It's Rather Simple, Really: If China & India Desire Climate Change Technology Transfer, They Must ACTUALLY Respect Foreign Private IP Rights!

http://www.climatechangecorp.com/content.asp?ContentID=5830

From politics to business: Technology transfer to Asia

By Rajesh Chhabara

Climate Change Corp Climate News for Business

December 9, 2008

Climate change technology transfer needs to move from being a political football to becoming a business opportunity, but how?

As countries gather in Poznan to begin another round of negotiations to develop a successor agreement to the Kyoto Protocol, which expires in 2012, technology transfer remains one of their most complex challenges.

Developing nations, led by China and India, complain that rich countries have not kept to their part of the deal to transfer clean technologies as envisaged in the United Nations Framework Convention on Climate Change (UNFCCC), Kyoto Protocol and again emphasised in the Bali Roadmap.

The Bali Roadmap, which resulted from the last round of negotiations in Bali, Indonesia in December 2007, pledged action to remove obstacles to deployment, diffusion and transfer of affordable environmental technologies to developing countries including providing financial assistance. In Bali, India and China aggressively opposed binding emission targets on developing nations and instead asked for financial assistance for clean energy technologies.

Developing economies, including China and India, say they need access to environmentally sound technologies and funds to reduce their greenhouse gas emissions while continuing to develop.


India has repeatedly said it needs access to clean technologies especially in energy, manufacturing, transportation and agriculture. Speaking at the Asia-Europe Summit in Beijing in October, the Indian Prime Minister Manmohan Singh said: "Unfortunately, the international community has not lived up to its commitments for technology transfer and additional financing since the Rio conference.”

UNFCCC chief Yvo de Boer, who was in Beijing to attend a high level conference on climate change and technology transfer in November, agreed saying: “The developed world has not paid sufficient attention to technology transfer. International technology transfer will allow countries like China to take action which is not affordable to them at the moment.”

[HOW IS IT POSSIBLE THAT CHINA, WHICH, AS OF NOVEMBER 2008, HOLDS 27% OF THE WORLD'S FOREIGN CURRENCY RESERVES (APPROX. 1/3, IF YOU ALSO INCLUDE MAJORITY CHINESE NATIONS SUCH AS MACAU, HONG KONG, TAIWAN and SINGAPORE) IS UNABLE TO AFFORD TO TAKE ACTION??]

[See: List of Countries by Foreign Exchange Reserves, Wikipedia, at: http://en.wikipedia.org/wiki/List_of_countries_by_foreign_exchange_reserves ].

New Delhi-based Energy and Resources Institute estimates that India would need $5bn a year between 2012 and 2017, over and above its current investment plans, to make the transition to low carbon energy generation.

A report by the UNFCCC published in January revealed some interesting dimensions of technology transfer through the Clean Development Mechanism (CDM). CDM projects allow developed nations to offset their own greenhouse gas emissions by investing in emissions reduction projects in developing countries.

The report said only 39% of CDM projects - accounting for 64% of the annual emission reduction claims - claimed technology transfer. Technology transfer took place predominantly in destruction projects for HFC and N2O - two potent greenhouse gases. HFC and N2O destruction projects generate very high numbers of Carbon Emission Reductions (CERs) or carbon credits. In most of these cases, the buyer of CERs was also the supplier of technology and finance.

What [Do] India and China want?

But India and China want clean technologies for wider applications mainly in power generation, steel, cement, chemical, paper, aluminium and agriculture sectors which are identified as the most energy intensive industries.

While India and China have mastered bio-mass energy and hydro power respectively, they need access to other technologies such as those enabling methane trapping from coal mines, energy efficiency, energy distribution, fossil fuel alternatives, energy from landfill gas and reforestation.

China and India suffer from a heavy lack of energy efficiency in their industrial sectors. The International Iron and Steel Institute estimates that China could reduce 180 million tonnes of CO2 from the steel industry alone if its efficiency was brought on par with Japan.

According to a study by the UN Department of Economic and Social Affairs in 2004, China’s coal-fired power plants consumed 30% more coal than German plants, indicating huge potential for emission reduction by switching to cleaner technology.

