International Intellectual Property, Access to Health Care, and Human Rights: South Africa v. United States

This Article examines the question of access to patented medicines in international law. It analyzes the extent to which international agreements may lawfully limit affordable versions of these medicines that may be available through parallel imports or compulsory licensing procedures. It considers the concept of intellectual property rights from a national and international perspective to determine how these rights must be sensitive to matters of national sovereignty when extraordinary, life-threatening diseases afflict societies in catastrophic ways. This Article suggests that viewing property (including intellectual property) as a human right requires that its scope be delimited and understood in the context of other human rights. In short, property and human rights should be understood as complementary, rather than antagonistic ideas. This Article also reviews the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) in light of the contemporary standards of construction and interpretation applicable to agreements of international human rights law

It Should Be a Breeze: Harnessing the Potential of Open Trade and Investment Flows in the Wind Energy Industry

This working paper maps out the structure and value chains of the wind industry, analyzes the wind industry's increasing global integration via cross-border trade and investment flows, and offers recommendations to policymakers for the design of investment and trade policies to help realize wind energy's potential. We find that demand for wind energy through longterm government support policies creates the basis for local supply of wind capital equipment and services and associated local job creation; policies that put a price on carbon will further help to make wind energy more competitive and increase the overall demand for turbines and equipment. Cross-border investment rather than trade is the dominant mode of the wind industry's global integration. Principal barriers to global integration are nontariff trade barriers and formal and informal barriers that distort firms' investment decisions. These include local content requirements, divergent national industrial standards and licensing demands, and in particular political expectations. Intellectual property accounts for only a very small part of cost in the wind industry, and wind technology is widely available for licensing. Intellectual property rights are correspondingly not a major impediment for market participation. Credible long-term commitments coupled with a reduction or elimination of existing barriers to cross-border trade and investment are necessary to harness the full potential of global integration in reducing wind industry prices and increase worldwide deployment of wind energy.Wind Energy, Renewable Energy Subsidies, Energy Policy, Global Industry Integration, Foreign Direct Investment, Carbon Emissions, Climate Change

Adequacy of the 1995 Antitrust Guidelines for the Licensing of Intellectual Property in Complex High Tech Markets

In 1995, the Department of Justice and the Federal Trade Commission adopted new guidelines for those wishing to license intellectual property rights without violating antitrust laws. Designed to provide clarity, these guidelines instead breed confusion because they misunderstand the nature of intellectual property markets and provide insufficient guidance in the most difficult areas. Section I of this article will discuss the basic provisions of the guidelines, especially their treatment of innovation markets. It argues that government enforcers should focus primarily on activity that creates entry barriers. Understanding the use and misuse of licensing is the key to analyzing barriers in the IP field. The remainder of the article therefore examines three common types of license misuse. Section II considers patent holders\u27 potential liability for refusing to grant licenses to competitors. Section III looks at the effect of setting industry standards and at patent holders\u27 misconduct during industry standard setting. Section N analyzes patent accumulation through devices such as pooling and cross-licensing. The article concludes that the government should further amend the Guidelines to provide clearer rules for use of IP licenses

Exit, voice and loyalty: Strategic behavior in standards development organizations

The protection of intellectual property rights and its limits has spurred controversy in the standardization ecosystem in recent times. While conflicting interests in standard-setting abound over a wide range of pertinent aspects, considerations regarding the inclusion and subsequent treatment of proprietary elements in a technical standard hold the lion’s share of concerns that Standards Development Organizations (SDOs) have to deal with. These concerns revolve around the balance between the interests of innovators and implementers of new technologies. In this respect, SDOs adopt patent policies, which members have to observe in order to participate in SDOs’ activities. Similarly to other rules governing the work of SDOs, patent policies may be modified following the prescribed procedures. However, any subsequent changes to an organization’s operational framework, including its intellectual property rules, may distort prior expectations and lock in members to rules that they never intended to abide by. Against this backdrop, this Article seeks to explore how SDOs’ members respond to the amendments of intellectual property rules by offering a taxonomy of strategies that may be adopted by members opposing modifications based on the exit and voice theory by Hirschman (1970). Drawing upon the example of the Institute of Electrical and Electronics Engineers (IEEE) revised Patent Policy, which took effect in 2015, the Article explores how SDO members respond to instances of organizational distress such as an update of intellectual property policies within an SDO, using as proxies stakeholders’ willingness to commit to the new licensing rules and previous examples of strategies when misunderstandings around intellectual property arose. At a normative level, this Article further studies the effect that such changes may have on the nature and structure of a given industry and offers a novel classification of reactions to turning points in the standards development realm, thereby contributing to the currently underdeveloped body of literature on strategic behavior in technological standardization

