Flexibilities in the Patent System

Similar documents
IP Strategies to Enhance Competitiveness: India s Experience

Innovation, Creativity, and Intellectual Property Rights

Regional Seminar on the Effective Implementation and Use of Several Patent-Related Flexibilities

Changing role of the State in Innovative Activity The Indian Experience. Sunil Mani

The TRIPS Agreement and Patentability Criteria

Science, Technology & Innovation Indicators

Global Trends in Patenting

TRIPS Article 27 Patentable Subject Matter

Carnegie Endowment for International Peace

Topic 2: Patent-related Flexibilities in Multilateral Treaties and Their Importance for Developing Countries and LDCs

Corporate Invention Board

INDIA Market Projections and Developments

OVERVIEW THE INDONESIA TEXTILE INDUSTRY

The Internationalization of R&D in India: Opportunities and Challenges. Rajeev Anantaram National Interest Project March 2009

TRIPS and Access to Medicines. WR Briefing

Dr. Biswajit Dhar Professor, Jawaharlal Nehru University, India and Member DA9 Advisory Board

TRIPS Post Grant Flexibilities: Key Exceptions to Patent Holders' Rights. David Vivas Eugui

A Brief History of IP & Patents: Drawing Lessons from the Past

International Patent Regime. Michael Blakeney

IP and Technology Management for Universities

TRAINING SEMINAR PHARMACEUTICALS AND INTELLECTUAL PROPERTY ACCESS TO MEDICINE: Exploitation of pharmaceutical patents: compulsory licences SESSION 4

ROLE OF INTELLECTUAL PROPERTY RIGHTS IN DEVELOPING COUNTRIES -ASHWINI SANDU.

Protection of New Plant Varieties under the TRIPS Agreement

Regional Seminar for Certain African Countries on the Implementation and Use of Several Patent-Related Flexibilities

Towards a New IP Consciousness in Universities and R&D Institutions: Case Show

TRIPS-Plus Provisions and Access to Technologies:

Role of Science, Technology and innovation policy in stimulating economic growth and competitiveness

PCT Yearly Review 2017 Executive Summary. The International Patent System

TRIPS, FTAs and BITs: Impact on Domestic IP- and Innovation Strategies in Developing Countries

The role of IP in economic development: the case of China

Flexibilities in the Patent System

Standing Committee on the Law of Patents Twenty-Sixth Session

(3) How does one obtain patent protection?

Foreign Filing Strategies - Considerations in Protecting Your Patents Globally

Intellectual Property and Genetic Resources: Relationship with Relevant International Instruments

Presented at GIZ/SAWTEE Training on IPR 1-2 March 2012, Laltipur. Ratnakar Adhikari South Asia Watch on Trade, Economics and Environment

University IP and Technology Management. University IP and Technology Management

Why intellectual property can be a barrier to TT

Statement by the BIAC Committee on Technology and Industry on THE IMPACT OF INTELLECTUAL PROPERTY PROTECTION ON INNOVATION AND TECHNOLOGY DEVELOPMENT

Innovation Strategies o f the BRICKS: Different Strategies, Different Results. November 18, 2008

Economics of IPRs and patents

TRIPS and Access to Medicines. The Story so far

How to take advantage of China knowledge base?

Intellectual Property and Public Health - International Framework and Recent Developments in WIPO: SCP and CDIP

Topic 2: The Critical Role of IP Policies in Modern Economies

An overview of India's approach to key IP issues at home and abroad. Dr. Bona Muzaka King s College London

Demétrio Toledo. Smart G Colloquium: Science, Technology and Innovations Systems in Africa and Brazil Helsinki 9-12 August, 2010

PCT System and Its Impact on the Developing Countries

Protecting your business abroad: Latin America, China and South-East Asia Landscape. Eli Salis 28th February 2017

WORLD INTELLECTUAL PROPERTY ORGANIZATION. WIPO PATENT REPORT Statistics on Worldwide Patent Activities

Indian Pharmaceutical Alliance. Responses to the issues raised in the Discussion Paper on the Utility Model

CRC Association Conference

Technology transfer and development: implications of four case studies Session 2

Patents. Highlights. Figure 1 Patent applications worldwide

UTILITY MODELS A USEFUL NATIONAL STRATEGY FOR PROMOTING INNOVATION?

