Mandatory Licensing Under Patent Law and Competition Law: Different Concerns, Complementary Roles

The purpose of this chapter is limited to defining the differences of the functions and of the operation of compulsory licences, which typically are available under patent law, on one hand, or, on the other, are imposed as a matter of enforcing the antitrust laws. The thesis of this contribution is that each of patent law’s compulsory licensing rules does (and ought to) follow its own distinct rationale. Their common denominator is that they are specific to the systematic operation of patent protection as an incentive mechanism for innovation. By contrast, competition law constitutes part of the framework regulation of the market. Where its application results in imposing licensing obligations on patentees, it does so in order to correct an unjustified restriction of competition. This remedial function of antitrust-related licensing obligations is complementary to but different from patent law’s rules on compulsory licensing. The different functions of system-supportive or system-intrinsic mandatory licensing rules and competition-related obligations also mean that before introducing new or broadening existing provisions on compulsory licences a proper diagnosis has to be made of the ill that they are supposed to cure

Clean Energy Trade Governance: Reconciling Trade Liberalism and Climate Interventionism?

Scaling-up clean energy is vital to global efforts to address climate change. Promoting international trade in clean energy products (e.g. wind turbines, solar panels) can make an important contribution to this end through business and market expansion effects. If ratified, the landmark Paris COP21 Agreement will commit states to firmer climate actions, this necessarily requiring them to strengthen their promotion of clean energy technologies. Well over a hundred countries already have active policies in this area, many including industrial policy measures that impact on the international competitiveness of their clean energy sector. At the same time, governments have gradually liberalised their clean energy trade regimes, and large producers are negotiating an Environmental Goods Agreement (EGA). Clean energy trade is expanding and disputes among nations in this sector are growing. The World Trade Organisation (WTO) still has limited ‘policy space’ for climate action. Meanwhile, the United Nations Framework Convention on Climate Change (UNFCCC) still had narrow and infrequent connections with trade matters. Moreover, WTO-UNFCCC engagement on trade-climate issues overall has been largely confined to information sharing and secretariat-level dialogue. This paper explores the extent to which clean energy trade is currently governed, where certain governance gaps and deficiencies exists, and argues why addressing them could help expand trade in clean energy products. It also contends that the most fundamental challenge for the future governance of clean energy trade concerns how to reconcile ramped-up interventionist climate action with an essentially liberal trade order

Development Bridge Over Troubled Intellectual Property Water

Written in celebration of Pedro Roffe\u27s life and achievements, this chapter captures the many valuable contributions he has made in his three decades at the United Nations Conference on Trade and Development (UNCTAD) and a decade and a half at the International Centre for Trade and Sustainable Development (ICTSD). It focuses on three sets of development bridges that he has built and helped build in the intellectual property arena, drawing illustrations from the author\u27s personal encounters with him and his organizations.This chapter begins with bridges that allow us to revisit the past developments in the international intellectual property regime. It then turns to bridges that help provide a unique vantage point for taking stock of current developments and recognizing what is new and important in this regime. The chapter concludes with bridges that help advance the debate on intellectual property and global development while reorienting us towards a better future