Similarly, Asia can save hundreds of millions of tonnes of carbon in the transport sector, which remains amongst the most energy-inefficient in the world. An Asian Development Bank backed study on “energy efficiency and climate change considerations for on-road transport in Asia” in 2006 said that the global transport sector in 2002 accounted for 21% of the world's total energy consumption and is projected to generate over 60% of the increase in total energy use through to 2025.

The report projected that emerging Asian nations would provide much of the future growth in oil consumption – and greenhouse gas emissions - due to their strong economic and population growth. It concluded that increasing energy efficiency in the road-transportation sector is crucial to mitigating climate risks.

Lu Xuedu, deputy director general of China’s National Development Reform Commission, backs up the report, saying, “transferring more efficient technology to developing countries would achieve large scale emission reductions at lower cost.”

Several European countries currently own the latest clean technologies. Technology experts point to the Netherlands (bio-mass), Germany (energy efficiency households and N2O), Sweden and Norway (Hydro power), Italy and Spain (wastewater treatment) and France (nuclear and environment-related technologies) as leaders in their respective technologies.

Cutting edge technologies in wind power and solar power also remain concentrated in Europe and the US, and are largely owned by private companies. Japanese companies dominate technologies in industrial scale energy efficiency, HFC and transport projects.

Some of the largest players in clean technologies include Hydroenergy (hydro-power, Norway), Q-Cells (solar, Germany), Vestas (wind power, Denmark), GE (wind power, U.S.), Kawasaki Heavy Industries (waste heat generator, Japan), Vichem (HFC destruction, France), Uhde (N2O abatement, Germany) and Mitsubishi (clean coal technology, Japan).

N. Yuvaraj Dinesh Babu, chief executive of The Carbon Rating Agency- a company belonging to the Idea Carbon group, says that intellectual property rights (IPR) form the main barrier to technology transfer. Western companies are wary of sharing their technology and know-how with developing countries, he says, as they fear losing control of the market to copy cats: “The high cost of clean technologies is also prohibiting technology transfer.”

According to the UNFCCC report, technology which has been transferred through CDM projects so far, originated mostly (over 70%) from Japan, Germany, the US, France, and Great Britain. The report analysis found that the rate of technology transfer was higher where foreign partner participated in the project. Whilst joint ventures may be better placed to facilitate technology transfer, the report says, they would still require investment incentives and IPR protection guarantees by the host government.

Policy intervention in the CDM can also stimulate technology tranfer. China’s CDM policy states that projects should encourage transfer of environment technology though it does not make it mandatory. India’s policy is very vague on the requirement of technology transfer in CDM projects. Malaysia, on the other hand, has made it mandatory that a CDM project must involve import of environmentally sound technology.

As a result of these policies, whilst only 7.3% CDM projects in India mentioned transfer of technology by 2006, the figure for China was 55.1% and a staggering 83.3% for Malaysia. The main technologies transferred to Malaysia included biomass, biogas, substitution of coal with biomass in a cement manufacturing plant, methane capture from landfill gas, hydropower, agriculture (composting) and energy efficiency.

The Carbon Rating Agency's Babu says developing nations should adopt a three pronged strategy if they want access to clean technologies: they should set up a national level high-power organisation tasked with creating enabling environment for technology transfer, put in place a stronger IPR regime and find ways to finance projects including using local investors and international assistance.

India and China both have reformed their intellectual property rights regulations as required by their commitment to WTO but they are often criticised for lax enforcement.

Private joint ventures in large coal projects may also incur problems as most energy production is still in the hands of the state in India and China. In India, renewable energy– a current boom sector – is entirely in the private sector, and some reforms in the last few years have opened the conventional power sector for private investment.

Adaptation of clean technologies to local conditions is another area of concern. Babu suggests that the technology transfer should be planned in four phases: the host country should carry out a need assessment to identify technology needs. Then, adaptation aspects of the chosen technology should be worked out followed by a pilot project. Only after a successful pilot, the full scale deployment should take place.

