Innovation, Intellectual Property, and Development: A Better Set of Approaches for the 21st Century

This paper aims to provide an intellectual basis to think about the relationship between development, intellectual property and innovation; where we currently are and what alternatives are available. For the most part, we are concerned less with the implications of current IP laws for the advanced countries as we are with their impact on developing countries. We focus here not only on the current pathologies of the system and on potential alternative ways to tackle its most egregious excesses; but on a more positive note, on what kind of "system" would best promote development and well-being in the developing world. We are looking for a world with new and better rules for intellectual property. Just as some have begun to think about re-writing the rules of the American economy to ensure a more just and efficient system, the time is ripe for doing the same for the global economy, especially with regard to the IP system

Harmonization Without Consensus: Critical Reflections on Drafting a Substantive Patent Law Treaty

In this Article, we contend that the World Intellectual Property Organization\u27s proposed Substantive Patent Law Treaty (SPLT) is premature. Developing countries are struggling to adjust to the heightened standards of intellectual property protection required by the TRIPS Agreement of 1994. With TRIPS, at least, these countries obtained side payments (in the form of trade concessions) to offset the rising costs of knowledge products. A free-standing instrument, such as the SPLT, would shrink the remaining flexibilities in the TRIPS Agreement with no side payments and no concessions to the catch-up strategies of developing countries at different stages of technological advancement. More controversially, we argue that a deep harmonization would boomerang against even its developed country promoters by creating more problems than it would solve. There is no vision of a properly functioning patent system for the developed world that commands even the appearance of a consensus. The evidence shows, instead, that the worldwide intellectual property system has entered a brave new scientific epoch, in which experts have only tentative, divergent ideas about how best to treat a daunting array of new technologies. The proposals for reconciling the needs of different sectors, such as information technology and biotechnology, pose hard, unresolved issues at a time when the costs of litigation are rising at the expense of profits from innovation. These difficulties are compounded by the tendency of universities to push patenting up stream, generating new rights to core methodologies and research tools. As new approaches to new technologies emerge in different jurisdictions, there is a need to gather empirical evidence to determine which, if any, of these still experimental solutions are preferable over time. Our argument need not foreclose other less intrusive options and measures surveyed in the Article that can reduce the costs of delaying harmonization. However, the international community should not rush to freeze legal obligations regarding the protection of intellectual property. It should wait until economists and policymakers better understand the dynamics of innovation and the role that patent rights play in promoting progress and until there are mechanisms in place to keep international obligations responsive to developments in science, technology, and the organization of the creative community

Intellectual Property Management in Health and Agricultural Innovation: A Handbook of Best Practices, Vol. 1

Prepared by and for policy-makers, leaders of public sector research establishments, technology transfer professionals, licensing executives, and scientists, this online resource offers up-to-date information and strategies for utilizing the power of both intellectual property and the public domain. Emphasis is placed on advancing innovation in health and agriculture, though many of the principles outlined here are broadly applicable across technology fields. Eschewing ideological debates and general proclamations, the authors always keep their eye on the practical side of IP management. The site is based on a comprehensive Handbook and Executive Guide that provide substantive discussions and analysis of the opportunities awaiting anyone in the field who wants to put intellectual property to work. This multi-volume work contains 153 chapters on a full range of IP topics and over 50 case studies, composed by over 200 authors from North, South, East, and West. If you are a policymaker, a senior administrator, a technology transfer manager, or a scientist, we invite you to use the companion site guide available at http://www.iphandbook.org/index.html The site guide distills the key points of each IP topic covered by the Handbook into simple language and places it in the context of evolving best practices specific to your professional role within the overall picture of IP management

Data Exclusivities and the Limits to TRIPS Harmonization

2019 marks the silver anniversary of the WTO TRIPS Agreement. Policymakers and commentators remain deeply divided about the strengths and limitations of this agreement. On the one hand, they marvel at its success in establishing international minimum standards for the protection and enforcement of intellectual property rights. On the other hand, they widely criticize the agreement for imposing high one size fits all standards upon developing countries.Regardless of one\u27s perspective, the harmonization project advanced by the TRIPS Agreement, and continued through TRIPS-plus bilateral, regional and plurilateral agreements, has been at the forefront of the international intellectual property debate. While this article is interested in exploring this continuously controversial project, the discussion will focus on a topic that international intellectual property scholars have underexplored: the limits to TRIPS harmonization.To help examine these limits, this article focuses on the protection of undisclosed test or other data for pharmaceutical and agrochemical products. It begins by discussing issues on which the TRIPS negotiating parties had achieved consensus or had failed to do so. The article then examines the negotiation of new international minimum standards under the TPP Agreement, the proposed RCEP Agreement and the recently completed United States–Mexico–Canada Agreement (USMCA).The article continues to identify three sets of additional complications that have affected the efforts to develop international minimum standards at both the multilateral and nonmultilateral levels. Specifically, the article examines the arrival of new technologies, new politics and new regimes. It concludes by drawing six distinct lessons regarding the TRIPS harmonization project

The Access to Knowledge Mobilization and the New Politics of Intellectual Property

