Transcript Globalization Drives Intellectual Property to the

Globalization Drives Intellectual Property to
the International Level
Rochelle Dreyfuss
Pauline Newman Professor of Law
New York University School of Law
Skolkovo Innovation Center
April 22, 2014
Article 27
Patentable Subject Matter
1. … [P]atents shall be available for any inventions, whether products or
processes, in all fields of technology, provided that they are new, involve an
inventive step and are capable of industrial application. … [P]atents shall be
available and patent rights enjoyable without discrimination as to the place of
invention, the field of technology and whether products are imported or
locally produced.
India Patent Act, §3(d)
The mere discovery of a new form of a known substance which does not
result in the enhancement of the known efficacy of that substance or the mere
discovery of any new property or new use for a known substance or of the mere use
of a known process, machine or apparatus unless such known process results in a new
product or employs at least one new reactant.
Explanation. For the purposes of this clause, salts, esters, ethers, polymorphs,
metabolites, pure form, particle size, isomers, mixtures of isomers, complexes,
combinations and other derivatives of known substance shall be. considered to be the
same substance, unless they differ significantly in properties with regard to efficacy.
Raising International Norms
Transpacific Partnership Agreement (TPP)
Australia
Brunei Darussalam
Chile
Malaysia
New Zealand
Peru
Singapore
United States
Vietnam
Canada and Mexico joined negotiations in 2012.
Transpacific Partnership Agreement
Art. 8: PATENTS
1. Each Party shall make patents available for any invention, whether a
product or process, in all fields of technology, provided that the invention is
new, involves an inventive step, and is capable of industrial application. In
addition, the Parties confirm that: patents shall be available for any new
forms, uses, or methods of using a known product; and a new form, use, or
method of using a known product may satisfy the criteria for patentability,
even if such invention does not result in the enhancement of the known
efficacy of that product.
(second example)
TRIPS Art. 39
“Data exclusivity”
3. Members, when requiring, as a condition of approving the marketing of
pharmaceutical or of agricultural chemical products which utilize new
chemical entities, the submission of undisclosed test or other data, the
origination of which involves a considerable effort, shall protect such data
against unfair commercial use. In addition, Members shall protect such data
against disclosure, except where necessary to protect the public, or unless
steps are taken to ensure that the data are protected against unfair
commercial use.
US-Jordan Free Trade Agreement
Pursuant to Article 39.3 of TRIPS, each Party, when requiring, as a condition of
approving the marketing of pharmaceutical or of agricultural chemical
products that utilize new chemical entities,* the submission of undisclosed
test or other data, or evidence of approval in another country, the
origination of which involves a considerable effort, shall protect such
information against unfair commercial use. In addition, each Party shall
protect such information against disclosure, except where necessary to
protect the public, or unless steps are taken to ensure that the information is
protected against unfair commercial use.
* It is understood that protection for “new chemical entities” shall also
include protection for new uses for old chemical entities for a period of three
years.
Creating “counter-norms”
Article 30
Exceptions to the Rights Conferred
Members may provide [1] limited exceptions to the exclusive rights conferred
by a patent, provided that such exceptions [2] do not unreasonably conflict
with a normal exploitation of the patent and [3] do not unreasonably
prejudice the legitimate interests of the patent owner, taking account of the
legitimate interests of third parties.
WHO Framework Convention on Tobacco Control
Article 13 - Tobacco advertising, promotion and sponsorship
1.Parties recognize that a comprehensive ban on advertising, promotion and
sponsorship would reduce the consumption of tobacco products.
2.Each Party shall, in accordance with its constitution or constitutional principles,
undertake a comprehensive ban of all tobacco advertising, promotion and
sponsorship. This shall include, subject to the legal environment and technical
means available to that Party, a comprehensive ban on cross-border advertising,
promotion and sponsorship originating from its territory. In this respect, within
the period of five years after entry into force of this Convention for that Party,
each Party shall undertake appropriate legislative, executive, administrative
and/or other measures and report accordingly in conformity with Article 21.
4.As a minimum, and in accordance with its constitution or constitutional
principles, each Party shall:
a.prohibit all forms of tobacco advertising, promotion and sponsorship that promote a
tobacco product by any means that are false, misleading or deceptive or likely to create an
erroneous impression about its characteristics, health effects, hazards or emissions;
b.require that health or other appropriate warnings or messages accompany all tobacco
advertising and, as appropriate, promotion and sponsorship;
UNCTAD-ICTSD Project on Intellectual Property Rights
and Sustainable Development
The joint Project by UNCTAD and the International Centre for Trade and
Sustainable Development (ICTSD) on Intellectual Property Rights and Sustainable
Development is intended to address the concerns voiced by developing countries
with respect to the implementation of the TRIPS Agreement and new
developments in the area of intellectual property rights (IPRs) contained in
multilateral treaties and regional and bilateral free trade agreements *.
