claessensiprsanddevelopment.ppt

7/28/2019 claessensiprsanddevelopment.ppt

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Intellectual Property Rights

Implications for Development

Fleur Claessens


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What is Intellectual Property?

books, CDs, video games, paintings,staplers, bags, fabrics, planes,food/drinks, pharmaceuticals, plantvarieties, computer chips, cars, music,broadcasts, sound recordings, etc

an IP right provide the right holderwith an exclusive right to stop others

..IP right holder may provide licenses

IP rights are territorial in nature


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Forms of Intellectual property

Rights

Patents

Trade Marks

Designs

Copyrights

Geographical Indications

Industrial Designs Trade Secrets

Utility Models

Traditional Knowledge (?)


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Patent requirements

New/novel

Inventive step/non-obviousness

(not obvious to someone skilled inthe art)

Industrial Applicability Patentable subject matter


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What is patentable?

Everything under the sun that is made

by man. Diamond v. Chakrabarty 1980US Supreme Court

Ideas/inventions are patentable


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Exclusions from patentability

Discoveries are not patentable:Einstein could not patent his celebrated law that E = mc^2;nor could Newton have patented the law of gravity. Suchdiscoveries are manifestations of . . . nature, free to all

men and reserved exclusively to none

Literary, dramatic, musical or artistic works

Schemes, rules, games, computer programs as such

Methods of medical treatment

Contrary to public policy and morality: Those which bypublication or exploitation might result in offensive,immoral or anti-social behavior. Current debate life

patents/GM Food

Plant and animal varieties (in EU not in US)


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How to obtain a patent?

Domestic patent/IP office: filing, obtain prioritydate

European patents: a bundle of patent rights at theEuropean patent office

International level: WIPO PCT

Application requirements: Description as how the invention works

Claim covering the scope of the legal monopolyclaimed by the patentee

Examination and publication


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Copyright

Copyrights protects the rights of authors of literary andartistic works

Copyright is in essential a negative right which preventsothers from making copies of the work of an author

No copyright in a pure idea/news/simpleworks/information itself

Expression/idea dichotomy

If sufficient selection, judgment and experience orlabour/skill and capital

copyright can be granted, even ina database (so not the content in the data base but the

compilation itself), in EU separate database right, not inthe US.

Moral rights versus economic rights


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Rationale behind IPRs

PatentsTo stimulate innovation/encourage investment the

inventor receives an exclusive right to his inventionin exchange for disclosure of the invention in sucha way that it allows replication, the inventorreceives a limited amount of time to recoup hisinvestment

TrademarksProtection of goodwill and reputation

CopyrightProtection of creativity


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Innovation: Methods and Factors

Innovation is the development and implementation of an improved

(incremental) or new (landmark) product or process with success in abusiness activity / society

Methods:

Formal innovation

Scientific method (evidence of efficacy and/or efficiency)

Marketing strategies (new utility, design, process)

Informal or Traditional

Experience/belief

intergenerational

individual or collective

Functional

Factors:

Culture, education, inventiveness/creativity, capital, enabling

environment, linkages, supplychain management, marketability,

etc.


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Why are IPRs important?

IPRs allow control over technology, signs

and creations

Original Purpose: to stimulate innovation

and creativity by compensating the

creator/innovator for their intellectual

efforts

Lately: incentive to investment / change in

market players

--big multinationals


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Contemporary Challenges in IPR negotiations...

GIs

1. Creation of a multilateral register for wines and spirits2. Extending the higher level of protection beyond wines and spirits

3. Linkage between GIs and the agriculture negotiationsclawback for terms in

common usage

Disclosure of Origin Measure

1. Legal consequences: Voluntary or not, administrative or patent ability

requirement (revoke or criminal sanction)

2. Linked to CBD concepts ABS and PIC

3. Linked to WIPO or WTO

Implementation of the WIPO Development Agenda

Enforcement (WTO US versus China Panel Report)

Ongoing norm setting activities / FTAs

Technology Transfer

Technical Assistance and Cooperation


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Why are IPRs controversial?

