Using technology transfer offices to foster technological development: A proposal based on a combination of articles 66.2 and 67 of the TRIPS agreement

• Author: Nefissa Chakroun
• Date: 01 July 2017
• Published date: 01 July 2017
• DOI: http://doi.org/10.1111/jwip.12077

DOI: 10.1111/jwip.12077

ORIGINAL ARTICLE

Using technology transfer offices to foster

technological development: A proposal based on

a combination of articles 66.2 and 67 of the

TRIPS agreement

Nefissa Chakroun

Law School, Queen Mary, London

University, Centre for Commercial Law

Studies, London, United Kingdom of Great

Britain and Northern Ireland

Correspondence

Nefissa Chakroun, Centre for Commercial

Law Studies, Queen Mary Law School,

67-69 Lincoln’s, London, WC2A 3JB, United

Kingdom of Great Britain and Northern

Ireland.

Email: n.chakroun@qmul.ac.uk

The paper is basedon the premise that setting up technology

transfer offices(TTOs) should be envisaged as part of a more

comprehensivestrategy for fostering technological develop-

ment. Its central argument is that developing countries will

not be in a position to fullybenefit from technology transfer if

they suffer a lack of organisationscapable of managing these

transactions. Invigorating article 66.2 mainly by shifting its

focus from incentivesto enterprises to technical cooperation

as set out by article 67 is recommended. Setting up an

innovation strategy with an adequate intellectual property

policy is the foundationfor the creation of a sound and viable

technological base. Structuring TTOs to play a key interme-

diary role between the producers and the receivers of the

technologyis fundamental. Establishinga funding mechanism

and staffing TTOs are crucial aspects of the technical

cooperation as much of the expertise needed in relation to

technology transfer is lacking in the developing countries.

KEYWORDS

innovation, intellectual property, technology transfer, TRIPS

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INTRODUCTION

Technology transfer is a vast subject open to discussion from several angles (WIPO, SCP/14/4 Rev). To date, debates

have mostly focused on providing flexibilities to allow developing countriesto benefit from technologies generated by

the developed world (Carvalho, 2011). From an economic perspective, authors have investigated the extent to which

© 2017 The Authors. The Journal of World Intellectual Property © 2017 John Wiley & Sons Ltd

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the mechanism of transfer can affect the recipient of the technology. Specialists have shown that the absorptive

capacity of an economy depends on its degree of development and that the mechanism of transfer has to be rightly

adapted to this capacity (Hansen, 1980). Other works have stressed the need for a code of conduct for the transfer of

technology to facilitate these transactions (Blakeney, 1989; Guadamuz, 2000).

This paper takes the view that while international regulations are needed to promote technology transfer; they

are not necessarily sufficient to build up a sound and viable technological base as stipulated by article 66.2 of the

Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS). The central argument of this work is that

developing countries will not be in a position to fully benefit from technology transfer if they suffer a lack of

organisations capable of managing these transactions.

The paper attempts to critically analyse the bargain on the basis of which developing and least developed

countries have agreed to adopt stronger intellectual property rights (IPRs) in exchange for the promise of increasing

their technological capacity.

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It advocates that an invigorated article 66.2 should be combined with article 67 of TRIPS,

which provides for technical and financial cooperation in favour of developing nations. This can be utilised for setting

up technology transfer offices (TTOs) as means of creating a sound and viable technological base for development

(Young, 2007). Hence, the primary aim of this work is to articulate proposals that bring more effectiveness to the

bargain, underpinning article 66.2. As a secondary aim, the paper attempts to show that such endeavour should be

achieved via a straight cooperation between the World Trade Organisation (WTO) and the World Intellectual

Property Organization (WIPO). In the exposition of the above argument, the paper proceeds in three parts. Part one

offers a critical analysis of article 66.2 by examining the reasons why the bargain underpinning the described exchange

is nothing but a ‘pipe dream’. Part two is an attempt to suggest ways of invigorating article 66.2 by combining it with

article 67 of TRIPS. Part three seeks to suggest minimum standards for a technical cooperation in relation to TTOs as

formal and essential mechanisms for operating technology transfer transactions.

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CREATING A SOUND AND VIABLE TECHNOLOGICAL BASIS OR A ‘PIPE

DREAM’?

This section carries out two levels of analysis. The first level analyses the wording of article 66.2. It highlights the

vagueness of its main concepts and obligations. The second level offers an assessment of its implementation. It

underscores the ineffectiveness of the incentives provided by developed countries for the enhancement of least

developed countries’technological capacity.

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The language of article 66.2

Any discussion related to article 66.2 of the TRIPS Agreement requires a full understanding of the term ‘technology’on

the one hand and ‘technology transfer’on the other. While the United Nations Conference on Trade and

Development (UNCTAD) defines the term ‘technology’as ‘systematic knowledge for the manufacture of a product,

for the application of a process or for rendering a service’,

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WIPO describes ‘transfer of technology’as ‘a series of

processes enabling and facilitating flows of skills, knowledge, ideas, know-how and technology among different

stakeholders such as universities and research institutions, international organizations, IGOs, NGOs, private sector

entities and individuals, as well as international technology transfer among countries’.

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From an economic point of

view, technology transfer is a mechanism through which someone intends to cede to someone else something they

have created, and teaching them how to perform it, in return for a fee. Hence, technology transfer is perceived as a

commercial transaction of purchase and sale of technological knowledge as it has the connotation of technological

trade (Blakeney, 1989; Coaracy, 1982).

As technology transfer is a cumulative process in continuous evolution, transfer of technology is supposed to be

perpetuating until the recipient of the technology acquires the technical capacity whereby he can evolve and keep up

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CHAKROUN