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PATENT SYSTEMS IN DEVELOPING COUNTRIES AND LDCS: THE NEED FOR COHERENCE BETWEEN PATENT LAW AND PUBLIC POLICIES: INNOVATION, HEALTH AND TRADE 2 nd WIPO Inter-Regional Meeting on South-South Cooperation on Patents, Trademarks, Geographical Indications, Industrial Designs and Enforcement Cairo 6-8 May 2013 Dr. Mohammed El Said (UCLAN, UK)

2 nd WIPO Inter-Regional Meeting on South- South Cooperation on Patents, Trademarks, Geographical Indications, Industrial Designs and Enforcement Cairo

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Page 1: 2 nd WIPO Inter-Regional Meeting on South- South Cooperation on Patents, Trademarks, Geographical Indications, Industrial Designs and Enforcement Cairo

PATENT SYSTEMS IN DEVELOPING COUNTRIES AND LDCS: THE NEED

FOR COHERENCE BETWEEN PATENT LAW AND PUBLIC POLICIES:

INNOVATION, HEALTH AND TRADE

2nd WIPO Inter-Regional Meeting on South-South Cooperation on Patents,

Trademarks, Geographical Indications, Industrial Designs and Enforcement

Cairo 6-8 May 2013Dr. Mohammed El Said

(UCLAN, UK)

Page 2: 2 nd WIPO Inter-Regional Meeting on South- South Cooperation on Patents, Trademarks, Geographical Indications, Industrial Designs and Enforcement Cairo

Themes

How patents operates? Patents vrs public policy: coherence Tools for innovation Checks and balances National innovation policies Incoherence? Challenges

Page 3: 2 nd WIPO Inter-Regional Meeting on South- South Cooperation on Patents, Trademarks, Geographical Indications, Industrial Designs and Enforcement Cairo

How patents operate? Incentives vrs monopoloy

Page 4: 2 nd WIPO Inter-Regional Meeting on South- South Cooperation on Patents, Trademarks, Geographical Indications, Industrial Designs and Enforcement Cairo

Patents vrs public policy: coherence

Development relationship Role of state

Stimulate innovation Create a competitive environment Curtail monopolistic practises International obligations

Page 5: 2 nd WIPO Inter-Regional Meeting on South- South Cooperation on Patents, Trademarks, Geographical Indications, Industrial Designs and Enforcement Cairo

Patents vrs public policy: international coherence

Under international law and the TRIPS Agreement, TRIPS Preamble Recognizing the underlying public policy objectives

of national systems for the protection of IP, including developmental and technological objectives;

TRIPS Art. 7: The protection and enforcement of IPRs should contribute to the promotion of technological innovation and to the transfer and dissemination of technology…to the mutual advantage of producers and users of technological knowledge…

TRIPS Art 8.1:…in formulating or amending their laws and regulations, adopt measures necessary to protect public health and nutrition, and to promote the public interest in sectors of vital importance to their socio-economic and technological development…

Page 6: 2 nd WIPO Inter-Regional Meeting on South- South Cooperation on Patents, Trademarks, Geographical Indications, Industrial Designs and Enforcement Cairo

National coherence Tools: Patent-related

POLICY SPACE: wide incorporation & interpretation of flexibilities: Transition periods if applicable Compulsory Licensing +

guidelines Parallel importation Patentability criteria (minimize

evergreening) Exceptions from patent

protection Exemptions from patent

protection Patent oppositions (pre and

post grant) Enforcement obligations

Page 7: 2 nd WIPO Inter-Regional Meeting on South- South Cooperation on Patents, Trademarks, Geographical Indications, Industrial Designs and Enforcement Cairo

Supportive Patent-related tools: Triggering innovation

Page 8: 2 nd WIPO Inter-Regional Meeting on South- South Cooperation on Patents, Trademarks, Geographical Indications, Industrial Designs and Enforcement Cairo

Supportive Patent-related tools

Innovation incentives (example neglected disease) Open source drug discovery and development Grants Prizes Advance market commitments Patent pools Tax breaks for companies Priority review voucher A global binding framework for R&D for

neglected diseases Patents information

Page 9: 2 nd WIPO Inter-Regional Meeting on South- South Cooperation on Patents, Trademarks, Geographical Indications, Industrial Designs and Enforcement Cairo

National coherence Tools : outside the Patent regime

Creation of checks and balances IP as one element, other factors:

Role of competition law (deter, correct, balance) Abuse, Mergers, Prevention of generics, Bids,

cartel…etc Patent offices Pension schemes, national health insurance

programs, national innovation agendas, procurement…etc

Role of Judiciary Access to information laws

Page 10: 2 nd WIPO Inter-Regional Meeting on South- South Cooperation on Patents, Trademarks, Geographical Indications, Industrial Designs and Enforcement Cairo

FACTORS: Innovation vrs accessibility and availability

Page 11: 2 nd WIPO Inter-Regional Meeting on South- South Cooperation on Patents, Trademarks, Geographical Indications, Industrial Designs and Enforcement Cairo

National innovation policies (case study 1 Singapore)

Cautious note In April 2013, Singapore revealed its 10

years plan to be a global IP Hub Over 200 IP professionals were consulted

over a year. long term based on comparative

advantage

Page 12: 2 nd WIPO Inter-Regional Meeting on South- South Cooperation on Patents, Trademarks, Geographical Indications, Industrial Designs and Enforcement Cairo

Elements of strategy 1- Strategic outcomes

IP transactions and management: using Singapore as a base to manage and transact IP

Quality IP filings: companies register and utilise their IP, services and infrastructure, and leverage Singapore as a gateway to secure IP protection in key markets worldwide; and

IP dispute resolution: IP disputes brought for expeditious/effective resolution through litigation/ADR .

2- Supporting Enablers: To achieve, should develop: Skilled manpower : networked to the region and

beyond, to effectively serve the international needs of companies;

A conducive and progressive environment for IP activities, to strengthen international acclaim of Singapore as a vibrant IP hub and establish it as leader in IP

Page 13: 2 nd WIPO Inter-Regional Meeting on South- South Cooperation on Patents, Trademarks, Geographical Indications, Industrial Designs and Enforcement Cairo

National innovation policies (case 2 china)

Exploring creative options nationally = Professors are likely to win tenures Those who file patents are likely to earn

residence permits to live in desirable cities For some types of patents, government pays

cash bonuses Other types government pays filing fees Corporate tax exemptions up to 25%, More likely to government contracts Utility models filing

Page 14: 2 nd WIPO Inter-Regional Meeting on South- South Cooperation on Patents, Trademarks, Geographical Indications, Industrial Designs and Enforcement Cairo

Examples of incoherence

Page 15: 2 nd WIPO Inter-Regional Meeting on South- South Cooperation on Patents, Trademarks, Geographical Indications, Industrial Designs and Enforcement Cairo

incoherence ?

Page 16: 2 nd WIPO Inter-Regional Meeting on South- South Cooperation on Patents, Trademarks, Geographical Indications, Industrial Designs and Enforcement Cairo

incoherence ?

Page 17: 2 nd WIPO Inter-Regional Meeting on South- South Cooperation on Patents, Trademarks, Geographical Indications, Industrial Designs and Enforcement Cairo

incoherence?

Page 18: 2 nd WIPO Inter-Regional Meeting on South- South Cooperation on Patents, Trademarks, Geographical Indications, Industrial Designs and Enforcement Cairo

incoherence?

Page 19: 2 nd WIPO Inter-Regional Meeting on South- South Cooperation on Patents, Trademarks, Geographical Indications, Industrial Designs and Enforcement Cairo

incoherence?

Page 20: 2 nd WIPO Inter-Regional Meeting on South- South Cooperation on Patents, Trademarks, Geographical Indications, Industrial Designs and Enforcement Cairo

incoherence?

Page 21: 2 nd WIPO Inter-Regional Meeting on South- South Cooperation on Patents, Trademarks, Geographical Indications, Industrial Designs and Enforcement Cairo

Challenges

Lack of national coordination Lack of legislative framework lack of a regional and international

agenda Free Trade and TRIPS-Plus agreements

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Final thoughts

“In a global economy, a global system of intellectual property rights is needed.

This system must reflect the needs both of countries that are developing and

those that have developed. The problem is similar to the one concerning which types of knowledge should be in the

public domain in the developed world’’.Lester Thurow, 1997

Page 23: 2 nd WIPO Inter-Regional Meeting on South- South Cooperation on Patents, Trademarks, Geographical Indications, Industrial Designs and Enforcement Cairo

Thank you Mel-

[email protected]