China advocates the establishment of a Multilateral Technology Access Fund to finance technology transfer to developing countries. Xie Zhenhua, vice chairman of China National Development and Reform Commission says, “such a fund can cut down the cost of technology transfer to developing countries.”

He says that lack of access to green technologies at this stage can have serious implications as developing nations are building massive infrastructure to keep pace with industrialisation. Use of old technologies can only aggravate global warming.

China wants this fund, established by developed nations by contributing 0.5% of their GDP, to be used to enhance mitigation, adaptation, research and development in technology, and technology transfer.

However, in view of the global financial crisis, demand for funding may face resistance from developed nations in Poznan talks. “The greater emphasis will be on technology transfer,” says Ajay Mathur, director general, Bureau of Energy Efficiency who is a member of the Indian team for Poznan negotiations.

In the last few weeks, China and India both have reiterated that technology transfer at cheaper rates is crucial to their commitment to reduce greenhouse gas emissions without compromising on their development needs. International negotiators at Poznan are under pressure to produce a framework for technology transfer to developing countries in order to keep up the hopes of a final deal in Copenhagen by end-2009. Facts: Trends in technology transfer within Clean

Development Mechanism (CDM) projects

· Technology transfer is more common for larger CDM projects

· 39% projects (representing 64% estimated emission reductions) claim tech transfer

· Unilateral and small-scale projects involve less technology transfer

· Technology transfer is more common for projects that have foreign participants: almost half of projects with foreign participants claims tech transfer

· Host country can influence the extent of technology transfer involved in its CDM projects: The DNA approval criteria of these countries include provision for technology transfer

· 56% of the projects that involve technology transfer claim both equipment and knowledge transfers

· 32% of the projects claim transfer of equipment only

· 11% claim transfer of knowledge only

Source: Technology Transfer in CDM Study by UNFCCC, Dec 2007

Ongoing IP Opportunism in Brazil & India May Trigger Foreign Storks' (Patent Holders') Refusal to Save the Wolf!

http://www.miscositas.com/fontaine1
http://www.miscositas.com/fables1.html

The wolf was choking on a bone and asked the stork to help him. The stork used his long beak to help him get the bone out of his throat, but the ungrateful wolf threatened to eat him in return for his good deed.

Story text and images © Lori Langer de Ramírez

The word fable derives from the Latin word fabula, which originally meant about the same as the Greek mythos; like mythos, it came to mean a fictitious or untrue story. Myths, in contrast, are not presented as fictitious or untrue. Fables, like some myths, feature personified animals or natural objects as characters. Unlike myths, however, fables almost always end with an explicit moral message, and this highlights the characteristic feature of fables - namely, that they are instructive tales that teach morals about human social behavior. Myths, by contrast, tend to lack this directly didactic aspect, and the sacred narratives that they embody are often hard to translate into direct prescriptions for action in everyday human terms.

http://www.artbrokerage.com/art/chagall/chagall_539.htm

Marc Chagall, "Fables La Fontaine Le Loup et La Cicogne"Limited Edition PrintLithograph 1927

















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http://www.qworkbooks.com/AZ/AZsamples/AZ_RAS_RC_3.pdf
http://www.your-poetry.com/modules.php?name=pd&file=poetry&pdid=21957

“THE WOLF AND THE STORK”

By French Poet

Jean De La Fontaine

-------------

The wolves are prone to play the glutton.
One, at a certain feast, ‘tis said,
So stuffed himself with lamb and mutton,
He seemed but little short of dead.

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Deep in his throat a bone stuck fast.
Well for this wolf, who could not speak,

-------------

That soon a stork quite near him passed.
By signs invited, with her beak
The bone she drew

-----------

With slight ado,
And for this skillful surgery
Demanded, modestly, her fee.
“Your fee!” replied the wolf,
In accents rather gruff;

-----------

“And is it not enough
Your neck is safe from such a gulf?
Go, for a wretch ingrate,
Nor tempt again your fate!”