Intellectual property rights in a knowledge-based economy

Intellectual property rights (IPR) have been created as economic mechanisms to facilitate ongoing innovation by granting inventors a temporary monopoly in return for disclosure of technical know-how. Since the beginning of 1980s, IPR have come under scrutiny as new technological paradigms appeared with the emergence of knowledge-based industries. Knowledge-based products are intangible, non-excludable and non-rivalrous goods. Consequently, it is difficult for their creators to control their dissemination and use. In particular, many information goods are based on network externalities and on the creation of market standards. At the same time, information technologies are generic in the sense of being useful in many places in the economy. Hence, policy makers often define current IPR regimes in the context of new technologies as both over- and under-protective. They are over-protective in the sense that they prevent the dissemination of information which has a very high social value; they are under-protective in the sense that they do not provide strong control over the appropriation of rents from their invention and thus may not provide strong incentives to innovate. During the 1980s, attempts to assess the role of IPR in the process of technological learning have found that even though firms in high-tech sectors do use patents as part of their strategy for intellectual property protection, the reliance of these sectors on patents as an information source for innovation is lower than in traditional industries. Intellectual property rights are based mainly on patents for technical inventions and on copyrights for artistic works. Patents are granted only if inventions display minimal levels of utility, novelty and non-obviousness of technical know-how. By contrast, copyrights protect only final works and their derivatives, but guarantee protection for longer periods, according to the Berne Convention. Licensing is a legal aid that allows the use of patented technology by other firms, in return for royalty fees paid to the inventor. Licensing can be contracted on an exclusive or non-exclusive basis, but in most countries patented knowledge can be exclusively held by its inventors, as legal provisions for compulsory licensing of technologies do not exist. The fair use doctrine aims to prevent formation of perfect monopolies over technological fields and copyrighted artefacts as a result of IPR application. Hence, the use of patented and copyrighted works is permissible in academic research, education and the development of technologies that are complimentary to core technologies. Trade secrecy is meant to prevent inadvertent technology transfer to rival firms and is based on contracts between companies and employees. However, as trade secrets prohibit transfer of knowledge within industries, regulators have attempted to foster disclosure of technical know-how by institutional means of patents, copyrights and sui-generis laws. And indeed, following the provisions formed by IPR regulation, firms have shifted from methods of trade secrecy towards patenting strategies to achieve improved protection of intellectual property, as well as means to acquire competitive advantages in the market by monopolization of technological advances.economics of technology ;

Open Source Licensing in Mixed Markets, or Why Open Source Software Does Not Succeed

The rivalry between developers of open source and proprietary software encourages open source developers to court users and respond to their needs. If the open source developer wants to promote her own open source standard and solutions, she may choose liberal license terms such as those of the Berkeley Software Distribution as proprietary developers will then find it easier to adopt her standard in their products. If she wants to promote the use of open source software per se, she may use more restrictive license terms such as the General Public License to discourage proprietary appropriation of her effort. I show that open source software that comes late into a market will be less likely than more innovative open source software to be compatible with proprietary software, but is also more likely to be made more accessible to inexperienced users.Open Source; Software; Standards; Compatibility; Network Effects; Duopoly; Mixed Markets; Intellectual Property; Copyright; Licensing

Maximizing Intellectual Property and Intangible Assets: Case Studies in Intangible Asset Finance

As innovative companies struggle to raise funds, intellectual property and intangible assets are providing alternative ways of financing innovation. But greater awareness of them as an asset class is needed. Raising that awareness is the focus of a new report from Athena Alliance, Maximizing Intellectual Property and Intangible Assets: Case Studies in Intangible Asset Finance by Ian Ellis, a former U.S. Department of Commerce official specializing in intellectual property and international trade. The report outlines increasing, but still nascent, means of financing innovation based on these assets in public, private and venture capital markets. As industry has invested capital in research and development to develop new technology and advance other creative activities, intellectual capital has become a valuable asset class, according to the paper. In response, firms specializing in intangible-based financing are springing up, using them to raise capital for the next round of innovation.The paper details equity, equity-debt, debt, and sale-leaseback transactions, both private and public, that have helped companies raise capital, based on careful, rigorous analysis and conservative underwriting standards. For example, the author notes that in 2000, there were two public deals using royalty securitization, raising $145 million. In 2007-08,$3.3 billion was raised in 19 deals.Unlike some of the exotic financial vehicles, however, the financial products discussed in this paper are some of the most basic financing mechanisms in business. The innovation is in recognizing the value of intangible assets for corporate finance. These new financial firms are using traditional financial techniques in new ways to help innovative companies.But more should be done.One important step would be developing sound, industry-wide, underwriting standards, according to the report. For example, Small Business Administration (SBA) rules permit its loans to be used for acquisition of intangible assets when buying on-going businesses. Rules are unclear on whether those assets can be used as collateral. The paper recommends that SBA work with commercial lenders to develop standards for using intangible assets as collateral.The report builds on earlier Athena Alliance papers, notably Intangible Asset Monetization: The Promise and the Reality

The Problem with FRAND: How the Licensing Commitments of Standard-Setting Organizations Result in the Misvaluing of Patents

Standard-setting organizations (SSOs) are bodies that oversee the development of technical standards. Technical standards are common technological designs that are used across a variety of platforms, for instance LTE, which is utilized throughout the mobile phone industry. Members of SSOs contribute different pieces of technology to an ultimate design, and if a patent covers the technology, it is called a standard-essential patent (SEP). SSOs require their members to license these patents to each other on fair, reasonable, and nondiscriminatory (FRAND) terms. This Note analyzes the FRAND requirement and the different ways that courts and private parties interpret it. The ambiguity of FRAND, combined with little guidance from SSOs, has led to patent licensing agreements that greatly misvalue these patents, as well as rampant uncertainty in technological industries about the value of this form of intellectual property. This Note suggests that SSOs assume a larger role in the analysis of SEPs by determining, at the very least, whether the patents declared as “essential” are truly essential to the standardized technology. If SSOs begin to implement patent valuation techniques into their review of SEPs, then members can get a fair return on their intellectual property, and some of the confusion surrounding FRAND can be allayed