3.1 Patent or perish  (Page 4/5)

When one gets a patent they would usually have to apply and obey procedures (and pay the fees) required by eachof the countries' patent laws. Due to the difficulty of applying for patents in dozens of countries, many treaties have been created tomake the process more feasible. The first such recorded treaty came out of the Paris Convention of 1883, which simply established that allthe countries that were part of the Paris Convention would accept the filing date of a patent originating in any one country. However, thisstill left the problem of going through the procedures of each country. The Patent Cooperation Treaty (PCT) attempted to streamlinevarious national procedures into a single national application process (Figure 4) through the World International Property Organization(WIPO).[20] This system has eased this first issue substantially,though there is still a great deal of asymmetry in countries' patent law.

The second problem creates even more contention. How does the international community enforce patent rightsand laws? What‘body' should deal with mediating disputes? Should one country be able to affect another country's patent laws? How? Majorinternational disputes have put these questions into sharp focus. For example, a recent patent bill proposed in India would prevent theproduction of generic (cheaper copies of brand name products) alternatives to larger company drugs. This would pose a large problemfor many African countries because the bill would prevent Indian firms from selling anti-viral drugs. These integral drugs would be used tofight the AIDS virus, which continues to be a rampant problem in this area of the world. The new patent would drastically increase pricesand therefore affect the treatment of millions of people infected with HIV in Africa.[22]Should African countries have a say in Indian patent law? What kind of judicial body should deal with the dispute?The Hague Conference on Private International suggested judicial solutions, but none have yet to be satisfactorily initiated.

Ultimately, international relations and patents now rest in any uneasy partnership of treaties that deal with increasingnumbers of international patenting.

Are ideas patentable?

The constitution states that "inventions" can be patented to protect the inventor's right to make a profit over his orher discovery. Mere ideas that do not have any concrete commercial function cannot be patented. However, in modern science, including thefield of nanotechnology, the line between an invention and an idea has become blurred. For example, in the field of genetic research, certaingenes have been patented by researchers. In some cases, researchers have identified both the sequence and the specific function of a gene,which they are trying to patent. However, if a researcher merely discovers a novel gene without knowing the possible commercial uses ofit, will the gene still be patentable? It is relatively easy to discover a multitude of novel genes; however it is quite difficult toestablish a commercial use for it. Hence, this issue is highly controversial and parallels the problems in the "patentability ofideas." An idea, like a gene, is very easy to create. While some researchers can supplant an idea with a concrete commercial purpose intoday's world, others simply "discover" the idea. To come up with an idea, just like identifying a gene, is relatively easy, whereas todefine a tangible function for the idea/gene is considerably difficult. For example, any average Joe can create an idea for afuturistic hover car but it would take a large research team and a couple "Albert Einsteins" to make one. Thus, where can we draw theline when it comes to this issue? Are all genes patentable even if a researcher can not demonstrate its use? Similarly, are all ideaspatentable even if an inventor can not physically demonstrate its use? Will the patenting of ideas and genes monetarily hinder research thatwill help establish their specific commercial function?[24] All ofthese questions demonstrate the inherent problems between modern scientific research and patents.[25]This crisis must be sorted out for research to truly continue. As a result, the UnitedStates government and the USPTO are still trying to work with scientists and researchers to resolve this problem in the case ofgenetic research. Currently, this problem, however, has yet to be solved and there is still great deliberation about this in both thescientific community and the government.[26]