•
The Project aims at improving the understanding of the development
implications of IPRs; facilitating informed participation in ongoing multilateral,
regional and bilateral negotiations, as well as assisting national authorities in
the implementation of international IP commitments and adoption of forwardlooking national IPRs policies.
•
The research and policy analysis conducted under this partnership to date has
resulted in numerous publications, including:
•
A Resource Book on TRIPS and Development providing a development-oriented analysis
of each provision of the TRIPS Agreement, taking into account economic and social
implications and IPR trends in non-WTO forums. The book is available on the project
website and was published by Cambridge University Press in February 2005.
Development Agenda for WIPO
Implementation and outputs
The actions undertaken to implement the Development Agenda
recommendations range from practical projects and activities, to the
application of certain principles and objectives to our work.
Project status
A results-oriented, project methodology underpins the practical
implementation of most Development Agenda recommendations. Find the
status, documents and results for all completed and ongoing projects.
Studies
Studies published to date in connection with Development Agenda projects
address diverse policy issues in subjects including IP and competition, IP and
the public domain, technology transfer support infrastructure and others.
DECLARATION ON PATENT PROTECTION
Regulatory Sovereignty under TRIPS
As a framework regulation for innovation markets, the patent system needs to be
tailored to the innovation process, which it is supposed to serve, and to the
competitive environment, within which it must operate. In order to ensure an
efficient functionality of the patent system as an innovation policy tool, patent
rights ought to be defined, justified and continually reconsidered by reference to
their socio-economic benefits and costs.
Sovereign states should retain the discretion to adopt a patent system that best
suits their technological capabilities as well as their social, cultural and economic
needs and priorities, with the proviso that the exercise of such discretion must
remain within the boundaries of international law. Taking into account the
customary principles of interpretation of international law, this Declaration seeks
to shed light on these boundaries. The purpose is to clarify the policy space that
the ‘Agreement on Trade-Related Aspects of Intellectual Property Rights’ (TRIPS
Agreement) leaves to national legislators and judicial authorities with regard to
the implementation and administration of their patent systems.
Limitations and Exceptions
Limitations and exceptions to copyright and related rights vary from
country to country due to particular social, economic and historical
conditions. International treaties acknowledge this diversity by
providing general conditions for the application of exceptions and
limitations and leaving to national legislators to decide if a particular
exception or limitation is to be applied and, if it is the case, to
determine its exact scope. Due to the development of new
technologies and the ever-increasing worldwide use of the Internet, it
has been considered that the above balance between various
stakeholders’ interests needs to be recalibrated.
Limitations and exceptions is an issue considered in the agenda of the
WIPO Standing Committee for Copyright and Related Rights (SCCR)
and, recently, its debate has been focused mainly on three groups of
beneficiaries or activities in relation to exceptions and limitations – on
educational activities, on libraries and archives and on disabled
persons, particularly visually impaired persons.
UNCTAD-ICTSD
THE INTERNATIONAL COPYRIGHT SYSTEM:
Limitations, Exceptions and
Public Interest Considerations for Developing Countries
By Ruth L. Okediji
William L. Prosser Professor of Law
University of Minnesota Law School
Historic Treaty Adopted, Boosts Access to Books for Visually Impaired
Persons Worldwide
Marrakesh/Geneva, June 27, 2013
PR/2013/741
International negotiators meeting under the auspices of the World Intellectual Property
Organization (WIPO) adopted today a landmark new treaty that boosts access to books for
the benefit of hundreds of millions of people who are blind, visually impaired and printdisabled.
The treaty, approved after more than a week of intense debate among negotiators gathered
in Marrakesh, Morocco, is the culmination of years of work on improving access for the
blind, visually impaired, and print disabled to published works in formats such as Braille,
large print text and audio books.
“This treaty is a victory for the blind, visually impaired and print disabled, but also for the
multilateral system. With this treaty, the international community has demonstrated the
capacity to tackle specific problems, and to agree a consensus solution. This is a balanced
treaty, and represents a very good arbitration of the diverse interests of the various
stakeholders,” said WIPO Director General Francis Gurry.