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[FOR A MODERN & ESPECIALLY RELEVANT APPLICATION OF THIS LA FONTAINE FABLE, CONSIDERING BRAZIL'S ONGOING 'IP OPPORTUNISM', See: Slavi Pachovski and Lawrence Kogan, The Wolf and the Stork: How Brazil's Breaking of Drug Patents Threatens Global Trade and Public Health, ITSSD (June 14, 2005), at: http://www.itssd.org/White%20Papers/TheWolf_and_theStork-Brazil_snon-patentabilitylaw.pdf ].

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http://timesofindia.indiatimes.com/HC_revokes_Roches_patent/rssarticleshow/3798630.cms

HC revokes Roche's patent


Rupali Mukherjee


The Times of India


December 6, 2008

NEW DELHI: In a first-ever instance of a patent being revoked after being granted, the Madras High Court has set aside pharma major Roche's patent on a key drug, valganciclovir on procedural grounds. A patent on valganciclovirwas granted to the company in June 2007.

Valganciclovir is a treatment for cytomegalovirus (CMV), a virus that oftenattacks the retina of people with lower immune systems, such as AIDS patients. In addition, it is crucial for prevention of CMV infection inpatients who have received organ transplant.

The court has cited the failure of the Indian patent office to comply with the patent law and remanded the matter back to the Patent Controller.

The judgment was delivered on a petition filed by civil society groups IndianNetwork for People Living with HIV/AIDS (INP+) and Tamil Nadu Networking People with HIV/AIDS (TNNP+), who had challenged the Indian Patent Offices decision to grant a patent without hearing the pre-grant opposition filed by them.

In July 2006, INP+ and TNNP+ had filed a pre-grant opposition before theChennai Patent Office objecting to the grant of patent to Roche andrequested for a hearing. Under the Indian law, if an opponent requests a hearing, the patent office is required to provide the opponent an opportunity to be heard. However, this was not done.

At Roche's maximum retail price of over Rs 1000 per tablet, a patient whohas to take a treatment course of approximately four months for CMVretinitis in India would have to pay over Rs 2.5 lakh. This puts thetreatment unafforable for those who need them.

The grant of patent to Roche allowed it to continue charging exorbitant prices and also prevented the entry of generic versions of valganciclovir.

However, in May this year, Cipla launched the generic valganciclovir in thedomestic market at a price of Rs 245 for a tablet. Under law, a generic producer can challenge the patent by taking the risk of launching a generic version after obtaining marketing approval. In response, Roche filed an infringement suit against Cipla in the Bombay High Court in September seeking an injunction, which is till pending.

The dispute between the companies hinges on "patentability'' of the drug. The validity of the patent is in question under the country's patent laws that do not allow patents on new forms of old drugs, also known as Section 3(d). Experts pointed out that valganciclovir is a hydrochloride salt of an olddrug `ganciclovir' and hence not patentable.

The generic producers of the drug, Matrix, Ranbaxy and Cipla have also filed post grant oppositions.

While the opportunity to oppose the application is only granted to the patient groups, it is likely that Roche's injunction proceedings against Cipla for launching the generic version will no longer have a legal basis as the patent is now revoked.

Whether the Mumbai court will keep the infringement proceedings pending remains to be seen, legal experts say.

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http://www.ip-watch.org/weblog/index.php?p=1344

Brazilian Draft Law Would Curb Expanded Patents On Pharmaceuticals

By Claudia Jurberg

Intellectual Property Watch

December 2, 2008

RIO DE JANEIRO - Brazil’s lower house of Congress held a recent hearing to discuss proposed changes to rules on pharmaceutical patents that would limit patents on two types of pharmaceuticals.


Under proposed legislation, patent rights would not be permitted in two modalities: second-use drugs and polymorphs.

A second-use drug patent refers to when another function is discovered in a drug for which the pharmaceutical industry holds the patent on a substance. The situation could be explained as a positive side effect.

In the case of polymorph patents, the substance is made with the same material and shows the same effects as the medicines protected by a patent, according to legislation author Deputy Paulo Teixeira. It is like a substance with the same crystalline forms.

