IP in Arsenal: Part 3
? Rahul Dutta | December 16, 2022 | 13th Issue
The notion for human rights builds on our shared humanity.??These rights are not derived from citizenship of any country, but are presumed to be claims or entitlements of every human being?~ Amartya Sen
Since we published the IP in Arsenal: Part 2, three current events attracted our attention. First,?the G 20 summit was held in Bali, Indonesia in November 2022 . The theme of the Bali Summit was ‘Recover Together, Recover Stronger’. Did the world actually fight together against the Covid-19 pandemic? If the countries did not fight together, how can they recover together to recover stronger???
From Indonesia the?G20 Presidency baton was taken by India . Under the leadership of our Prime Minister,?Narendra D. Modi, India the theme ‘One World, One Family, One Future’. The them is literally the English translation of?Maha Upnishad shloka , is as following:
This is mine, that is his, say the small minded,
The wise believe that the entire world is a family.
The G20 member States account for around?85 percent of global GDP,?75 percent of global trade, and 65 percent of the world’s population. The G20 is an apex forum for international economic cooperation. Poverty is the worst curse; in this background, the international economic cooperation’s inclusive economic agenda appears to be promising.
The second event took place in the US where the former President Donald Trump was quoted as saying ‘scrap the US Constitution [..] because there were allegations of massive fraud in the 2020 US presidential election. The statement was widely covered by the world media including that of India where it was reported in the Times of India on December 6, 2022:
The US led by its President is the world’s undisputed Super Power.The US democratic setup is considered as the best in the world owing to the robust US Constitution. The constitution also has the provision for the President. In the capacity of the US President, Donald Trump?withdrew from the Paris Climate Change Agreement ?in 2017. In a democratic setup, electing a country leader for holding the Position of the President of the US is entirely dependent on the votes of the US population.However, the most powerful person, the US President holds the power to influence the lives of the people across the globe. Despite being in a commanding position of global leadership actions like withdrawal from the Paris Agreement on Climate Change and attempting to weaken the World Trade Organization show a lack of vision for issues of global concern.
The third event, was the outburst of the United Nations Secretary-General, Antonio Guterres on the stage of ongoing COP15 Conference in Montreal, Canada. The objective of the COP15 is setting out a plan to tackle global biodiversity loss over the next decade and beyond. In 2021 globally 37.12 billion tonnes of carbon dioxide was released in the atmosphere. The global manufacturing hub China was the biggest contributor of carbon dioxide emissions with 11.47 billion tonnes. Despite outsourcing manufacturing to the third world, with 5.01 billion tonnes carbon dioxide emission, the US was the second largest contributor.
It is obvious that powerful US TNCs have the largest contribution in it. The?UN Secretary-Generalslammed multinational corporations ?for?turning the world's ecosystems into "playthings of profit?and warned failure to correct course would lead to catastrophic results. [..]With our bottomless appetite for unchecked and unequal economic growth, humanity has become a weapon of mass extinction.?[..]We are treating nature like a toilet.[..]?And ultimately, we are committing suicide by proxy.A short clip of the UN Secretary-General speech is as follows:
It is said that diplomacy is an art of hiding the ugly truth with fancy words. The division of the mother earth into the self centred sovereigns who committed sins against the mother earth and have remained diplomatic at the international forums with the fancy slogans like the one used in the recently held G 20 in Indonesia with slogan,?Recover Together, Recover Stronger. This ulterior motive is also reflected in ‘America First’ slogan used for influencing voters in its favour but simultaneously losing out on the global leadership.?
Dominance and Monopoly
The ongoing war between Russia and Ukraine is an example of asserting dominance over the world.?
The amalgamation of fifteen Republics into the one union, USSR, on December 30, 1922. It was the time of communism wherein all property vested with the State and all individuals were treated equally. It led to the creation of the world’s largest country with the largest land mass. Gradually, USSR became the other superpower.
The World Wars established the dominion of the US as the world’s superpower. The cold war between the US and the USSR resulted in alignment of the countries behind these two super powers. It was difficult for the small third world countries to remain neutral without patronage of either of these two Super powers. The bigger the number of patronaged countries behind a super power the more its dominance.
Needless to mention, the objective of dominance in the society of countries that were?de jure?equal sovereign powers. The freedom of people from past form of governance into the sovereign republics could not establish a society of countries where the countries were treated at par and as equals.?
