Protect Technological Dissemination
July 23, 2003
Dear Colleague:
I would like to draw your attention to important and little debated
provisions in the Singapore Free Trade Agreement (FTA) that deal with patent
rights. A key provision in the Singapore FTA agreement reads as follows:
(a) to remedy a practice determined after judicial or
administrative process to be anticompetitive under the competition laws of
the Party;
(b) in the case of public non-commercial use or in the
case of a national emergency or other circumstances of extreme urgency,
provided that:
(i) such use is limited to use by the government or third
parties authorized by the government;
(ii) the patent owner is provided with reasonable and entire
compensation for such use and manufacture; and,
(iii) Parties shall not require the patent owner to transfer
undisclosed information or technical "know how" related to a patented
invention that has been subjected to involuntary use authorization.
The US government's compulsory licensing authority would be limited under
the Singapore FTA to only three cases -- violations of competition laws,
public non-commercial use, or national emergencies. This provision
overturns at least two current US laws, while severely limiting what the US
can do in the future to address emerging patent problems.
The US currently has two technology-specific compulsory licensing statutes
-- one under the US Clean Air Act (42 USC Section 7608: Air Pollution
Prevention and Control Mandatory licensing), and one concerning civilian
atomic energy (42 USC Section 2183). Both laws are intended to make the
most modern and efficient technologies available to automobile manufactures
and nuclear power plant operators. Both programs will be illegal under the
Singapore FTA.
The Clean Air Act's compulsory licensing provision offers an example of the
value lost under the Singapore FTA. The Act requires that some areas with
poor air quality use cleaner reformulated gasoline. In recent years a motor
fuels company called UNOCAL has been engaged a bitter dispute over its
aggressive licensing of a patented clean fuel technology used to blend
reformulated gas. UNOCAL's patent practices cost consumers in some states
more than 5¢ a gallon at the pump. If we were considering a 5¢ a gallon gas
tax, the Singapore FTA would be dead on arrival in this House. But if the
Singapore FTA passes, Congress would lose a useful tool that could be used
to make clean air technologies available to US consumers at affordable
prices.
The new challenges facing our nation may give rise to new needs for
specialized compulsory licensing laws. The United States may have to
consider compulsory licensing in cases where broad patents create barriers
to medical research and development. The European Union recently adopted a
mandatory compulsory licensing program for patents on genetically modified
crops, where unlimited patents would stifle innovation. There are growing
concerns over opportunistic and harmful activities by patent owners in such
diverse areas as Internet protocols and clean fuel standards, and one remedy
may be greater use of compulsory licensing. Finally, the compensation rules
for emergency or non-commercial use contained in the Singapore agreement
will tie the US to the highest standards for compensation, deterring
government action necessary to address future emergencies, such as those
relating to Anthrax, SARS or other potential threats.
The Singapore FTA hamstrings Congress' authority to promote the rapid market
penetration of useful new technologies for environmental protection and
electric power production. It also limits Congress' ability to ensure rapid
and flexible responses to challenges ranging from unforeseen computer
innovations to emerging public health threats.
We should reject the Singapore FTA and develop an agreement that preserves
Congress' authority to encourage the quick, effective, and fair
dissemination of technologies with broad public purposes.
Sincerely,
Oppose the Singapore FTA
6. Neither Party shall permit the use [10] of the subject matter of a
patent without the authorization of the right holder except in the following
circumstances:
In a nutshell, this limits Congress' ability to enact "compulsory licensing"
statutes which require that the owners of patented technology with potential
for public good make their technology available to the market at reasonable
prices. The result of compulsory licensing laws in the US and worldwide has
not been government appropriation of patent rights, but the encouragement of
reasonable and timely agreements for the voluntary license of promising
patented technologies.
/s/
SHERROD BROWN
Member of Congress
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