Yuan qiong Hu | SOAS University of London (original) (raw)
Papers by Yuan qiong Hu
ICSID Case No. UNCT14/2, 2016
This amicus brief was submitted to the North American Free Trade Agreement (NAFTA) arbitral tribu... more This amicus brief was submitted to the North American Free Trade Agreement (NAFTA) arbitral tribunal in Eli Lilly v. Canada (ICSID Case No. UNCT/14/2) by Amici. Amici are scholars whose research and teaching focus is intellectual property law (Dr. Burcu Kilic, Professor Brook Baker, HU Yuanqiong, Professor Cynthia Ho, Dr Luke McDonagh, Pratyush Upreti and Yaniv Heled, J.S.D.). The brief was accepted by the Tribunal with respect to Dr. Burcu Kilic (Washington DC, United States), Professor Brook K. Baker (Boston, United States), Professor Cynthia Ho (Chicago, United States), and Mr. Yaniv Heled J.S.D. (Atlanta, United States), denied with respect to the other academics for lack of standing.
In September 2013, the Claimant Eli Lilly and Company (Lilly) launched a CDN $ 500 million claim against the Government of Canada under the North American Free Trade Agreement’s (NAFTA) investment chapter. The Claimant is challenging Canada’s invalidation of secondary patents related to the previously-known and patented active ingredients atomoxotine (Strattera) and olanzapine (Zyprexa), drugs used to treat attention deficit hyperactivity disorder, schizophrenia and bipolar disorder.
Lilly is challenging the decision of Canadian courts to invalidate two patents for failing to comply with Canada’s requirement of usefulness after failing to prevail in Canadian courts. The challenge is under the “investment” chapter of NAFTA, rather than the IP chapter. Lilly argues that this “improper” and “discreditable” invalidation of its patents constitutes a NAFTA-prohibited “indirect expropriation” and a breach of NAFTA’s guarantee of a “minimum standard of treatment” for foreign investors.
This case against Canada is a case of first impression and the first case pursuing investor-state dispute resolution (ISDS) with respect to intellectual property rights affecting pharmaceuticals, the case has heightened significance.
The outcome of this case will be instructive about whether other foreign investors pursue future attacks on substantive policies embedded in national patent systems through the arbitral proceedings challenging differences in patentability standards that frustrate their “expectations”. Of particular concern is that this challenge may make countries hesitant to use legitimate flexibilities under the Agreement on Trade Related Aspects of Intellectual Property (TRIPS).
In addition, the invalidated patents are secondary patents that Eli Lilly seeks to use to extend its patent term after initial patents expired, but without substantial evidence that these new inventions are in fact useful. Although Canada bars such patents under the “promise of a patent” for usefulness that is unique, other countries similarly bar such patents, under different patentability doctrines.
The Brief addresses, amongst other issues:
• NAFTA Chapter 17 patentability standards
• Patentability standards in Canada and their judicial interpretation
• Secondary patents and patent evergreening
• Evolving nature of patent law
• Abuse of the system of international investment protection and misuse of the system
• Adverse chilling effect of the case on efforts to enhance access to medicines globally
AIDS Care, Sep 5, 2008
Full text downloadable at: https://doi.org/10.1080/09540120701768446 Financial access to HIV ... more Full text downloadable at: https://doi.org/10.1080/09540120701768446
Financial access to HIV care and treatment can be difficult for many people in China, where the government provides free antiretroviral drugs but does not cover the cost of other medically necessary components, such as lab tests and drugs for opportunistic infections. This article estimates out-of-pocket costs for treatment and care that a person living with HIV/AIDS in China might face over the course of one year. Data comes from two treatment projects run by Médecins Sans Frontières in Nanning, Guangxi Province and Xiangfan, Hubei Province. Based on the national treatment guidelines, we estimated costs for seven different patient profiles ranging from WHO Clinical Stages I through IV. We found that patients face significant financial barriers to even qualify for the free ARV program. For those who do, HIV care and treatment can be a catastrophic health expenditure, with cumulative patient contributions ranging from approximately US$200–3939/year in Nanning and US$13–1179/year in Xiangfan, depending on the patient's clinical stage of HIV infection. In Nanning, these expenses translate as up to 340% of an urban resident's annual income or 1200% for rural residents; in Xiangfan, expenses rise to 116% of annual income for city dwellers and 295% in rural areas. While providing ARV drugs free of charge is an important step, the costs of other components of care constitute important financial barriers that may exclude patients from accessing appropriate care. Such barriers can also lead to undesirable outcomes in the future, such as impoverishment of AIDS-affected households, higher ARV drug-resistance rates and greater need for complex, expensive second-line antiretroviral drugs.