“The burden” which was named as the?era of stagnation?forced then USSR President/General Secretary,?Mikhail Gorbachev , to declare disintegration of the USSR after 69 years on December 26, 1991. The disintegration gave birth to fifteen Republics; changing the geopolitical structure and bringing the US at the doorstep of Russia. Indeed, it did not go down well with the Russian leaders.
The mighty Russia seems to be aspiring to repeat the previous century unification, this time by force, like by waging a war with Ukraine. The countries having interest in an independent Ukraine are encouraging Ukraine to give a befitting reply militarily by providing arsenals and lips service but no one is coming forward to fight shoulder-to-shoulder with Ukraine. If Russia wins, the other disintegrated republics of the yesteryears USSR would be under immense pressure to reunite with Russia without resistance. Else, it would weaken the position of Russia as a super power; and God forbid, this may tigger a bigger war against Russia.
The last decade of the previous century was the decade of economic turmoil. The geopolitical setup brought forth a third force challenging the dominance of the two world super powers. China, under the leadership of?Deng Xiaoping , opened her economy for the world in the decade of 1970s. China aspired to become the world’s manufacturing hub, and achieved the target as depicted in the figure below:
The rise of China and decline of disintegrated Russia led the US to assert its dominance over China to maintain her hegemony as the world’s only super power.?
In this one upmanship between nations to be the biggest bully, two points are apparent. First, when the ego of the supreme leader of a country overshadows the will of the people, the country leading to citizen welfare being relegated to the bottom of the table. Secondly, it is neither public nor national interest but the leadership that initiates the act of war.?
It cannot be a coincidence that the top leadership in China and Russia cleared the legal hurdles to remain in power for indefinite period. In 2018, China passed a constitutional amendment thereby?the two-terms limit on Presidency was abolished . Seventy years old?Russian President Vladimir Putin passed law in 2021 to remain in power till 2036 . The US counterpart of China and Russia Presidents, Donald Trump tried every trick to remain in?power for sixteen more years ?(5 terms in a row). The absolute power for indefinite period cannot be public will especially in the age at which a common man retires. The law makes the public to retire after a given age but does not apply on the law makers who are but mere representatives of the public. Law is used as a weapon to differentiate between the public and their masters. The world cannot be safe where the tallest leaders of the super powers aspire to remain in power to serve selfish interests.
The?Arms Trade Treaty (ATT) ?came into existence in 2014 under the aegis of the UN.The?module 5 ?of the ATT prohibits transfer of,or illicit trafficking in, conventional arms. The?Sustainable Development Goal (SDG) indicator 16.4.2 includes the need to reduce illicit arms flow. The access to arsenals with the illicit groups like ISIS makes a mockery of laws and international instruments. The following graph shows the weapons provided to ISIS by different countries:
In the world of democratic republics ultimately people hold the power. Whatever be the reason given by the countries like depicted in the picture above, no interest or logic can justify equipping the illegitimate organizations. It is criminal on part of the sovereign powers!
The assertion of fear and force by the super powers to dominate the other countries to ‘win’ their resources and get their interests served is diplomatically known as dominance. The dominance changes into monopoly when powerful MNCs assert power over the markets. Markets have no presence without a society comprising of people.
Sovereigns’ Market
The complex web of allies and foes, patronage of super powers, national and international laws, and above all market wherein the buyers are Sovereign powers and the sellers are powerful MNCs for whom their respective countries play the role of sales agents, form arms and ammunition market.?The US Supreme Court in?Diamond v. Chakrabarty, held that Congress intent in the 1952 Patent Act regarding the patentable subject matter included?anything under the sun that is made by man.The TRIPS Agreement opens the door of all technologies for patenting. However, the Article 7 of the TRIPS Agreement defines the objective of the Agreement in the following wording:
The protection and enforcement of intellectual property rights should contribute to the promotion of technological innovation and to the transfer and dissemination of technology, to the mutual advantage of producers and users of technological knowledge and?in a manner conducive to social and economic welfare, and to a balance of rights and obligations.
The inventions harmful or life threatening cannot be classified as conducive to social and economic welfare. For this reason the national laws of welfare centric countries like India do not provide patent for the inventions cause serious prejudice to human, animal or plant life or health or to the environment.?This restriction is in harmony with the TRIPS Agreement that in Article 8 describe the principle of the TRIPS in the following wordings:
Members may, in formulating or amending their laws and regulations, adopt measures necessary toprotect public health and nutrition, and to promote the public interest in sectors of vital importance to their socio-economic and technological development,?provided that such measures are consistent with the provisions of this Agreement.
