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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
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)
Themes
How patents operates? Patents vrs public policy: coherence Tools for innovation Checks and balances National innovation policies Incoherence? Challenges
How patents operate? Incentives vrs monopoloy
Patents vrs public policy: coherence
Development relationship Role of state
Stimulate innovation Create a competitive environment Curtail monopolistic practises International obligations
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…
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
Supportive Patent-related tools: Triggering innovation
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
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
FACTORS: Innovation vrs accessibility and availability
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
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
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
Examples of incoherence
incoherence ?
incoherence ?
incoherence?
incoherence?
incoherence?
incoherence?
Challenges
Lack of national coordination Lack of legislative framework lack of a regional and international
agenda Free Trade and TRIPS-Plus agreements
22
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
