This year NLO celebrates its 125th anniversary. Rather than taking this opportunity to reflect on our history, we much prefer to look ahead. We have therefore set out to investigate what the future may bring for our clients, and hence for ourselves, when it comes to protecting their innovations and intellectual property. Various technological, social and cultural developments confirm that this future could be very different from the past. This article touches on some of these developments, and also describes how we will go about in investigating the future of protected innovations.

In the early 1950s polio, perhaps besides a nuclear war, was the most fearsome threat to the American people. Annual polio epidemics were taking more and more lives, mostly those of children. The 1952 epidemic was the heaviest of all claiming almost 60,000 victims; 3000 people died eventually and more than 21,000 were paralysed for life.

In 1948 a large-scale investigation was performed to find out what was causing the polio virus. Activities were mainly funded by government money and donations from the people. Seven years later (1955) the spectacular outcomes of this investigation were communicated to the outside world: an effective vaccine had been developed to beat polio. Research team leader Jonas Salk was interviewed on television. "Who has the patent?", he was asked. For a while, Salk was thrown off balance. "Well, the people I suppose. There is no patent. Could you patent the sun?" he answered. Salk's superior smile at the interviewer clearly revealed how he felt about patents.

"A proven chilling effect on research"

In 1997 and 1998 patents for two human genes (BRCA1 and BRCA2) were granted to Myriad Genetics, a biotechnology company in Salt Lake City. These genes have a role in the development of e.g. breast cancer. These patents, and the way in which Myriad has been using them, are controversial and for many years they have been the subject of a legal battle. The Association for Molecular Pathology, one of the parties objecting to these patents, will describe their negative consequences in its plea before the U.S. Supreme Court, scheduled to take place on 15 April 2013: "The claims pre-empt any use of the genes for any purpose. This has serious and urgent consequences for patients today, who often cannot obtain information about their own genes and thus cannot make educated medical decisions about breast and ovarian cancer surveillance and treatment. Myriad has a monopoly on clinical testing of its genes in the U.S., dictating the type and terms of BRCA genetic testing. Myriad has given women false negative results, while also barring other laboratories from testing genes to verify the accuracy of Myriad's results. Although Myriad has not exercised its authority to stop all research, Myriad's claims have had a proven chilling effect on research, as laboratories are dissuaded from pursuing scientific work that requires using the patented genes." The question the Supreme Court needs to answer in this case is this: "Are human genes patentable?"

India vs. Big Pharma

Almost 60 years after Jonas Salk ridiculed the patenting of the polio vaccine ('Could you patent the sun?'), today the de U.S. Supreme Court will answer the question whether the building stones of human existence can actually be patented. Both examples show how strong technological, socio-economic and cultural circumstances, the zeitgeist if you like, determine the commercial approach and social acceptance of patented innovations and intellectual property.

Today many developments are taking place that could cause a turn in how we feel about protected innovations. Recently, the Indian Supreme Court refused to grant Novartis a patent for Gleevec, a most effective drug against leukaemia. The decision creates room for locally manufactured and much cheaper generic versions. Already last year, two Big Pharma representatives, Bayer and Pfizer, faced similar decisions by the Indian authorities.

Piracy as a compliment

Recently, Google published its open patent non-assertion pledge, a promise not to sue open source software (OSS) developers for using Google's patents that fall under this pledge, as long as Google too would not be taken to court. It is how Google attempts to break open the paralysing and costly patent battle in the technological world. Google said the following: "It is a response to recent developments in the patent marketplace, whereby companies that increasingly seek the benefits of OSS in their own businesses nonetheless launch attacks against open source products and platforms as it suits their fancy."

Against 4.4 million people who had paid HBO to watch the first episode of the 3rd season of the popular TV series Game of Thrones, within a day more than one million people were watching the same episode for free after downloading it illegally. HBO didn't seem to really mind, according to Michael Lombardo, one of its executives: "I probably shouldn't be saying this, but it is a compliment of sorts," Lombardo said. "The demand is there. And it certainly didn't negatively impact the DVD sales. [Piracy is] something that comes along with having a wildly successful show on a subscription network."

The questions we ask

Developments such as these have inspired Nederlandsch Octrooibureau to use its 125th anniversary to not only look back at its history, but to look ahead as well. In our anniversary year, we will study whether protected innovations have the future and, more importantly, how Nederlandsch Octrooibureau can give further shape to protection in the future. How can one protect the interests of Big Pharma, so far indispensable for the development of new drugs, if these interests collide with the moral obligation of the authorities of developing countries to also provide these drugs to their populations? How can one stop technology giants or patent trolls from collecting patents merely for defensive, strategic reasons thus frustrating young start-ups' innovations. How can one protect the creative and intellectual achievements of artists and writers in a time in which achievements can be copied and distributed almost for free, and therefore many believe these products should be available for nothing? How can companies in different sectors respond to these technological ethical and social changes of the protection of innovations? How can they adapt their business models, and how can they respond to the anti-IP mood that today exists among large consumer groups?

Thought leaders

We seek to find the answers to these and other questions and therefore, we will be organising interviews and roundtable discussions with thought leaders in this field. Participants are involved in the business community, science, the authorities and interest groups. Nederlandsch Octrooibureau will have an active role in these discussions. This year and mostly on our website, we will regularly report on our quest for protected innovations in the future. You are kindly invited to make a contribution and help us highlight our vision on this matter. In November this year, at the official anniversary ceremony, we will present the end results of this challenge.

We do not feel we are able to look ahead for another 60 years, the same period that went by between Salk's "Could you patent the sun?" and today's question "Are human genes patentable?". But it does meet our ambition to map future developments together with clients. We will leave no stone unturned in our jubilee year, and share with you the insights we gain in the nearest future.

Originally published in European IP Update, May 2013.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.