Though the TRIPS Agreement signatories are bound to follow both the TRIPS and their national laws, the space, in principle, provided by the TRIPS to safeguard life and environment is optional to be inserted into the national patent laws. The patent laws are binding for the Sovereigns too.
The legitimate defence arsenals market is limited to between the countries. Both the buyers and the sellers in the defence arsenals market constitute a very small number. The non-uniformity in the patent codes in the national laws further restricts the defence technology transfer. The fluid geopolitical environment further dilutes the assurance for securing the repair, parts, ammunition, and technical knowhow in the time of need. With time, the conventional weaponry is giving way to smart weaponry. The smart weaponry carry more embedded intellectual property components. The time of buying a tech-weaponry and through reverse engineering stealing its technology is getting competitive. The legal means, like patents, and illegal means, like cyber-attackers, either make the reverse-engineering redundant or easier. The complex technology is difficult to decipher especially when software connects the parts of the weapon. On the legal side, national law is the creation of the Sovereign that rarely hold good against the might of the Sovereign for the cause of national interest. The trade in arsenal is actually an international ‘sellers’ market’ trade. The defence industry’s sellers’ market is oligopolist.This allows the sellers to dictate terms & conditions to the buyers for the arsenals they offer at a premium price. When the options are available for the buyers for a class of arsenal, the arsenal qualify to conventional class. In order to provide a dominant edge to the seller country over the others, the latest arsenals are not listed for sale in the international market. Therefore, the conventional arsenals are not enough to win wars in the contemporary world against the powerful countries having access to superior arsenals. It is for this reason, that one of the biggest arsenals importing countries like India and Saudi Arabia are working on becoming self-reliant in arsenals.?
India and Saudi Arabia have opened their domestic industry for defence manufacturing. However, the million dollar question is do these countries have technology to make world class arsenals?
The defence manufacturing industry did not exist for centuries in India; the requisite technology procurement will have to be either indigenously developed or has to be licensed-in. The knowledge rich human resource is Indian strength but the process is time consuming. This is also to remind that Indian Patent law does not provide patent to the defence technologies. Without technology protection, who will provide India defence manufacturing technology? At this juncture, two points should be considered. First, the technology transfer, if at all happens, would take place between two defence manufacturing industries, not with a Sovereign. Second, the tech equipped Indian industry would eventually enter into competition with the technology provider industry in the “limited” arsenals market.?
The Saudi Arabia patent law,?as per our information ?in Article 8, does provide protection to the defence industry inventions. However, the US top defence companies patent portfolio in the African continent is very insignificant.
The concentration of the developed world situated top defence manufacturing industries patent landscape show their monopoly on the global territory. The defence manufacturers and their country of origin together have a striking similarity for the top defence manufacturers. The pattern for securing patent rights in foreign countries is different between the US and China.The US companies file in a selected countries and Chinese companies do not file offshore at all. The following geographical maps for patent filings show the same:
Keeping in mind that in China the industry is mostly owned by the State. The spread of the Global Patent Portfolio at the best is limited to a few developed countries and confined mostly within China. This is a well thought out strategy of the Chinese. The two Chinese companies mentioned in the top ten defence manufacturers are China Electronics Technology Group Corp and Aviation Industry Corp of China. The patent portfolio of China Electronics Technology Group Corp extends to Canada, the US, Russia, Japan, UK and Germany. However, it is a less than 50% patent portfolio in China. The defence industry patents in the home country China are for invalidating same or similar foreign inventions??on priority or non-obviousness count. Another reason could be securing and holding the legal rights within the home country for the domestic industry.
God lives in details!
The business tycoon, late Mr. Dhirubhai Ambani of Reliance Industry use to say that?God lives in details. Patent datamining holds the answer to the million dollar question of the required technology procurement by the nascent defence manufacturing industry. With the help of the latest technology like Artificial Intelligence and simulation disclosed information can be processed to reach at a higher level for further R&D.
The assertion of disclosure of the defence manufacturing inventions in the patents is a strategic move gets substantiated by the following patent data visualizations:
The disclosure strategy has been used for the conventional arsenals. It is not an invention of China, even the US top defence manufacturers use the same strategy as shown below:
The entire patent portfolio of Northrop Aircraft Inc. is lying inactive. It is a rich knowledge resource for starting a R&D journey for a nascent defence industry.
We have discussed the conventional arsenals and their patent portfolios in this issue. We will be concluding the series in the next issue with the non-conventional superior arsenals.
To be continued….