents are about the control of technology and the protection of competitive advantage. Once you have imbibed that commercial reality, all else--including the granting of patents on anything of value, including living organisms and their parts--will make perfect sense.

Lessons from history

In the 1760s, the Englishman Richard Arkwright invented the water-powered spinning frame, a machine destined to bring cotton-spinning out of the home and into the factory. It was an invention which made Britain a world-class power in the manufacture of cloth.

To protect its competitive advantage and ensure the market for manufactured cloth in British colonies, Parliament enacted a series of restrictive measures including the prohibition of the export of Arkwright machinery or the emigration of any workers who had worked in factories using it. From 1774 on, those caught sending Arkwright machines or workers abroad from England were subject to fines of [pounds sterling]200 (about $300 at today's conversion rates) and 12 years in jail. That's how serious the English were about the Arkwright patents.

In 1790, Samuel Slater, who had worked for years in the Arkwright mills, left England for the New World disguised as a farmer. Arriving in the US, he sought financing and recreated from memory an entire Arkwright factory and all its equipment. He thereby enabled the production of commercial-grade cotton cloth in the New World and put the US firmly on the road to the Industrial Revolution and economic independence.

Slater was highly rewarded for his achievement. In his own lifetime he was considered a hero. He is still deemed the 'father of American manufacturing'. To the English, however, he was a patent infringer, an intellectual property thief.

Interestingly, patent protection was a part of US law at the time of Slater's deed. But that protection would only extend to US innovations. It is worth remembering that until the 1970s it was understood, even accepted, albeit with grumbling, that countries only enforced those patent protections that served their national interest. When the young United States pirated the intellectual property of Europe -- and Slater wasn't the only infringer -- people in the US congratulated themselves. They saw the theft as evidence of their national virility, a justifiable response to England's refusal to transfer its technology.

By the early 1970s, the situation had changed. US industry demanded greater protection for its idea-based products -- such as computers and biotechnology -- for which it still held the worldwide lead. Intellectual property rights held the key. And so, together with its like-minded industrial allies, the US pushed for the inclusion of intellectual property clauses, including standards for patents, in international trade agreements.

This has engendered a huge change in trade agreements and begun a fight that's not over yet. Ironically, adopting a worldwide one-size-fits-all patent regime might mean barring the path to development once taken by the US itself.

Victory in the first rounds went to the transnational corporations headquartered in the industrial world. They bragged openly about pushing the Trade Related Intellectual Property Rights (TRIPs) regime of the World Trade Organization -- harmonized standards for copyright, patents, trademarks and the like -- on to the agenda of international trade agreements. To quote from a 1995 Pfizer Pharmaceutical advertisement in the Southeast Asian edition of The Economist: 'In conjunction with more than a dozen companies from all the relevant sections of US business, Pfizer and IBM co-founded the Intellectual Property Committee or IPC. The US Trade Representative was impressed and suggested that we increase our effectiveness internationally by joining forces with UNICE [Union of Industrial and Employers' Confederations of Europe], the principal pan-European business group, and its counterpart in Japan, Keidanren... Working together... our combined strength enabled us to establish a global private sector network which l ay the groundwork for what became "TRIPs".'