The authors of the legislation are congressional deputies Teixeira and Dr. Rosinha (Florisvaldo Fier) of the Workers Party, the same political party as the Brazilian president.

According to Luis Carlos Wanderley Lima, coordinator of intellectual property at the Brazilian National Health Surveillance Agency (Anvisa), both cases lack novelty - one of the principles required to issue a patent.

Wanderley Lima said that applying patents to polymorphs has been identified as a pharmaceutical industry strategy to expand patents and gain a monopoly on some substances important to the commercial market. In his view, it could be valid to developed countries but it could prejudice developing countries such as Brazil because it causes a delay of generic drugs’ entrance in the market.

The president of the Brazil Patent Office (INPI), Jorge Avila, said during the 31 October hearing that in his view “there is space for an [positive] environment for business initiatives in the country while at the same time it is possible to promote the strengthening of production of generics and encourage Brazilian research in the pharmaceutical area.”

Researcher Claudia Chamas, representative of the Health Ministry, said “there is a profound difference in understanding between the INPI’s guidelines and the opinion of the deputies.” According to her, the project of the deputies is better, because it incentivises the innovation and curb the excesses.

In general, the acceptance of pharmaceutical patents in Brazil should be very carefully done, said Wanderley Lima, as patents can limit the access to drugs.

The attention to protection of drug patents is significant because it could have implications for public health. Access to medications by governments and consumers can be restricted to a single producer who monopolises production and could choose to charge high prices, thereby causing a problem to the public health system, according to Wanderly Lima.

[HOWEVER, THE MERE ACT OF DEVELOPING AN INNOVATIVE LANDMARK DRUG FOR WHICH A PATENT HAS BEEN GRANTED IN A DEVELOPED COUNTRY OR AT THE WIPO, DOES NOT, BY ITSELF, WITHOUT MORE, INDICATE THAT ILLEGAL MONOPOLISTIC PRACTICES HAVE OCCURRED, ARE OCCURRING OR WILL OCCUR IN THE FUTURE. THESE BRAZILIAN BUREAUCRATS AND LEGISLATORS ARE TRYING TO CREATE A LEGAL FICTION - A FALSE PRESUMPTION OF ILLEGALITY (MONOPOLISTIC PRACTICES) - i.e., THAT MARKET LEADERS IN THE PHARMACEUTICAL INDUSTRY HOLDING VALUABLE DRUG PATENTS & TRADE SECRET KNOW-HOW ARE, BY VIRTUE OF THEIR OWNERSHIP OF SUCH RIGHTS, EXPLOITING OR PLANNING TO EXPLOIT SOCIETY FOR PECUNIARY GAIN. THESE PIECES OF LEGISLATION ARE NOTHING MORE THAN A COORDINATED EFFORT AT LEGITIMIZING THE PLANNED EXPROPRIATION OF FOREIGN DRUG PATENTS!!]

Every nation has the right to define patent concession criteria for pharmaceutical companies, he said, adding that public health can be adversely affected by broad application of patent rights, such as in the case of second-use drugs.

[WHILE THIS IS TRUE, IT IS ANOTHER MATTER ENTIRELY TO REDEFINE THE INTERNATIONAL STANDARD FOR 'NOVELTY' AS AN ELEMENT OF 'PATENTABILITY'. THIS IS NOT SANCTIONED BY THE WTO TRIPS AGREEMENT, NOTWITHSTANDING WHAT THE LEFT-LEANING BRAZILIAN, U.S., & EUROPEAN 'INTELLECTUALS' SAY.]

According to him, “It is important that the INPI discusses the organisational guidelines and the examination of patents, but it is fundamental that they do not forget the interests of society.”

This subject should be resolved quickly by an Intellectual Property Interministerial Group, Chamas said. For her, patents such as on second-use drugs and polymorphs do not have support in Brazilian law, which provides rights only for patents on products and processes with novelty, inventive activity and industrial application.

“These undue monopolies could cause an increase in medicine prices and bring obstacles to development assistance programmes and to the pharmaceutical industry in general,” Chamas told Intellectual Property Watch. “It is a barrier to free competition, plus an unjustified monopoly.”