Innovation Policy And Strategy. - Indian Perspective

CDP-EIF ITAtech Equity Platform

OECD Science, Technology and Industry Outlook 2008: Highlights

Highlights. Patent applications worldwide grew by 5.8% 1.1. Patent applications worldwide,

OECD s Innovation Strategy: Key Findings and Policy Messages

WIPO-IFIA INTERNATIONAL SYMPOSIUM ON THE COMMERCIALIZATION OF INVENTIONS IN THE GLOBAL MARKET

Intellectual Property and Science: A Complex Partnership

INTELLECTUAL PROPERTY OVERVIEW. Patrícia Lima

19 Progressive Development of Protection Framework for Pharmaceutical Invention under the TRIPS Agreement Focusing on Patent Rights

2.3 Trends Related to Research Performance

South South Cooperation on IP and Development: Approaching IP Governance from a Development Perspective

Nitya Nanda. The Energy and Resources Institute (TERI)

PCT Yearly Review 2018 Executive Summary. The International Patent System

Monitoring R&D resource flows: Global resources and challenges

Patent Statistics as an Innovation Indicator Lecture 3.1

OECD Science, Technology and Industry Outlook 2010 Highlights

COMPLIANCE OF CANADA S UTILITY DOCTRINE WITH INTERNATIONAL MINIMUM STANDARDS OF PATENT PROTECTION

UNCITRAL Third International Colloquium on Secured Transactions Session on Contractual Guide on IP Licensing (Vienna, March 3, 2010)

ROLE UNIVERSITIES PLAY IN INNOVATION AND ENTREPREURSHIP

Key Features of Patent and Utility Models Protection

Economic Outlook for 2016

Industrial Investment in Research and Development: Trends and Prospects

OECD Innovation Strategy: Developing an Innovation Policy for the 21st Century

Welcome to the IFR Press Conference 30 August 2012, Taipei

Globalizing IPR Protection: How Important Might RTAs Be?

Historical Background, General Provisions and Basic Principles of the TRIPS Agreement and Transitional Arrangements*

NIS Transformation and Recombination Learning in China

The Green Economy: Trade and Sustainable Development Implications. From Rio to Rio:Technology Transfer, Innovation and Intellectual Property

Overview. China Development s Need for IP Protection. Intellectual Property and Development China s National Experiences

How New Jersey's Economy Benefits from International Trade & Investment

Innovation policies to promote more inclusive growth: comments

"#$%&#!'()*+$#$,-!.+/(0!1&2(34!

Observations from Pharma

China: Technology Leader or Technology Gap?

Automated Frequency Response Measurement with AFG31000, MDO3000 and TekBench Instrument Control Software APPLICATION NOTE

Developing Countries in the Globalization of Pharmaceutical Patenting

strong patents, weak patents and evergreening: should patents for drugs be challenged more often? Giancarlo Del Corno Studio Legale Sena e Tarchini

Does the Increase of Patent in China Means the Improvement of Innovation Capability?

Presentation. March 2007

IPRs and Public Health: Lessons Learned Current Challenges The Way Forward

TRIPS-plus How FTAs and other bilateral treaties impose intellectual property rights on life in developing countries

UNESCO Science Report (2015)

Mexico s Fastener Imports

POWERING AMERICA S AND NEVADA S ADVANCED INDUSTRIES

Detailed Presentation of Trade and technology transfer

Transcription:

Flexibilities in the Patent System Joseph Straus, Munich WIPO Colloquium on Selected Patents Issues Geneva, February 16, 2007 J. Straus 2007 1

Topics to Consider Facts First Pre-TRIPS-Regime TRIPS & Mandatory Standards Room to manoeuvre under TRIPS How much flexibility optimal? Facts not ideology should control J. Straus 2007 2

Source: The Economist August 5th 2006, S. 46 J. Straus 2007 3

Examples for Positive Development in Selected (Developing and Newly Industrialized Countries (after TRIPS) Growth of National Economies China India Developing Countries total Latin American and Caribbean Countries Industrialized Countries 9 % 7 % 5,9 % 4,5 % 2,5 % J. Straus 2007 4

