Transcript Intellectual Property Rights Implications for Development Fleur Claessens What is Intellectual Property? • … books, CD’s, video games, paintings, staplers, bags, fabrics, planes, food/drinks, pharmaceuticals,

Intellectual Property Rights
Implications for Development
Fleur Claessens
What is Intellectual Property?
• … books, CD’s, video games, paintings,
staplers, bags, fabrics, planes,
food/drinks, pharmaceuticals, plant
varieties, computer chips, cars, music,
broadcasts, sound recordings, etc…
• …an IP right provide the right holder
with an exclusive right to stop others
• ..IP right holder may provide licenses
• …IP rights are territorial in nature
Forms of Intellectual property
Rights
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Patents
Trade Marks
Designs
Copyrights
Geographical Indications
Industrial Designs
Trade Secrets
Utility Models
Traditional Knowledge (?)
Patent requirements
• New/novel
• Inventive step/non-obviousness
(not obvious to someone skilled in
the art)
• Industrial Applicability
• Patentable subject matter
What is patentable?
• “Everything under the sun that is made
by man.“ Diamond v. Chakrabarty 1980
US Supreme Court
• Ideas/inventions are patentable
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. Such
discoveries 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 by
publication 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)
How to obtain a patent?
• Domestic patent/IP office: filing, obtain priority
date
• European patents: a bundle of patent rights at the
European patent office
• International level: WIPO PCT
Application requirements:
• Description as how the invention works
• Claim covering the scope of the legal monopoly
claimed by the patentee
• Examination and publication
Copyright
• Copyrights protects the rights of authors of literary and
artistic works
• Copyright is in essential a negative right which prevents
others from making copies of the work of an author
• No copyright in a pure idea/news/simple
works/information itself
• Expression/idea dichotomy
• If sufficient ‘selection, judgment and experience’ or
‘labour/skill and capital’ copyright can be granted, even in
a database (so not the content in the data base but the
compilation itself), in EU separate database right, not in
the US.
• Moral rights versus economic rights
Rationale behind IPRs
Patents
To stimulate innovation/encourage investment the
inventor receives an exclusive right to his invention
in exchange for disclosure of the invention in such
a way that it allows replication, the inventor
receives a limited amount of time to recoup his
investment
Trademarks
Protection of goodwill and reputation
Copyright
Protection of creativity
Innovation: Methods and Factors
“Innovation is the development and implementation of an improved
(incremental) or new (landmark) product or process with success in a
business 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.
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
The TRIPS Agreement
…sets minimum standards
…is part of a package deal – WTO Agreement
…is signed by 153 parties… is subjected to
dispute settlement body
...contains enforcement mechanisms
...is subjected to National Treatment and
Most-favoured-Nation Treatment (MFN)
Principles
Contemporary Challenges in IPR negotiations...
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GIs
Creation of a multilateral register for wines and spirits
Extending the higher level of protection beyond wines and spirits
Linkage between GIs and the agriculture negotiations – clawback 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
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Implementation of the WIPO Development Agenda
Enforcement (WTO US versus China Panel Report)
Ongoing norm setting activities / FTAs
Technology Transfer
Technical Assistance and Cooperation
Why are IPRs controversial?
IPRs
• … create semi-monopolies also covering goods that
might be essential to society (e.g. pharmaceuticals
and 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:
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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
Some facts
• Swift pace of technological transformation technology
has become important in all economic activities
• International collaborations have led to the
globalization of all economic and technological
activities
• Much more regulation!
 3 countries concentrate around 60% of applications
 5 countries account for above 80% of royalties and fees
recipients of which above 70% relates to intra-firm
payments
The Public Interest
• Promotion of
innovation
• Public health and
access to medicines
• Nutrition and Food
security
• Technology transfer
• Competition policy
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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
Socio-economic development
• Stages of development
• Sophistication of their industrial base,
including cultural creative industries
• Coherence with related policies (national
innovation systems; industrial, trade,
competition, FDI policies)
• Sectoral policies: health, education,
infrastructure
IPRs and Development an integrated model
LEVELS OF
DEVELOPMENT
LOW LEVEL
INTERMEDIATE
LEVEL
INTELLECTUAL
PROPERTY
RELEVANCE
HIGH LEVEL
LOW LEVEL
IMITATION
APPLICATION
INNOVATION
LEARNING CURVE
HIGH LEVEL
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
Doha Ministerial Declaration
14/11/2001
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“implementation and interpretation of the TRIPS in a
manner 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 Articles 7 and 8 of the TRIPS
Agreement and shall take fully into account the
development dimension” (par. 19)
• Separate Declaration on the TRIPS Agreement and Public
Health
Technical Assistance
• The Doha Declaration reconfirmed that
technical cooperation and capacity building
are core elements of the development
dimension of the multilateral trading
system.
• 29/11/2005 TRIPS Council Declaration:
…requests LDCs to supply technical and
financial cooperation needs in order to
implement TRIPS
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
 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 for
civilization”
Declaration on the TRIPS Agreement and
Public Health 14/11/2001
• “we recognize the gravity of the public health problems
afflicting 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 the
development of new medicines. We also recognize its
effects on prices” (par 3)
• “we agree that the TRIPS does not and should not prevent
members from taking measures to protect public health,
TRIPS should be interpreted and implemented in a manner
supportive of public health and promote access to
medicines” (par 4)
• “Each member has the right to grant compulsory licences
and the freedom to determine the grounds upon which
such licences are granted” (par 5b)
• “each member has the right to determine what constitutes
a national emergency or other circumstance of extreme
urgency (par 5c)
• “leave each member free to establish its own regime for
exhaustion without challenge, subject to the MFN and
national treatment” (par 5d)
Compulsory license:
Right to use the patent without
permission of the patent holder subject to
certain conditions
(Art. 31 TRIPS)
Compulsory Licensing
Article 31 TRIPS
(a)
(b)
authorization of such use shall be considered
on its individual merits;
such use may only be permitted if, prior to
such use, the proposed user has made efforts
to obtain authorization from the right holder
on reasonable commercial terms and
conditions and that such efforts have not been
successful within a reasonable period of time.
This requirement may be waived by a Member
in the case of a national emergency or other
circumstances of extreme urgency or in cases
of public non-commercial use.
Article 31 TRIPS
(c) the scope and duration of such use
shall be limited to the purpose for
which 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 the
domestic market of the Member
authorizing such use;
Paragraph 6 TRIPS Declaration of TRIPS and
Public Health addressed the difficulties WTO
Members with limited pharmaceutical
production capacity have in making effective use
of the compulsory licensing:
“We recognize that WTO Members with insufficient or
no 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 expeditious
solution to this problem and to report to the General
Council before the end of 2002”
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 to
other countries rather than the intended
beneficiary
• 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
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under certain cumbersome conditions
• Compulsory licenses are controversial
but…
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1000 United States
600 Europe
300 Japan
1-5 Developing countries
Transition Periods
• Developed countries had 1 year (1/1/1996)
• Developing countries had 4 additional years
(1/1/2000) to apply the TRIPS provisions
following date of entry into force (1/1/1995)
plus 5 additional years to comply with the TRIPS
Agreement provisions on pharmaceutical patents
(1/1/2005)
• In view of special needs of LDCs, they had till 1
January 2006 to apply TRIPS with possible
extension to allow them to “create a viable
technological base”
• The Decision of the Council for TRIPS of 29
November 2005 called ‘Extension of the Transition
Period Under Article 66.1 For Least-Developed
Country 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
Need to…
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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, link
with 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
MERCI
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