Patent Law Research (China), 2008
The current biomedical research and development system largely relies on the patent protection to... more The current biomedical research and development system largely relies on the patent protection to secure financing and set priorities. Recent years' researches have revealed the flaws of the current market driven model of medical research and development. One of the most significant literature is the Report of Public Health, Innovation and Intellectual Property published by World Health Organisation in 2006. The report calls to reform the model of financing and priority setting for public health. The paper analyses the feasibility and recommendations of establishing alternative models for biomedical research and development, and examines the different proposals put forward at the international level for the reform to be carried out.
Patent Law Research (China), 2007
In the light of the Doha Declaration of TRIPS and Public Health, the extent to which the so calle... more In the light of the Doha Declaration of TRIPS and Public Health, the extent to which the so called 'August 30 mechanism' established by the WTO General Council in 2003 can effectively provide an expedited solution for public health pressures facing development remains a question to be examined. The paper based on the experience of Doctors without Borders with attempting to use the domestic provisions set up in Canada in implementing the 'August 30 mechanism', analyses the key shortcomings of the mechanism such as the problems with complex proceedings, restrictions on the production and quantities for exportation and the others. The paper concludes with the view that WTO should evaluate the actual implementation of TRIPS flexibilities, and assess the effectiveness of 'August 30 mechanism', aiming to establish a mechanism that can fulfil the public health needs, and promptly respond to urgent situations and support expedited global procurement of medicines.
Patent Law Research (China), 2007
The paper analyses the global health crisis derived from high prices and medicines, examines the ... more The paper analyses the global health crisis derived from high prices and medicines, examines the key shortcomings of the current research and development mechanism for medicines including high cost, insufficient research and excessive patenting. The paper discusses different options for alternative model for research and development by using the example of developing medicines for tuberculosis treatment.
Internet Law Review, 2004
In the information age，the developments of internet—related technology bring people convenience，a... more In the information age，the developments of internet—related technology bring people convenience，as well as pose a serious threat to confIdential personal information data．Online privacy，as a new type of right，plays an important role in tort law today．The approach of its regulation issue also becomes the most controversial problem in many countries．Because of the special characteristics of cyberspace，the rulemaking will meet with many difficulties and obstacles．This article will discuss the powers and weaknesses of the U．S．Children’S Online Privacy Protection Act of 1998，through which concluding that legislation of online privacy has at least three obstacles：couldn’t directly translating or complying the existing laws；couldn’t keeping pace with technology；couldn’t protecting international transmission of personal data privacy with domestic laws．The author hopes this article will to some extent improve the legislations and institutional innovations of China in this area．
Civil and Commercial Law Review, 2002
The paper discusses a number of subjects of law on contract of gift in China, including the pover... more The paper discusses a number of subjects of law on contract of gift in China, including the poverty defense by the gifter and the revocation of the contract of gift.
Working paper by Yuan qiong Hu
SOAS School of Law Working Paper Series, 2016
China Environment Series, Woodrow Wilson International Centre for Scholars, 2011
The Open Environmental Information Regulation was launched in May 2008, marking the first of the ... more The Open Environmental Information Regulation was launched in May 2008, marking the first of the kind in China with the objective of strengthening environmental enforcement through better transparency. The commentary examines the extent to which key stakeholders, including government agencies, enterprises, media, lawyers, courts and the public, have been responding to and implementing the regulation after its entered into force. It concludes that there have been increased outcry for transparency of pollution information, and the more effective implementation of the regulation is critical.
Book chapter by Yuan qiong Hu
Ko Ling Chan (ed.) Child Protection in Chinese Societies: Challenges and Policies (Nova Science Publishing), 2012
Ensuring a child's rights of access to justice and dignity is one of the fundamental principles o... more Ensuring a child's rights of access to justice and dignity is one of the fundamental principles of the United Nations Convention on the Rights of the Child (CRC). Since the 1980s, China has explored the issue of establishing a juvenile justice system. However, the current Penal Code and Criminal Procedure Law still contain no judicial diversion mechanism for children, and thus the issue of juvenile justice remains a law in the making. In addition, the absence of a unified child protection system with appropriate mandates increases the risk of vulnerable groups of children, especially migrant children in cities and left-behind children, coming into conflict with the law. The double insufficiency in the judicial sector and the administrative sector reveals the need to accelerate the reform of juvenile justice and to establish a comprehensive child protection system in China. The chapter will first examine the interdependency of the child protection system and the juvenile justice system from the perspective of child rights and then review the situation in China by focusing on the ongoing juvenile justice reform and local innovative pilot practices. This will be followed by an analysis of the success of these measures and the challenges that remain. Finally, practical recommendations on ways forward will be presented.
