Ignoring the Science : What We Know About Patents Suggests Dire Consequences from ACTA and the TPPA

This forthcoming chapter looks at what research into the operation of the IP system, and particularly IP enforcement, tells us about the issues facing research-based firms, focusing on the ‘science' side of IP, particularly patents, and using research, and information about domestic developments, to critique the approach taken in the most recent IP negotiations to affect the Asia-Pacific Region – namely, the Anti-Counterfeiting Trade Agreement (ACTA), concluded in late 2010, and the Trans-Pacific Partnership Agreement (TPPA), which at the time of writing is under negotiation. While much of the literature on patents in ACTA and the TPPA has focused on the (very important) impact on access to medicines, this chapter is concerned with the likely impact on the patent system more generally. We have grown used to hearing that the latest efforts at international IP standard-setting, the ACTA and proposals for IP in the TPPA, will have a deleterious impact on digital copyright law and on access to essential medicines. We have heard much less about the potential impact on the patent system as a whole – a much less sexy topic, no doubt, but in the long term, equally important. The patent research explored in this article suggests that both ACTA and the US' TPPA proposal are not likely to be helpful in addressing the most pressing issues in patent law today; they risk being positively counterproductive, and exporting to the world the US' own ‘patent crisis.' The thought of a flood of low quality patents issuing from patent offices throughout the Asia-Pacific, should give everyone – including the negotiators of these and future agreements – serious pause