Intellectual property law was once an arcane subject. Today it is at the center of some of the most highly charged political contests of our time. In recent years, college students, subsistence farmers, AIDS activists, genomic scientists, and free-software programmers have mobilized to challenge the contours of intellectual property (IP) law. Very recently, some from these groups have begun to develop a shared critique under the umbrella of access to knowledge (A2K). Existing accounts of the political economy of the field of IP have suggested that such a mobilization was unlikely. This Article takes the emergence of the A2K mobilization as an opportunity to develop a richer and less deterministic account of the contemporary politics of IP. It draws upon frame mobilization literature, which illuminates the role that acts of interpretation play in instigating, promoting, and legitimating collective action. The frame-analytic perspective teaches that before a group can act it must develop an account of its interests and theorize how to advance these interests. These acts of interpretation are both socially mediated and contingent. Ideas can be a resource for those engaged in mobilization, but one that is not fully in their control. Frames thus can lay the scaffolding for a countermovement even as they pave the way for a movement\u27s success. Law is a key location for framing conflicts because it provides groups with symbolic resources for framing, and because groups struggle within the field of law to gain control over law\u27s normative and instrumental benefits. Law thus exerts a gravitational pull on framing processes. Engagement with law can influence a group\u27s architecture, discourse, and strategies, and can also create areas of overlapping agreement and as importantly-a language of common disagreement between opposing groups. The Article closes by suggesting some implications of this point, which should be of interest to those who design legal institutions and who engage in social mobilization. Most intriguing, perhaps, is the role it suggests that law may play in the creation of global publics and polities

Enforcement, Enforcement, What Enforcement?

The protection and enforcement of intellectual property rights has been a very hot topic in the past few years. From the introduction of the PROTECT IP Act of 2011 to the adoption of the Anti-Counterfeiting Trade Agreement (ACTA) to a recent U.S.-China dispute before the WTO, the topic has dominated policy debates at both the domestic and international levels. While most policymakers, industry representatives, and commentators have recognized the critical importance of intellectual property enforcement, there has been neither philosophical nor normative consensus on the appropriate norms in this area. Like three blind men trying to describe an elephant, different people have different conceptions of what enforcement comprises, which enforcement standards governments should implement, and how much these implementation efforts should cost. Delivered as the Inaugural Franklin Pierce Center for Intellectual Property Distinguished Speaker in Intellectual Property Lecture, this Article outlines three different types of common enforcement challenges: crossborder enforcement, digital enforcement, and transborder enforcement. It then examines one recent effort to address these challenges: the development of ACTA. It explores why this highly controversial agreement is unlikely to provide stronger global enforcement of intellectual property rights. In view of the many flaws inherent in ACTA, this Article suggests four guiding principles that can be used to develop a better and more effective intellectual property enforcement treaty. It concludes with four alternative enforcement strategies that policymakers can use to supplement or substitute for the treaty-based approach

Enforcement, Enforcement, What Enforcement?

The protection and enforcement of intellectual property rights has been a very hot topic in the past few years. From the introduction of the PROTECT IP Act of 2011 to the adoption of the Anti-Counterfeiting Trade Agreement (ACTA) to a recent U.S.-China dispute before the WTO, the topic has dominated policy debates at both the domestic and international levels. While most policymakers, industry representatives, and commentators have recognized the critical importance of intellectual property enforcement, there has been neither philosophical nor normative consensus on the appropriate norms in this area. Like three blind men trying to describe an elephant, different people have different conceptions of what enforcement comprises, which enforcement standards governments should implement, and how much these implementation efforts should cost. Delivered as the Inaugural Franklin Pierce Center for Intellectual Property Distinguished Speaker in Intellectual Property Lecture, this Article outlines three different types of common enforcement challenges: crossborder enforcement, digital enforcement, and transborder enforcement. It then examines one recent effort to address these challenges: the development of ACTA. It explores why this highly controversial agreement is unlikely to provide stronger global enforcement of intellectual property rights. In view of the many flaws inherent in ACTA, this Article suggests four guiding principles that can be used to develop a better and more effective intellectual property enforcement treaty. It concludes with four alternative enforcement strategies that policymakers can use to supplement or substitute for the treaty-based approach

The political economy of pharmaceutical patents: US sectional interests and the African group at the WTO: a case study in international trade decision-making and the possibility for change

The public international backlash against the TRIPS Agreement and the global pharmaceutical industry that followed in the wake of the March 2001 lawsuit brought by 39 pharmaceutical companies against the government of South Africa prompted a critical investigation into how the current order came into being and how it might be in a process of changing. To do this the thesis follows Cox’s insight in Critical IPE that each successive historical structure generates the contradictions and points of conflict that bring about its transformation (Cox, 1995: 35). The research therefore first looks at the making of the patent provisions in TRIPS as a case study in institutional capture by the transnational drug industry (TDI), dominated by American interests. This question is developed theoretically as well as empirically by first developing a theoretical framework that explains continuity in the global political economy (GPE) as a way of intimating how the TDI was able to secure all of its demands for pharmaceutical patents under TRIPS despite the prevalence of conflict and opposition from developing countries in the Uruguay Round (UR), and notwithstanding the single undertaking of the UR package. The thesis then examines the negotiations on patents in the UR to determine the nature of decision-making and to probe the questions of conflict and contradictions in the present that provide a framework of analysis on the shakiness of the prevailing order. The thesis then looks at how, why and under what circumstances the initial ‘capture’ of TRIPS by the TDI was arguably successfully challenged by probably the weakest global economic actor, the African Group (AG) at the WTO. Specifically looking at the role of conflict in change this question probes further points of conflict and contradictions in the present to set the scene for the wide scale offensive against TRIPS as a result of its implications for access to healthcare in the poorest countries which already suffer overwhelmingly from a high disease burden. The post-TRIPS challenge mounted by transnational civil society and the AG (the two constituting a counter-society) take the thesis from its analysis of continuity in the GPE, towards theorising the circumstances under which the prevailing historical structure can at least partially be transcended to render legitimate the demands of the poor. The thesis advances its contribution, both theoretically and empirically, to Critical International Political Economy, particularly as it concerns the work of Robert Cox