R Reis, V Terto Jr, M C Pimenta (eds.) Intellectual Property Rights and Access to ARV Medicines : Civil Society Resistance in the Global South (ABIA, CIP-Brasil), 2009
Since China launched its national HIV/AIDS treatment program in 2003, the issue of ARV access has... more Since China launched its national HIV/AIDS treatment program in 2003, the issue of ARV access has become a major obstacle to expanding treatment and prolonging patients’ lives. Examining the efforts and limitations of multiple stakeholders in the process of attaining full access to ARVs in China, this paper presents and analyzes the problems surrounding ARV access in China from different standpoints, focusing on the epidemic situation, capacities and constraints on domestic production, legal and policy barriers hampering access to ARVs, and noteworthy civil society responses and advocacy for ARV access. This paper not only describes how national stakeholders play their respective roles in the process of reaching national objectives in terms of access to ARVs, but also offers a comparative view of international stakeholders and practices respectively.This comparison in turn assists us in exploring and testing out ways for China to overcome the obstacles blocking access to ARVs.
Lisa Stern and Li Weiwei (eds.) Employment Discrimination-International Standards and National Practice (Law Press, China), 2006
Blog by Yuan qiong Hu
49 China Development Brief, 2011
49 China Development Brief, 2011
44 China Development Brief, 2009
Conference draft by Yuan qiong Hu
The 17th Science and Democracy Network Annual Meeting, 2018
Socio-Legal Studies Association Annual Conference, 2018
The common narrative that patent is indispensable for generating innovation in biomedical sectors... more The common narrative that patent is indispensable for generating innovation in biomedical sectors has long been contested with primary lines of critics focusing on either its short of empirical evidences or its insufficient theoretical grounding. While political discourse on the intersection of patent, innovation, access to medicines and the realisation of the right to health is ongoing, patent law practice evolves in its rather distinctive manner in both national and transnational contexts. Practicing patent law has played an important role in constructing and sustaining the meanings and understandings of patent in the context of biomedical innovation. The expertise held by patent lawyers and attorneys has been the main site of making the meaning of patents. The extent to which the establishment of patent law professions and the role of expertise knowledge have contributed to the patent politics in the context of biomedical innovation, is of interest for research.
The paper intends to draw upon the notion of co-production, examines the patterns of making patent law professions and the impact on the making and interpreting the meaning of patent on biomedical innovation. It looks at the professional development path of patent attorneys, discusses the interaction of disciplinary knowledge and norms from law and science in the process of making profession and expertise in patent practices. It uses examples of typical life science patent practices to illustrate the reconciliation of conflicting expertise in law and science in defining the boundary of patenting, and its social implications. The paper intends to feedback to the broad debates on the intersection of patent and health, discusses the possible re-examining and reconstruction of expertise in the context of patent and biomedical innovation.
Socio-Legal Studies Association Annual Conference, 2017
Since 2011, Patent and Health has become one of the five standing agenda items of the Committee o... more Since 2011, Patent and Health has become one of the five standing agenda items of the Committee on the Law of Patent (SCP) of World Intellectual Property Organisation (WIPO). Competing proposals, group politics and the constant construction and reconstruction of the meanings and the key concepts of the issue during the Committee meetings have turned the standing normative discussion into a contingent site of negotiation with little success in reaching agreement.
The paper intends to present a discourse analysis concerning the agenda item of patent and health before SCP from 2014-2016, building upon the participatory observation of the author during the period, and analysis on the text, proposals, language and patterns of presentations used by the main parties in the process. It locates the discussion in the global context of the controversies around patent and health, drawing attention to the interplay of SCP process with the discursive processes and influences from outside of the Committee room, and discusses its normative impact on the future discourse of patent law and health.
ICSID Case No. UNCT14/2, 2016
This amicus brief was submitted to the North American Free Trade Agreement (NAFTA) arbitral tribu... more This amicus brief was submitted to the North American Free Trade Agreement (NAFTA) arbitral tribunal in Eli Lilly v. Canada (ICSID Case No. UNCT/14/2) by Amici. Amici are scholars whose research and teaching focus is intellectual property law (Dr. Burcu Kilic, Professor Brook Baker, HU Yuanqiong, Professor Cynthia Ho, Dr Luke McDonagh, Pratyush Upreti and Yaniv Heled, J.S.D.). The brief was accepted by the Tribunal with respect to Dr. Burcu Kilic (Washington DC, United States), Professor Brook K. Baker (Boston, United States), Professor Cynthia Ho (Chicago, United States), and Mr. Yaniv Heled J.S.D. (Atlanta, United States), denied with respect to the other academics for lack of standing.
In September 2013, the Claimant Eli Lilly and Company (Lilly) launched a CDN $ 500 million claim against the Government of Canada under the North American Free Trade Agreement’s (NAFTA) investment chapter. The Claimant is challenging Canada’s invalidation of secondary patents related to the previously-known and patented active ingredients atomoxotine (Strattera) and olanzapine (Zyprexa), drugs used to treat attention deficit hyperactivity disorder, schizophrenia and bipolar disorder.
