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International International Governance of Governance of
PatentsPatents
Prof. Anil B. SurajProf. Anil B. Suraj
IIM BangaloreIIM Bangalore
April 2011April 2011
Session ObjectivesSession Objectives
To understand the basic concepts of To understand the basic concepts of global governance of IPRs – global governance of IPRs – especially within the WTO frameworkespecially within the WTO framework
To appreciate the working principles To appreciate the working principles of IP enforcement and dispute of IP enforcement and dispute settlementsettlement
““Interests” in Interests” in GlobalizationGlobalization
Rebuilding by “developed” economies Rebuilding by “developed” economies – UN, IBRD (WB), IMF, GATT/ITO– UN, IBRD (WB), IMF, GATT/ITO
Strategic incorporation of “developing” Strategic incorporation of “developing” nation concerns – UNCTAD & Part-IV nation concerns – UNCTAD & Part-IV GATTGATT
Building of “consensus” in WTOBuilding of “consensus” in WTO
WTO – Constitutional WTO – Constitutional PrinciplesPrinciples
Most Favoured Nation (MFN)Most Favoured Nation (MFN)
National TreatmentNational Treatment
One Member – One VoteOne Member – One Vote
Reverse Consensus RuleReverse Consensus Rule
WTO – Principles …WTO – Principles …
Single Undertaking – except in Plurilateral FormSingle Undertaking – except in Plurilateral Form
Dispute Settlement – multi-tiered structureDispute Settlement – multi-tiered structure
Enforcement – Sanctions and CountermeasuresEnforcement – Sanctions and Countermeasures
Supreme respect for Negotiations – at all Supreme respect for Negotiations – at all stagesstages
WTO – dilutes WTO – dilutes sovereignty?sovereignty?
Sovereignty vs. InterdependencySovereignty vs. Interdependency
Classification and recognition of core Classification and recognition of core principles of constitutional democracy:principles of constitutional democracy: Human rights; Human rights; Popular sovereignty; Popular sovereignty; Transparency; Transparency; Limited government; Limited government; Democracy; Democracy; Rule of law; Rule of law; Checks and balancesChecks and balances
Evolution of IPR regimeEvolution of IPR regime
Early 17th Century Monopolies StatuteEarly 17th Century Monopolies StatuteMaximum flexibility to national Maximum flexibility to national
governmentsgovernments
Paris Convention (1883); Berne Paris Convention (1883); Berne Convention (1886); Madrid Agreement Convention (1886); Madrid Agreement (1891) – for different forms of IPRs(1891) – for different forms of IPRsMinimum obligations but with flexibilitiesMinimum obligations but with flexibilitiesNational Treatment; Reciprocal obligationsNational Treatment; Reciprocal obligations
TRIPs Regime – Salient TRIPs Regime – Salient FeaturesFeatures
Basic and Founding PrinciplesBasic and Founding Principles MFN status; National TreatmentMFN status; National Treatment
Forms of IPRs and bases of protectionForms of IPRs and bases of protection Aiming for uniformityAiming for uniformity
Enforcement Mechanisms mandatedEnforcement Mechanisms mandated Civil and Criminal; Border measuresCivil and Criminal; Border measures
Special Provisions and Dispute Special Provisions and Dispute SettlementSettlement Accent on technology transfer & promotionAccent on technology transfer & promotion Non-violation ComplaintsNon-violation Complaints
TRIPs Regime …TRIPs Regime … TRIPs – common institutional framework for TRIPs – common institutional framework for
IPRs related trade concernsIPRs related trade concerns In-built flexibilities: Novartis matter in IndiaIn-built flexibilities: Novartis matter in India Complementary role of WIPO; Emerging RTAsComplementary role of WIPO; Emerging RTAs
Balance between removing incentives for Balance between removing incentives for counterfeit trade and facilitating legitimate counterfeit trade and facilitating legitimate tradetrade
Enforcement mechanismsEnforcement mechanisms Autonomy given to Member nations to “enforce Autonomy given to Member nations to “enforce
law in general” – no need for specific judicial law in general” – no need for specific judicial systemsystem
Principles of EnforcementPrinciples of Enforcement
Procedural fairness and equityProcedural fairness and equity Protection of confidentialityProtection of confidentiality
Evidentiary principles Evidentiary principles Use of adverse inference by some NationsUse of adverse inference by some Nations
Remedies through injunctions (ex parte), Remedies through injunctions (ex parte), damages, costs, disposal and destructiondamages, costs, disposal and destruction
Defendant safeguards – if process is abusedDefendant safeguards – if process is abused
Systemic Flexibilities – Systemic Flexibilities – Enforcement measuresEnforcement measures
Border enforcement measuresBorder enforcement measures CBEC – IPRs (Imported Goods) Enforcement Rules, 2007CBEC – IPRs (Imported Goods) Enforcement Rules, 2007
Single authority determinationsSingle authority determinations
Provisional measures and proceduresProvisional measures and procedures
Right holder being informedRight holder being informed
Suo motuSuo motu release of goods release of goods
De minimisDe minimis standards – non-commercial standards – non-commercial
Dispute Settlement Dispute Settlement ProcessProcess
Built on the bedrock of ConsultationsBuilt on the bedrock of Consultations
Panel + Appellate Review = special Panel + Appellate Review = special regard to Developing country and Third regard to Developing country and Third Party interestsParty interests
Outcomes are recommendations to DSBOutcomes are recommendations to DSB
ADRs in Dispute Settlement ProcessADRs in Dispute Settlement Process
Issues and ConcernsIssues and Concerns
Panel and Appeal need to only conclude Panel and Appeal need to only conclude on the inconsistency of measures – not on the inconsistency of measures – not HOW they could be made consistentHOW they could be made consistent Encourages non-compliance/delayed response?Encourages non-compliance/delayed response?
Appeal may – uphold, modify or reverse – Appeal may – uphold, modify or reverse – only the legal findings of the Panelonly the legal findings of the Panel Appeal limited only to issues of lawAppeal limited only to issues of law No remand powers upon factual inadequacyNo remand powers upon factual inadequacy
Panel & Appellate Panel & Appellate jurisdictionjurisdiction
Apex adjudication over Sovereign power?Apex adjudication over Sovereign power?
““Public” & political vs. “Private” economicsPublic” & political vs. “Private” economics
Free-Trade Constitution – an Free-Trade Constitution – an “Understanding” – being interpreted“Understanding” – being interpreted
Multi-disciplinary issues: “Brown” & Multi-disciplinary issues: “Brown” & “Green”“Green”
International Patent International Patent Practice: Practice:
Emerging issuesEmerging issues Transfer of TechnologyTransfer of Technology IP Assets Valuation; Legal frameworkIP Assets Valuation; Legal framework
Innovation-driven management structureInnovation-driven management structure Return on Innovations (RoI)Return on Innovations (RoI) Intellectual asset managementIntellectual asset management Strategic Licensing – flexibilities under TRIPsStrategic Licensing – flexibilities under TRIPs
Anti-competitive & Confidentiality clausesAnti-competitive & Confidentiality clauses
Non-violation Complaints and Dispute Non-violation Complaints and Dispute settlementsettlement