IPRs create semi-monopolies also covering goods that

might be essential to society (e.g. pharmaceuticalsand environmentally sound technologies) /raises

prices (higher than production costs) limit access to textbooks, educational material,

information impacts on reverse engineering and imitation exceptions are pushed to the limit/scope is widened:

extension of subject matter - - patentability of life / software; extension of term of protection -- 70 years of copyright protection; creation of new rights -- non original databases; over relaxation of granting of patents -- lack of adequate description; inclusion of IP in trade, investment and stand alone agreements; primacy of private rights of public rights


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Some facts

Swift pace of technological transformation technologyhas become important in all economic activities

International collaborations have led to theglobalization of all economic and technologicalactivities

Much more regulation!

3 countries concentrate around 60% of applications

5 countries account for above 80% of royalties and feesrecipients of which above 70% relates to intra-firm

payments


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The Public Interest

Promotion ofinnovation

Public health andaccess to medicines

Nutrition and Food

security Technology transfer Competition policy

Human rights

Development Fight against poverty Environmental

protection Education

Whenever there is a

conflict between human

rights and property rights,

the former must prevail

Abraham Lincoln


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Socio-economic development

Stages of development

Sophistication of their industrial base,including cultural creative industries

Coherence with related policies (nationalinnovation systems; industrial, trade,competition, FDI policies)

Sectoral policies: health, education,

infrastructure


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IPRs and Development an integrated model

LEVELS OFDEVELOPMENT

LOW LEVEL

INTERMEDIATELEVEL

HIGH LEVEL

INTELLECTUALPROPERTYRELEVANCELOW LEVEL

HIGH LEVELIMITATION APPLICATION INNOVATION

LEARNING CURVE


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Development IPR Solutions

WTO Doha (Development) Round

Doha Round Declaration 14 November 2001

Doha Declaration on TRIPS and Public Health

WIPO Development Agenda (adopted September 2007)

2004 Initiative by group of developing countries lead by Brazil

and Argentina / development component in WIPO as UN

agency Use of flexibilities

Transparency in technical assistance activities

Development aspect in all norm-setting activities


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Doha Ministerial Declaration

14/11/2001

implementation and interpretation of the TRIPS in amanner supportive of public health, by promoting both

access to existing medicines and research and development

into new medicines (par 17)

the TRIPS Council shall be guided by the objectives and

principles set out in Articles7 and8 of the TRIPSAgreement and shall take fully into account the

development dimension (par. 19)

Separate Declaration on the TRIPS Agreement and Public

Health


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Technical Assistance

The Doha Declaration reconfirmed that

technical cooperation and capacity building

are core elements of the development

dimension of the multilateral tradingsystem.

29/11/2005 TRIPS Council Declaration:

requests LDCs to supply technical and

financial cooperation needs in order to

implement TRIPS


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Sierra Leone and Uganda - communications to the WTO

TRIPS Council, titled Priority Needs for Technical and

Financial Cooperation

Overview of needs in terms of

Administrative reform

Short and long term goals

IP policy and regulatory framework

Administrative reform

Development of IP curriculum and general public training

Positive IPR agenda


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Promotion of traditional knowledge (museums, national gallery etc,

formalization of music industry etc)

Train police and judiciary

Improve cooperation between players (government departments,

private sector, farmer organisations, music industry, police, customs) Value edition in food and drinks>GI protection (market branding and

marketing efforts)

Provide management services to SMEs

Use public domain knowledge, avoid reinventing the wheel

Find niche / comparative advantage, specialization is the need forcivilization


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Declaration on the TRIPS Agreement and

Public Health 14/11/2001

we recognize the gravity of the public health problemsafflicting many developing and least-developed countries,especially those resulting from HIV/AIDS, tuberculosis,malaria and other epidemics (par 1)

we recognize that IP protection is important for thedevelopment of new medicines. We also recognize itseffects on prices (par 3)

we agree that the TRIPS does not and should not preventmembers from taking measures to protect public health,TRIPS should be interpreted and implemented in a mannersupportive of public health and promote access tomedicines (par 4)


