1,720,973 research outputs found
Turning Trips on Its Head: An "IP Cross Retaliation" Model for Developing Countries
No full textThe biblical David vs. Goliath paradigm plays out very frequently in international trade disputes. In 2003, a tiny island state, Antigua and Barbuda (hereafter Antigua) took on the United States (hereafter U.S.) in a WTO (World Trade Organization) dispute, alleging that the U.S. violated the General Agreement on Trade in Services (hereafter GATS) obligations by effectively foreclosing its borders to overseas internet gambling services. It won at both the panel and the appellate levels. However, to this date, it has been unable to secure compliance by the U.S.This paper considers cross retaliation" by suspending intellectual property rights under the Trade Related Intellectual Property Rights Agreement (hereafter TRIPS) as a viable remedy for developing countries such as Antigua that often find themselves at the receiving end of WTO inconsistent measures maintained by countries that are economically more powerful.Towards this end, it proposes a Tiered IP suspension model," where certain kinds of Intellectual Property (hereafter IP) are targeted first for suspension before others, depending on the ease of objectively ascertaining the harm caused by the unauthorized use of such IP and/or the potential to induce compliance by the defaulting state. Illustratively, copyrights over sound recordings that have established rates for public performance are targeted first. If working with this tier of IP subject matter does not yield desired results, then the complaining state moves on to other IP where it is relatively more difficult to compute the loss caused to the IP owner (such as pharmaceutical patents) but which may be a more powerful tool to induce compliance. Such a model could be useful for a large number of developing countries, such as India and Brazil, that often find that, despite WTO victories, scofflaw states such as the U.S. and EU fail to comply. Towards this end, this paper offers a very concrete development" oriented international trade law remedy.
Taming of the Flu: Working Through the Tamiflu Patents in India
No full text113-124With an impending Avian influenza or bird flu pandemic, the issue of patents and public health has once again taken centre stage. Oseltamivir (known by its brand name ‘Tamiflu’), a patented antiviral pill, has emerged as the world's first line of defence against bird flu. A key priority for most nations is to create sufficient stockpiles of this pill that can then be easily distributed and administered during a pandemic. Keeping this end in mind, this paper explores the patent position in India and looks at ways to work around a patent, should one issue in future, to accelerate access in the event of a pandemic. The paper recommends various strategies for creating an optimal and affordable stockpile and calls on the government to take a more definite stand in the matter
Block Me Not: How “Essential” are Patented Genes
No full text334-358If the patented gene is not absolutely essential for use by a downstream researcher, in that there are substitutes available to work with or ways in which the patent in question could be circumvented, clearly the patented gene will not block the downstream researcher. In this sense, while the first part of the title, “Block Me Not,” expresses the blocking concern in general (the thousand-mile journey), the latter part, “How ‘Essential’ Are Patented Genes?” is the more specific question that this article seeks to address (the first step in this long and arduous journey
Block Me Not: Are Patented Genes \u27Essential Facilities\u27?
Get PDFThe biopharmaceutical industry is characterized by the ‘cumulative innovation’ paradigm, wherein the discovery of a gene sequence is only the first step. In order to convert such sequence information into viable products, tests and cures for genetic conditions and diseases, vast amounts of additional time, effort and money have to be spent. It is feared that patents over upstream gene sequences may ‘block’ further downstream research and consequently adversely impact drug discovery, as many diseases today are known to have genetic origins.
This ‘blocking’ or ‘restricted access’ issue has been the subject of several important papers and a wide array of solutions have been suggested. However not many authors have suggested looking to the ‘doctrine of essential facilities’ as a potential solution. This doctrine stipulates that in certain circumstances, a monopolist in control of an ‘essential facility’ (gene sequences) can be ordered to grant access to its facility to others who may then go on to identify useful products/services.
Even amongst the few authors that have suggested an application of this doctrine, the treatment has been sparse¾none of them have focussed on the most fundamental aspect of this doctrine, namely the concept of ‘essentiality’ or ‘indispensability’. Consequently, this paper seeks to fill this gap by asking: ‘how essential is a patented gene?’ The paper will demonstrate that although it is difficult to invent around patented genes, it is not impossible-viable substitutes do exist. To this extent, not all patented genes would quality as ‘essential’ for the purposes of the application of the essential facilities doctrine.
