Commercial High Technology Innovations Face Uncertain Future Amid Emerging ‘BRICS’ Compulsory Licensing and IT Interoperability Frameworks©

During the past decade the federal governments of emerging market ‘BRICS’ (Brazil, Russia, India, China, South Africa) nations have determined that the shortest path to an industrialized and innovative economy is via the institutional conversion of privately conceived, developed and commercialized intellectual property-rich life science, clean energy, and information and communication technologies into virtually free-of-charge universally accessible national ‘public interest’ assets. In an effort to ensure that their domestic agendas gain currency at the international level they have steadily proceeded to incorporate them within the work agendas of several of standing committees of the World Intellectual Property Organization (WIPO), a specialized United Nations agency that, along with the World Trade Organization (WTO), anchors the current international intellectual property system. The two ‘BRICS’ nation regulatory instruments of choice have included: 1) broadly defined compulsory licenses for healthcare and clean energy technologies; and 2) government procurement rules expressing direct and/or indirect preferences for patent- and/or royalty-free ‘SMART’ technologies embedded in ‘open’ national healthcare, energy, and information and communication technology standards. Such regulatory frameworks, unfortunately, have come at the expense of the innovation and investment communities of OECD member nations, inasmuch as they have raised foreign legal and economic risks and uncertainties beyond the already high levels historically associated with domestic capital-intensive technology development, commercialization and market behavior. Despite the burdens they engender, companies and investors may nevertheless avail themselves of certain public international law remedies and private initiatives capable of mitigating the effects of these regulatory and policy risks on company financial performance. This paper was originally informed by the author’s observations and participation in connection with the 2008-2010 proceedings of the WIPO Standing Committee on the Law of Patents. It will be expanded to reflect new updated information, including the author’s ongoing involvement with such intergovernmental body, until the time it is formally published and released by the San Diego International Law Journal