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Each member has the right to grant compulsory licencesand the freedom to determine the grounds upon whichsuch licences are granted (par 5b)

each member has the right to determine what constitutes

a national emergency or other circumstance of extremeurgency (par 5c)

leave each member free to establish its own regime forexhaustion without challenge, subject to the MFN and

national treatment(par 5d)


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Compulsory license:

Right to use the patent without

permission of the patent holder subject tocertain conditions

(Art. 31 TRIPS)


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Compulsory Licensing

Article 31 TRIPS

(a) authorization of such use shall be consideredon its individual merits;

(b) such use may only be permitted if, prior tosuch use, the proposed user has made effortsto obtain authorization from the right holderon reasonable commercial terms andconditions and that such efforts have not beensuccessful within a reasonable period of time.

This requirement may bewaived by a Memberin the case of a national emergency or othercircumstances of extreme urgency or in cases

of public non-commercial use.


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Article 31 TRIPS

(c) the scope and duration of such useshall be limited to the purpose forwhich it was authorized

(d) such use shall be non-exclusive;(e) such use shall be non-assignable

(f) any such use shall be authorized

predominantly for the supply of thedomestic market of the Memberauthorizing such use;

P h 6 TRIPS D l i f TRIPS d


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Paragraph 6 TRIPS Declaration of TRIPS and

Public Health addressed the difficulties WTO

Members with limited pharmaceutical

production capacity have in making effective useof the compulsory licensing:

We recognize that WTO Members with insufficient orno manufacturing capacities in the pharmaceutical

sector could face difficulties in making effective use of

compulsory licensing under the TRIPS Agreement. We

instruct the Council for TRIPS to find an expeditioussolution to this problem and to report to the General

Council before the end of 2002


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Contentious points:--countries eligible to export the

generic medicine

--the limited scope of the diseases

being allowed for CL

--anti-diversion measures to

prevent parallel import of medicines toother countries rather than the intended

beneficiary


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Waiver Decision: 30/8/2003

Article 31bis TRIPS Agreement : 6/12/2005

(first TRIPS amendment)

allowing countries with inadequate

production facilities to import medicines

produced under compulsory license in third

countries

...

under certain cumbersome conditions


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Compulsory licenses are controversial

but

1000 United States 600 Europe

300 Japan

1-5 Developing countries


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Transition Periods

Developed countries had 1 year (1/1/1996)

Developing countries had 4 additional years(1/1/2000) to apply the TRIPS provisionsfollowing date of entry into force (1/1/1995)

plus 5 additional years to comply with the TRIPSAgreement provisions on pharmaceutical patents(1/1/2005)

In view of special needs of LDCs, they had till 1January 2006 to apply TRIPS with possibleextension to allow them to create a viabletechnological base


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The Decision of the Council for TRIPS of 29

November 2005 called Extension of the Transition

Period Under Article 66.1 For Least-DevelopedCountry Members provides under paragraph 1

that:

LDCs shall not be required to apply the

provisions of the Agreement, other than Articles 3,4 and 5, until 1 July 2013, or until such a date on

which they cease to be a least-developed country

Member, whichever date is earlier.

Par 7 Declaration on TRIPS and Public Health

extends till 1/1/2016 for pharmaceutical protection


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Need to

rebalance innovation incentives and the public interest realize that IPRs will not solve all problems (neither will TK prot)

balance public and private rights at the international level

promote coherence among different international agreements and

FTAs expand civil society participation/consultations in national,

regional and international rules setting processes on IPRs

focus on implementation of WIPO Development Agenda, linkwith WTO negotiations

implement flexibilities, let IPRs work for you!

build on Disclosure of Origin Momentum

avoid adopting new IPRs before implementing existing ones

carry out cost-benefit analysis of GI extension and register


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MERCI

[email protected]

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