Intellectual Property Rights and the Public Sector: Why Compulsory Licensing of Protected Technologies Critical for Food Security Might Just Work in China

The majority of people in the developed world have the luxury of never having to address food shortages and malnutrition. In developing countries, however, ensuring food security presents greater challenges. Agricultural biotechnology has the potential to alleviate many of the food crises occurring in developing countries. Unlike private sector corporations, public sector entities are creating genetically modified (“GM”) crops to ensure food security. However, the intellectual property rights (“IPRs”) to the many technologies required to create a single GM crop are often fragmented across the private and public sectors. Fragmentation of IPRs creates a “patent thicket” that increases the challenges of developing GM crops that are not restrained by freedom to operate complications. China has a successful agricultural biotechnology industry that is almost entirely public sector. Recently, China strengthened its intellectual property (“IP”) laws as a result of its accession to the World Trade Organization (“WTO”). Despite the beneficial effects of harmonizing IP laws among WTO member states, there exists a negative consequence of IP globalization as it pertains to China’s public sector-driven agricultural biotechnology industry. Stronger IP laws and enforcement will create an environment more favorable to the interests of foreign private sector entities. Any subsequent introduction of technologies used to create GM crops will result in the protection of such technologies under Chinese law, but without open availability under most circumstances. To reduce the potential frustration of its public sector, China should declare potential food shortages a national emergency. In doing so, China may require compulsory licensing of the technologies necessary to create GM crops essential for food security without violating its WTO obligations. Because the compulsory licenses would be granted only for selected technologies used to create GM crops, such licensing would reduce the negative effects of IPRs fragmentation without raising substantial concerns of compromised innovation resulting from parallel importation

The WTO and developing countries : the missing link of international distributive justice

This thesis demonstrates that no international distributive justice mechanism is operative in the World Trade Organization legal regime, and that SDT and GSP provisions do not compensate for this. It argues that the erga omnes partes distribution of the burden of compliance with WTO Agreements frustrates the economic development of the poor developing countries, and that this can be corrected by the distribution of the burdens of compliance on a distributive justice principle. A model climate law is advanced to demonstrate the practicability of applying that principle in the WTO context. The general charge is made that, absent a distributive justice principle in the WTO legal system, developing countries benefit from WTO Agreements only in the measure that they are already trade-capable, and that those Agreements often threaten their established wealth-producing institutions. It is argued that the status ‘developing countries’ cannot remain a self-designated status, but should correspond with GDP status. Specific charges are levelled against WTO Agreements’ failure to take account of the interests of developing countries: TRIPs provisions severely restrict the transfer of technology, and thereby frustrate emerging pharmaceutical industries; the DSM, based on Western legal tradition, imposes a burden of unfamiliarity on developing countries, and its enforcement system is generally not available to them; the GATS tolerates the friction between NT and MFN obligation and FTAs; the GATS and the TRIMs confer the right of one country to invest in another, in the absence of any validating customary international law, yet no WTO Agreement brings foreign-investment dispute settlement into the DSM, leaving the WTO tolerant of BITs and FTAs that nominate non-WTO tribunals for that purpose, despite evidence that many developing countries cannot sustain the financial penalties these tribunals impose.EThOS - Electronic Theses Online ServiceGBUnited Kingdo