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The Regulation of Intellectual Property Rights

The Regulation of Intellectual Property Rights. Philipp Aerni. IPRs, Biodiversity and the Global Economy. Prior to TRIPs (WTO Trade Related Aspects on IPR: Multilateral treaties Patent Cooperation Treaty Paris Convention for the Protection of Industrial Property,

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The Regulation of Intellectual Property Rights

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  1. The Regulation ofIntellectual Property Rights Philipp Aerni

  2. IPRs, Biodiversity and the Global Economy Prior to TRIPs (WTO Trade Related Aspects on IPR: Multilateral treaties • Patent Cooperation Treaty • Paris Convention for the Protection of Industrial Property, • Bern Convention for the Protection of Literary and Artistic Work) administered by the World Intellectual Property Organization WIPO Trends in the IPR system: The broadening of existing rights The creation of new (sui generis) rights The progressive standardization of basic features of IPRs • TRIPs 1995 under GATT (instead of WIPO) Seeks enforceable minimal standards of protection

  3. WTO/TRIPs (Trade-Related Aspects of IP) Objectives and General Principles Competition: Article 3 (NationalTreatment) Article 4 (MFN) Exhaustion:national vs. International exhaustion IPRs: Patents, GeographicaI Indications, Trademarks, Trade Secrets (undisclosed information) Transition periods: Developed countries -1995; 1996; Developing countries - 2000; 2005; LDCs – 2006; mid-2014; 2016

  4. Patents • Used to be unrestricted privileges given by ruler to a favorite subject • The purpose of the new patent system was to limit the power of such monopolies and allow for innovation • Patents are granted if they fulfill three criteria: • Novelty • Non-obviousness (inventive step) • Industrial Application • Exceptions (Article 27 of the TRIPS agreement)

  5. Patents and Plants (Article 27) Article 27: Exclusions under Paragraph 2 (ordre public and morality) and 3 (products, plants, animals and biological processes) • Article 27/3 b) members shall provide for the protection of plant varieties either by patents or by an effective sui generis system or by combination thereof UPOV (Convention of the International Union for the Protection of New Varieties of Plants) • Breeder‘s Rights (prior authorization for sale) • Breeder‘s Exemption (further breeding) • Farmer‘s Privilege (re-use seeds) From UPOV 1978 to UPOV 1991 (extension of protection, Farmer‘s privilege up to national law)

  6. Convention of Biological Diversity (CBD) and IPRs • Objectives • Conservation of biological diversity • The sustainable use of its components • The fair and equitable sharing of the benefits arising out of the utilization of genetic resources, including appropriate access to genetic resources and by appropriate transfer of technologies, taking into account all rights over those resources and to technologies, and by appropriate funding

  7. CBD and TRIPs • Article 16: Access to Technology: IPRs must be supportive of and do not run counter to the CBD objectives • Article 8: In-situ Conservation:preserving and maintaining indigenous knowledge and innovations, ensuring the holder‘s rights (registration) • Article 17: Exchange of Information: public information should be freely available (reason for distrust?) • Article 18: Technical Cooperation: Encourage models of cooperation for the development and use of technology • Article 15: Reaffirms the sovereign rights of states over their natural resources (prior informed consent, access/benefit sharing laws)

  8. TRIPS and Public Health“ does TRIPS kill babies?” Content of the Doha DeclarationGeneral Council Decision on Paragraph 6 (Article 31f) (Trips Plus) • Clarification compulsory licences: • right to grant • freedom to determine the grounds • Clarification of emergency situations: right to determine what constitutes a national emergency of other circumstance of extreme urgency • Clarification of exhaustion: freedom to establish own regime • Transfer of technology: reaffirmation of Article 66.2 commitment

  9. Recap: Use of the Para. 6 System Public Health Problem in WTO Member requiring pharmaceutical product Product not patented Product patented Compulsory licence in compliance with Art 31 TRIPS Agreement with originator Pharmaceutical product cannot be manufactured domestically Pharmaceutical product can be manufactured domestically Product patented in exporting Member Product not patented in exporting Member Supply by non-WTO Member Need to use para. 6 System if exported amount is predominant share of production

  10. GC Decision WT/L/641 Hongkong Declaration, 6 December 2005 • Basis: para.11 of August 2003 Decision which instructed TRIPS Council to initiate work on amendment by end 2003 with a view to its adoption within 6 months • GC adopted a Protocol amending the TRIPS Agreement and submitted it to Members for acceptance • Protocol open for acceptance until 1/12/2007 • Paragraph 6 System as established under August 2003 Decision continues to apply until entry into force of amendment in a Member No Notifications so far for compulsory licensing using the paragraph 6 system

  11. Statements by Chairman and Recognition by Hongkong Ministerial Conference (MC) • Chairman’s Statement on non-violation complaints: amendment without prejudice to overall question of applicability of NVCs to TRIPS • Hong Kong MC in December 2005: Ministers welcome work on TRIPS amendment to implement August 2003 Decision

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