Duration is included in the Park Index---which can measure.

Lesser39 in constructing a new scoring system to reflect patent protection in the post-TRIPS era noted prior scores typically have in common the following components:

• protectable subject matter

• convention membership

• enforcement

• administration

• duration of protection

Harmonization under TRIPS simplifies some inputs into the index. For example, TRIPS40 sets the duration of patent protection at twenty years from first application so that an indication of TRIPS compliance by a country captures the duration factor as well as serving as a proxy for protectable subject matter. However, as countries have the option of protecting plants with patents or an ‘effective sui generis system,’ or both,41 it is important to identify the choice made.

Most countries are opting for Plant Breeders’ Rights rather than patents for plants for which membership in UPOV, the international convention, is a strong indicator if not actually required. India for example has a Protection of Plant Varieties and Farmers’ Rights Act of 200142 but is not a member of UPOV.

Additional and more current information on enforcement issues was needed so a practitioners survey was developed. The survey was sent to patent attorneys and licensing executives of biotechnology firms in the U.S. and Europe following an extensive period of instrument development and in-person interviews. Public sector licensing officers were contacted as well. In total, seventeen surveys and interviews were distributed with a response rate of fifty-nine percent. Biotechnology firms (pharmaceutical and agricultural) are an appropriate response group because the importance of IPR protection to that sector means a high level of awareness of technology transfer issues. The survey results emphasized how important a factor the enforceability of IP statutes is in a country. Slowness of a national court system, poor standing of a foreign plaintiff, lack of technical competence, or inability to enforce a judgment once made were all reasons to downgrade the effectiveness of a national system.

Applying factor analysis to generate weights for a four component model indicated that the PCT component was redundant in the sense that it added little to the explained variance (up twenty percentage points and giving a weighting of nearly one (.997)).70 This means that for the 142 PCT members – accounting for nearly all countries in the current data set – the index is increased by one point (.997). Dropping it leaves three components with, in this case, a three-factor model with an equamax rotation.71 This provides results which could be described in terms of the expected underlying relationships as follows:

Factor 1 (35%): Scope, weighing most heavily on UPOV and TRIPS compliance

Factor 2 (28%): Enforcement, weighing most heavily on the CPI Factor 3 (27%): Institution, patent office efficiency/ sophistication

The factor weights, which explain a total of ninety percent of the variance of the variables, are shown in Table 1.

The aggregate factor values (communality) are used to weigh the individual index components in generating the IP score; that is, the computed communality value from Table 1 is for each country analyzed multiplied by the data value for that country. The weights have the intuitive appeal that the near-greatest weight placed on the CPI, a proxy for the enforceability of IPR, which the survey respondents indicated as the most significant aspect of the effectiveness of patents at the national level.72 As significant is patent office efficiency/sophistication. Compared to the 2002 index, this component has become more significant, but since the variable used to measure it has changed no direct comparison can be made.73

The three factors can, alternatively, be viewed as differing approaches to strengthening patent systems. Countries may (1) join/implement international agreements (TRIPS, UPOV), (2) enhance the operation of their patent offices, or (3) improve enforcement by reducing corruption.74 The strongest rights of course are achievable only by being well established in all three dimensions. But not all countries presently have strong systems and hence have alternative paths available for strengthening them. For example, they may in a matter of degrees focus first directly on patent systems by say fully implementing TRIPS, or they may first tackle enforcement/corruption and then shift attention to the patent system in particular. Which approaches are pursued and the consequences are explored further in Section III.75

The resulting index values, referred to here as the ‘Cortez Patent Index,’ are presented in Table 2 for 148 countries in 2009. The country selection was determined largely by data availability, but some countries in non-equilibrium states (like Afghanistan) were dropped, as were very small and fledgling states like Vanuatu.