The paper concludes by noting that an antitrust remedy cannot be a panacea to resolve the blocking or restricted access issue for all time to come. Rather, if the blocking issue becomes pervasive, it may be more prudent to devise a more focussed remedy
India’s Tryst With Trips: The Patents (Amendment) Act, 2005
No full textThe Patents (Amendment) Act, 2005 introduces pharmaceutical product patents in India for the first time. This Act attempts to balance out competing interests of a variety of stakeholders, including domestic generic medicine producers, foreign multinational pharmaceutical companies and civil society groups concerned with access to medicines. Although this dexterous manoeuvring around competing interests deserves praise, the net result of such a compromise has been a lack of clarity in the law. While highlighting the key aspects of the 2005 amendments and this lack of clarity, this article also focuses on the vexed issue of the likely impact of the new regime on access to medicines. It notes that the provisions as they stand now could be interpreted in a manner that would leave considerable scope for the continued production of some generics. Whether these provisions would be so interpreted remains to be seen
Popping Patented Pills: Europe and a Decade\u27s Dose of TRIPS
Get PDFThis paper considers some features of Europe\u27s approach to medicine, public health and patents as it has developed during the decade since TRIPs came into force. It then reviews what rights users have in relation to such patents and what duties right holders may owe users. The following issues are discussed: 1. How patents on medicines are viewed in Europe, 2. How TRIPs has affected European law, 3. How bilateral agreements since TRIPs have affected Europe, 4. How user rights should be viewed under TRIPs, 5. Whether patents in the public health field are a special case
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Outsourcing Bayh-Dole to India: Lost in Transplantation?
No full textDebates about the commercialization of academic research have plagued mankind for at least as long as the authors have been around in this world. Proponents of commercialization argue that, like all else in today’s capitalistic world, academia and research ought to be subjected to market forces. Those against the motion decry the prostitution of what was once a noble ideal-that is, the purity of research and the pursuit of knowledge for its own sake.1
[1] For an overview of this debate, see generally Janice Newson, The Corporate-Linked University: From Social Project to Market Force, 23 CAN. J. COMM. 107 (1998). See alsoJoshua B. Powers, Commercializing Academic Research: Resource Effects on Performance of University Technology Transfer, 74 J. HIGHER EDUC. 26-27 (2003). David Bridges notes, “There is scarcely a university in the UK whose academic freedom has not been compromised by its funding arrangements.” David Bridges, Research for Sale: Moral Market or Moral Maze?, 24 BRIT. EDUC. RES. J. 593 (1998)
India’s New IP Policy: A Bare Act?
No full textAmidst much fanfare, the Indian government unleashed an Intellectual Property Rights (“IPR”) policy around two years ago. This paper aims at the first ever comprehensive assessment of this policy, its purported rationale and implications. It argues that the policy is a shoddily drafted and poorly conceptualised document, which is resting on empirically unproven intellectual property (“IP”) assumptions. It is more faith-based than fact-based and endorses a fairly formalistic view of IP, taking it to be an end in itsel
Ducking TRIPS in India: A Saga Involving Novartis and the Legality of Section 3(D)
No full textThis paper is an evaluation of the decision in Novartis AG v. Union of India, where the Madras High Court decided on both, the constitutionality of s. 3(d) of the Indian Patents Act, 1970 and its compatibility with the TRIPS regime. The authors agree with the Court insofar as the court upheld the constitutionality of the section. They are, however, critical of the Court\u27s decision to \u27duck\u27 out of deciding TRIPS compatibility on jurisdictional grounds. The authors disagree with the reasoning and contractual framework within which the Court found it had no jurisdiction, and posit that principles of constitutional law ought to have been used instead. It is argued that although the Madras High Court had the jurisdiction to adjudicate the present dispute, given the dualist approach of the Indian legal system in the enforcement of treaty obligations, it could not have in any event enforced TRIPS obligations
The End of Exclusivity: Towards a Compensatory (Patent) Commons
No full textAbstract:
In a seminal piece penned over four decades ago, Calabresi and Melamed theorised a legal remedies framework that contrasted “property rules” with “liability” rules.
Given the various woes associated with patent exclusivities, I draw on this influential “remedies” framework to suggest that we are on the cusp of a paradigm shift, where property rules are yielding to liability rules in a significant way.
Some of the factors contributing to this paradigm shift are as below: An increasing fragmentation of the innovation ecosystem, where the inventor, the innovator and the marketer/distributor of the innovative products/services are often distinct entities, who operate under licensing arrangements. Closely following from the above point, the increasing ease with which IP is valued and traded in the market and the emergence of a market for IP. The onset of judicial compulsory licenses and ongoing royalties.
The last factor is particularly important, and I predict that courts in future are more likely to deny injunctions on the ground that patent injury is compensable in monetary terms. The latest decision of the US CAFC (Court of Appeals for the Federal Circuit) in Nichia vs Everlight is testament to this sentiment.
I argue that developing countries in particular may find a compensatory liability model attractive, as it helps them retain the space for technological imitation, and blunt the egregious externalities associated with patent exclusivity in terms of healthcare costs and the like.
In the ultimate analysis, a more pervasive compensatory liability regime takes us closer to the idea of what I label as a “compensatory (innovation) commons”
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