Intellectual Property to Catch the Tech Wave: UNCTAD Technology and Innovation Report 2021

Updated: May 4

Geneva 03.05.2021: Today's UNCTAD roundtable on its "Technology and Innovation Report 2021" Catching technological waves: Innovation with equity" leaves no doubt that the global intellectual property system must transform its legal infrastructure and philosophy, to "facilitate frontier technology readiness" among all countries, with an emphasis on developing States. Among several key issues identified as pressing for developing countries was that ; "Intellectual property rights and technology transfer – Stringent intellectual property protection will restrict the use of frontier technologies that could be valuable in SDGs related areas such as agriculture, health and energy."[Source quote: UNCTAD Technology Report]

The report highlighted the issue of intellectual property in agriculture, a domain in which certain types of agricultural innovation, [plants obtained by “essentially biological processes”] are normally excluded from patentability but covered under the UPOV system; an important legal device for promoting food security. In contrast, the EPO intellectual property practice around patentability holds that transgenic plants and technically created mutants are patentable [plants which are not produced by "essentially biological processes"]. For example the EPO position is that new plants created by means of CRISPR/Cas and UV-induced mutation fall within the definition of "technically created". Acceleration in the creation of such patented plants can sharpen the technology and development divide.

However the UNCTAD Technology and Innovation Report 2021 points to the CGIAR network as a promising example of an innovative approach to intellectual property rights and technology transfer in agriculture; to yield development centred results. This is assisted by the CGIAR Principles on the Management of Intellectual Assets (IA Principles). These IA Principles are implemented by 15 CGIAR Research Centers provide a framework for "governing the production, acquisition, management and dissemination of intellectual assets (IAs) and the use of Intellectual Property Rights (IPRs) with an aim of maximizing global accessibility of CGIAR’s IAs in order to achieve the broadest possible impact on target beneficiaries" [ excerpt: CGIAR IA Principles Review - 2017], (disadvantaged farmers).Though the IPRs portion of the Technology and Innovation Report 2021 focusses significantly on technology transfer, it is important that developing country IP offices and research institutions foster an environment that leads to more examples of native innovations like the Kenyan grafted Wambugu apples. The report also highlighted India's attempt to foster "open source drug discovery for TB drugs, creating a knowledge commons through crowdsourcing".

The UNCTAD Report warns that many of the "benefits of frontier technologies could be retained by a privilegeed few through the use of intellectual property rights." It noted the conventional last resort compulsory licensing solution, available through theTRIPS Agreement as one legal mechanism to counter this. However the Report recommended that, ‘transactional bottlenecks’ are more effectively resolved through, "private actions by industry ...[which]... may be more effective than statutory interventions. Alternative collaborative arrangements include patent pooling, clearing houses, and open source licensing. Governments can also buy out patents."[excerpt: Technology and Innovation Report 2021]

See my previous Afronomics Law post related to these issues on The Importance of Intellectual Property and International Investment Agreements for Overcoming the “Peripheral Economy Trap”.

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