Prior Informed Consent



A further discussion regarding patents is occurring between Anvisa and INPI on prior informed consent. For approval of the right of a drug patent in Brazil, both Anvisa and INPI give their opinion.

Anvisa has established stiff rules on obtaining this kind of privilege and the agency showed this position to INPI. The agency says it understands the importance of the patent system to pharmaceutical companies, but believes that this protection of patent could be given only to drugs that meet the basic requirements and not just for any kind of patent. The concern is that there are a lot of made-up situations that do not bring any benefit to the country and prejudice the public interest.

[ACTUALLY, THE GRANT OF A PATENT IS A RIGHT, NOT A PRIVILEGE, PROVIDED THE STATUTORY REQUIREMENTS ARE SATISFIED. BUT, THIS DOES NOT VEST GOVERNMENTS WITH THE UNFETTERED DISCRETION TO DEPART FROM LONG-ACCEPTED LEGAL PRINCIPLES TO EFFECTIVELY CONVERT WHAT IS INTERNATIONALLY RECOGNIZED AS A 'PRIVATE PROPERTY RIGHT' INTO A 'PUBLIC INTEREST' RIGHT, & CONSEQUENTLY, A GOVERNMENT PRIVILEGE].

On the other hand, there are many critics of prior informed consent, many arguing that the mechanism delays the patent processing system. For this reason, at the lower house of Congress there is proposed legislation from Deputy Rafael Guerra that would eliminate the prior informed consent mechanism realised by Anvisa. If the legislation were approved, the agency would no longer analyse all patent requirements.

[THE 'INFORMED CONSENT' REQUIREMENT, IF ADOPTED, WOULD EFFECTIVELY INJECT OTHER THAN LEGAL & ECONOMIC PATENTABILITY CRITERIA (i.e., HUMAN & SOCIAL RIGHTS THEORIES), INTO THE PATENT REVIEW PROCESS, & THUS, RESULT IN THE LOSS OF VALUABLE PRIVATE PROPERTY RIGHTS & THE 'EXACTING OF RENTS' FROM FOREIGN PATENT HOLDERS & BRAZILIAN PATENT APPLICANTS BY GREEDY BRAZILIAN GOVERNMENT BUREAUCRATS. AFTER ALL, AS NUMEROUS MEDIA REPORTS REFLECT, BRAZILIAN GOVERNMENT BUREAUCRATS & LEGISLATORS ARE NO STRANGERS TO CORRUPTION!!].

Wanderly Lima said that the Anvisa had created a special coordination with professionals to perform this task, and the period of analysis is about 120 days. After this period, if the patent is granted, the holder shall have the exclusive rights to exploit the object protected by the period of 20 years. Therefore, he said there is a need for a careful review because they are giving a monopoly, and must take into account that this implies a lack of competition and, consequently, the final price of the product to the public and for Health Ministry programs.

According to him, 1002 applications were sent for analysis by Anvisa from 2001 to 2007, and 752, or 68 percent, were approved. Around 30 percent stumbled on requirements before being granted permission, which he said proves the accuracy of the mechanism.

[THIS REASONING HAS NO VALIDITY SINCE IT IS A TAUTOLOGY - CIRCULAR REASONING - WHEREIN 'THE ENDS JUSTIFY THE MEANS' AND 'THE MEANS JUSTIFY THE ENDS'.]

About 5 percent of the applications were denied permission due to purely legal aspects, such as the lack of novelty or inventive activity. This shows that the prior informed consent process is aimed at granting the patent according to Brazilian law while preventing the suffering of society by undue restrictions on drugs, such as high prices.

If this initiative of the Deputy Guerra advances, it will change one of the most important articles of the patent system and weaken the Brazilian system, said Wanderley Lima. If approved, he added, it could cause a serious drop in the quality of the examination of pharmaceuticals patents, generating worrisome economic and social consequences to society.

Claudia Jurberg may be reached at info@ip-watch.ch.