Foreign Trade Balance Brazil: Trade Surplus 2005: 14,2 Billions USD Argentina: Trade Surplus 2005: 11,3 Billions USD China Trade Surplus 2006: (10 months) 133,6 Billions USD J. Straus 2007 5

Brazil & R. Korea Compared BRAZIL 1987 No. 17 Export nation ahead of AUS, AT, BE, SP 3 billion USD? R & D Investment 3 million USD? Licensing contracts for tech. imports 106 million USD? importing specialized tech. services 26 million USD? purchase of ind. Technologies R. KOREA 1986 1987 No. 9 Export nation 920 million USD? technology imports [1962 87 2.3 billion USD] J. Straus 2007 6

J. Straus 2007 7

J. Straus 2007 8

US Patents Granted to Certain Developing Countries (1985 2000) Taiwan Rep. of Korea Hongkong Singapore India South Africa Brasil China Mexico Argentina Malaysia I. Total of above II. Total World III. Share of Total (I) in World Total (II) 1983 1990 1995 2000 199 861 50 290 66 151 10 16 11 23 97 122 30 45 1 48 35 34 12 19 3 6 514 1615 77273 99219 0.67 1.63 2087 5806 1240 3472 248 548 61 242 38 131 127 125 70 113 63 163 45 100 32 63 8 47 4019 10810 113955 176087 3.53 6.14 Source: Intellectual Property and Competitive Strategies in the 21st Century, Shahid Alikhan and Raghunath Mashelkar J. Straus 2007 9

China as Test Case for GATT/TRIPS Scientific and R&D Personnel Scientific and technological personnel 1950 50.000 1978 1,37 Mio. 2002 2,17 Mio. R & D personnel 1986 781.000 2002 1.035.000 Gao & Tisdell [2004] J. Straus 2007 10

continued China as Test Case for GATT/TRIPS Investment in Research By value 1985 48.1 (yuan 100 Mio.) 1995 348.7 (yuan 100 Mio.) 2002 1,287.6 (yuan 100 Mio.) 2003 ~ 69 Billions $ By percentage of GDP 0,58 % 0,60 % 1,23 % Gao & Tisdell [2004] Fischer & von Zedtwitz [2004] J. Straus 2007 11

Global Ranking in R&D Investment USA 282 Billions US $ Japan 104 Billions US $ China 60 Billions US $ [0,6 % of GDP 1996 1,3 % 2002] Germany 54 Billions US $ J. Straus 2007 12

continued China as Test Case for GATT/TRIPS By 2003 More than 200 R & D laboratories established by foreign firms in the computer and telecommunications sector alone Walsh [2003] J. Straus 2007 13

National Investment in Research [in percentage of GNP] 5 4,3 4 3,5 3 2 3 2,5 2,2 1,8 1 1,23 1,1 0 Sweden Finland USA/Japan Germany France UK China Italy Source: Eurostat J. Straus 2007 14

China: Development of Wages & Prices Financial Times July 12, 2006 J. Straus 2007 15

India as Test for GATT/TRIPS FDI: 2001-2002 +65 % [3.91 Billions US $ - World Rank 7] Textile Exports: 2003-1 Billions US $? 50 Billions US $ 2010 [predicted] Turnover in IT Technologies: 2003-16 Billions US $ [75 % Exports]? 50 Billions US $ 2008 [predicted] J. Straus 2007 16

Number of patent pleas in India s mailbox by country 2,000 1,500 1,000 500 0 US India UK Switzerland Japan Sweden France Denmark Belgium Source: Narendranath, The Financial Express, March 21, 2005 J. Straus 2007 17

U.S. Patents in Drugs Granted to Indian Inventors from 1997-2001 50 40 30 20 10 0 1997 1998 1999 2000 2001 Source: IIC International Review of Intellectual Property and Competition Law, 3/2006, C.H. Beck, Munich J. Straus 2007 18

Dr. Reddy s & Ranbaxy s US Patent Activities 100 80 60 40 20 Published patent applications in the US as at March 23 2006 100 80 60 40 20 Publishes patents in the US as at March 28 2006 0 Dr Reddy s Ranbaxy 0 Dr Reddy s Ranbaxy Source: US Patent Office Source: US Patent Office J. Straus 2007 19

