The United States Patent and Trademark Office (USPTO) is asking for public comment on its proposal to provide an incentive to those who develop technologies that meet humanitarian needs. The goal of the proposal is to increase access of impoverished populations to such technologies. The agency’s press release says that such technologies include treatments for tropical diseases, diagnostic medical tools, crops with higher yield or better nutritional value, and sanitation or clear water. The USPTO’s announcement to encourage humanitarian technologies is commendable and represents an approach that should also animate its copyright policies.
The agency proposes to provide this incentive by speeding up re-examinations of patents owned by entities that invent such technologies. Re-examination is a process whereby a patentee or a third party can challenge the validity of an issued patent and either have it invalidated or have its scope narrowed. The USPTO points out that patents under re-examination are the most commercially significant patents and implies that fast-tracking such re-examination would be commercially valuable to the patent holder. Currently, the USPTO takes between 19 and 20 months to take action in reexamination proceedings. The agency proposes to fast track this action and respond within 6 months. The request for comments seeks responses on how this program should be designed.
The USPTO’s request for comments recognizes implicitly that patents can be used either to foster humanitarian/welfare goals or to hinder them. For example, a patented drug that provides a cure for a dangerous disease can either be marketed at a price that makes it unaffordable to most people or it can be licensed at rates that foster greater access. The request for comments also demonstrates that the government can play a vital role in fostering positive use of patents.
Like patents, copyrights can also be used to foster social welfare or hinder it. For instance, exclusive rights could allow artists to reap benefits from their works thereby fostering creativity. On the other hand, the statutory damages regime could stifle innovation by exposing to liability those relying on fair use to bring innovative products to market. Similarly, an international copyright policy with a myopic focus on enforcement of rights could ignore the fact that high prices of copyrighted works impede access to information and knowledge. What overall welfare effect the copyright system produces depends on how law and policy balance the need to give authors control over their works with the need to foster innovation and access. Yet, the administration seems blind to this need for balance. While its patent policy, reflected in its request for comments, seeks to promote social welfare, its copyright policy seems to hinder it.
The Anti-Counterfeiting Trade Agreement (ACTA) is a prime example of this disconnect. We have written extensively about the harms ACTA would do to social welfare. Even though the latest ACTA leak indicates that many of its harmful provisions with respect to copyright have been scaled down, ACTA’s continued focus on stronger penalties and greater enforcement measures ignores the purpose of copyright law: to foster creativity with the purpose of encouraging greater access. The administration takes a similar approach in its Special 301 process, punishing countries that fail to have the highest penalties for infringement or incorporate beneficial limitations and exceptions in their laws.
A better approach would be to encourage rights holders to make their works available at reasonable prices and on reasonable terms. This would, for example, foster greater access to educational material, especially in the developing world. Also, the administrations’ policy could acknowledge and address harms that digital locks could do to access to works. Mandating a blanket ban on their circumvention not only prevents access to copyrighted works, but also prevents lawful uses of copyrighted works and prevents access to works in the public domain. In view of these harms, the administration should consider ways to reform U.S. law instead of forcing the rest of the world to adopt similar provisions.