Fleur Claessens
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
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
Patents
Trademarks Copyright
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
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
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
INTELLECTUAL PROPERTY RELEVANCE LOW LEVEL IMITATION APPLICATION INNOVATION HIGH LEVEL
LEARNING CURVE
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
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
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)
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 ... under certain cumbersome conditions
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
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
Fleur.claessens@unctad.org