Chasing China GDP, annual % increase Five-year moving average Source: The Economist February 3 rd 2007 J. Straus 2007 20

Weaknesses of Pre-TRIPS Systems Principle of territoriality vs. de-territorialized economy National treatment vs. deficient minimum rights Increasing opening of commodity markets J. Straus 2007 21

Pre-TRIPS Situation Exclusions from Patentability in Paris Union Member States Pharmaceutical products 49 Members Animal and plant varieties 42 Members Food products 35 Members Computer programs 32 Members Chemical products 22 Members Pharmaceutical processes 10 Members Micro-organisms 9 Members [Out of 92 Paris Union Members] J. Straus 2007 22

TRIPS Objectives Article 7 The protection and enforcement of IPRs should contribute to the Promotion of technical innovation Transfer and dissemination of technology To the mutual advantage of producers and users of technical knowledge In a manner conducive to social and economic welfare, and to a balance of rights and obligations J. Straus 2007 23

TRIPS Principles Article 8 Members may adopt Measures necessary to protect public health and nutrition, and to promote the public interest in sectors of vital importance to their socio-economic and technological development Appropriate measures needed to prevent the abuse of IPRs by right holders or the resort to practises which unreasonably restrain trade or adversely affect the international transfer of technology Provided such measures are consistent with TRIPS provisions J. Straus 2007 24

TRIPS Basic Rules Basic Principles Rights conferred - Minimum Standards National Treatment, subject to exceptions existing under PC (Art. 3) Most-Favoured-Nation Treatment (Art. 4) [with some exceptions] J. Straus 2007 25

Mandatory TRIPS Protection Standards Patents must be available for inventions in all fields of technology no discrimination allowed (Art. 27 (1)) Exclusions allowed if necessary to prevent commercial exploitation which would violate ordre public or morality thus applicable only if the respective exploitation not allowed (Art. 27 (2)) Further allowed exclusions: Diagnostic, therapeutic and surgical methods for the treatment of humans or animals; plants and animals, as well as essentially biological processes for their production (Art. 27 (3)) However, micro-organisms, and in general - non-biological and micro-biological processes mandatorily eligible for patent protection (Art. 27 (3)) J. Straus 2007 26

Room to Manoeuvre Patentable Subject Matter Notion of Invention Discovery Product of Nature Art. 6 b of Decision 344 Andean Group excluding: Substances pre-existing in nature and their replications Art. 6 g Argentinean PA excluding: Any kind of life material or substances already existing in nature Art. 18 Brazilian IP law excluding Parts of plants and animals, extracts & active substances isolated from plants, animals or natural micro-organisms TRIPS compatible? Advantageous? J. Straus 2007 27

Room to Manoeuvre as to the Effects of Patents Research Exemption covering: research for further improvements and further developments, clinical trials of all kinds with patented substances (see, e.g. USA, Japan), irrespective eventual commercial aim, use as research tools (in academe?), use of biological material for breeding purposes (Germany) (Art. 30) Compulsory and dependency compulsory licenses, also for plant breeders vs. Patentees (Art. 31, EU Biotech Directive) Farmers privilege, at least to the extent available under PBR scheme (EU Biotech Directive) J. Straus 2007 28

Impact of IP on investment in research The GATT/TRIPS Context High IP protection standards + Liberalized commodity & IP world Markets + Low labor & regulatory costs + Reliable judiciary + Predictable stable political environment + Well functioning of education J. Straus 2007 29

Impact of IP on investment in research The GATT/TRIPS Context Irresistible for multinationals to relocate production and R&D activities China, Taiwan, India prominent examples Increase exports from there Improve local R&D skills Tiger States of South-East Asia have successfully coped with globalization they can massively narrow the welfare gap [Joseph Stiglitz, Nobel Laureat] J. Straus 2007 30

The Aim of Flexibility = Macro-Economically Optimal Legal Solution Decision-making: based on past and present facts Decision-making: taking into account (real) national interests Needed: a balanced patent system, using room to maneuver under TRIPS adapted to national needs Patents & IPR only one factor of development! J. Straus 2007 31

Thank you J. Straus 2007 32