THE "AFTER- LIFE" OF PATENTS

COMMUNICATION FROM COLOMBIA – FOR DISCUSSION

1.  The balance of the system: The international system of intellectual property protection rests on a fundamental public policy balance, according to which innovators win, and also the societies that grant them win. Indeed, the system guarantees exclusive rights to the purchase, sale, production, export, import, use, etc., for the pioneers of a technology, but also ensures, in return, a process of "disclosure" of the invention for the subsequent benefit and learning of society, once the protection period has ended.

2.  The after-life of patent information. However, the international system does not elaborate on what happens to "disclosed information," and in general to all documentation related to a patent application, when the granted protection periods expire. Countries' implementation practices regarding the subsequent use of disclosed information from expired patents are not homogeneous and may not be conducive to a better international balance between users and producers . The "social benefit" component underlying the system has received very little attention at the multilateral level and has not been part of WTO discussions.

3.  A wave of "second-tier" innovations. In a context of technological acceleration, it becomes even more important to ensure that the technical information contained in expired patents is not lost, fragmented, or remains inaccessible, but rather is transformed into a useful resource for universities, research centres, small and medium-sized enterprises, and new innovators, especially in developing countries. The democratization of technical knowledge whose protection has expired can be a powerful tool for promoting a "second tier" of innovations, by narrowing technological gaps and stimulating locally adapted innovation processes.

4.  The need for a discussion at the WTO. Therefore, Colombia believes that joint work should take place in the run-up to MC14 regarding the best use of information disclosed for patents whose protection period has expired (a similar discussion could subsequently be held regarding copyrighted works that have entered the public domain). The possibility of collective decision-making at MC14 entails, from Colombia's perspective, an ideal and beneficial cooperative scenario for the WTO (without prejudice to the discussions on the balance that should exist during the period of intellectual property protection).

5.  Possible scenarios for multilateral action. Colombia is considering suggesting a Decision for MC14 under which:

·_        Members undertake to identify -and make accessible- the technical information disclosed and presented as part of the filing of a patent application, when the granted protection period expires, in a manner accessible to the general public, globally.

·_        Members 'crystallize' a series of good practices for promoting the use of such information.

·_        Members allow the training of Artificial Intelligence tools on such information.

·_        A repository (bank, catalogue) of disclosed information is created, with public and global access.

6.  Questionnaire. As a first step, the following questionnaire and discussion points are suggested for discussions among delegations at the regular session of the WTO Council for TRIPS.

Questionnaire for Members

1._        Basic technical questions:

·_        How can a citizen access the "disclosed information" and technical documents in a patent application once the protection period has ended?

·_        Must they request specific information (through a mechanism such as a "right to request information" or Freedom of Information), or can they freely browse information whose protection has expired?

·_        Must citizens register in advance?

·_        Do these practices for accessing disclosed information differ before and after the patent protection period has expired?

·_        In which languages can the information be consulted?

·_        Can artificial intelligence systems be "trained" with the information disclosed once patents have expired and entered the public domain?

2._        Public policy questions:

·_        What policies (understood as projects, strategies, campaigns, public policy, etc.) do you have for promoting patents that are already in the public domain and their respective technical patent documents? Have you applied these policies in the health technology sector?

·_        How does the work of the IP office—as the authority that administers the registry and knows when a patent enters the public domain—interface with the innovation, research, and development sectors?

·_        Do you have any policies (understood as projects, strategies, campaigns, public policy, etc.) that promote education in patent searches and/or raise awareness about public domain patents and patent technical documents? Are these topics included in your education system for relevant sectors, for example, in engineering, pharmacy, design, architecture, biology, biotechnology, chemistry, etc.?

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