Lilly is challenging the decision of Canadian courts to invalidate two patents for failing to comply with Canada’s requirement of usefulness after failing to prevail in Canadian courts. The challenge is under the “investment” chapter of NAFTA, rather than the IP chapter. Lilly argues that this “improper” and “discreditable” invalidation of its patents constitutes a NAFTA-prohibited “indirect expropriation” and a breach of NAFTA’s guarantee of a “minimum standard of treatment” for foreign investors.
This case against Canada is a case of first impression and the first case pursuing investor-state dispute resolution (ISDS) with respect to intellectual property rights affecting pharmaceuticals, the case has heightened significance.
The outcome of this case will be instructive about whether other foreign investors pursue future attacks on substantive policies embedded in national patent systems through the arbitral proceedings challenging differences in patentability standards that frustrate their “expectations”. Of particular concern is that this challenge may make countries hesitant to use legitimate flexibilities under the Agreement on Trade Related Aspects of Intellectual Property (TRIPS).
In addition, the invalidated patents are secondary patents that Eli Lilly seeks to use to extend its patent term after initial patents expired, but without substantial evidence that these new inventions are in fact useful. Although Canada bars such patents under the “promise of a patent” for usefulness that is unique, other countries similarly bar such patents, under different patentability doctrines.
The Brief addresses, amongst other issues:
• NAFTA Chapter 17 patentability standards
• Patentability standards in Canada and their judicial interpretation
• Secondary patents and patent evergreening
• Evolving nature of patent law
• Abuse of the system of international investment protection and misuse of the system
• Adverse chilling effect of the case on efforts to enhance access to medicines globally
AIDS Care, Sep 5, 2008
Full text downloadable at: https://doi.org/10.1080/09540120701768446 Financial access to HIV ... more Full text downloadable at: https://doi.org/10.1080/09540120701768446
Financial access to HIV care and treatment can be difficult for many people in China, where the government provides free antiretroviral drugs but does not cover the cost of other medically necessary components, such as lab tests and drugs for opportunistic infections. This article estimates out-of-pocket costs for treatment and care that a person living with HIV/AIDS in China might face over the course of one year. Data comes from two treatment projects run by Médecins Sans Frontières in Nanning, Guangxi Province and Xiangfan, Hubei Province. Based on the national treatment guidelines, we estimated costs for seven different patient profiles ranging from WHO Clinical Stages I through IV. We found that patients face significant financial barriers to even qualify for the free ARV program. For those who do, HIV care and treatment can be a catastrophic health expenditure, with cumulative patient contributions ranging from approximately US$200–3939/year in Nanning and US$13–1179/year in Xiangfan, depending on the patient's clinical stage of HIV infection. In Nanning, these expenses translate as up to 340% of an urban resident's annual income or 1200% for rural residents; in Xiangfan, expenses rise to 116% of annual income for city dwellers and 295% in rural areas. While providing ARV drugs free of charge is an important step, the costs of other components of care constitute important financial barriers that may exclude patients from accessing appropriate care. Such barriers can also lead to undesirable outcomes in the future, such as impoverishment of AIDS-affected households, higher ARV drug-resistance rates and greater need for complex, expensive second-line antiretroviral drugs.
Patent Law Research (China), 2008
The current biomedical research and development system largely relies on the patent protection to... more The current biomedical research and development system largely relies on the patent protection to secure financing and set priorities. Recent years' researches have revealed the flaws of the current market driven model of medical research and development. One of the most significant literature is the Report of Public Health, Innovation and Intellectual Property published by World Health Organisation in 2006. The report calls to reform the model of financing and priority setting for public health. The paper analyses the feasibility and recommendations of establishing alternative models for biomedical research and development, and examines the different proposals put forward at the international level for the reform to be carried out.
Patent Law Research (China), 2007
In the light of the Doha Declaration of TRIPS and Public Health, the extent to which the so calle... more In the light of the Doha Declaration of TRIPS and Public Health, the extent to which the so called 'August 30 mechanism' established by the WTO General Council in 2003 can effectively provide an expedited solution for public health pressures facing development remains a question to be examined. The paper based on the experience of Doctors without Borders with attempting to use the domestic provisions set up in Canada in implementing the 'August 30 mechanism', analyses the key shortcomings of the mechanism such as the problems with complex proceedings, restrictions on the production and quantities for exportation and the others. The paper concludes with the view that WTO should evaluate the actual implementation of TRIPS flexibilities, and assess the effectiveness of 'August 30 mechanism', aiming to establish a mechanism that can fulfil the public health needs, and promptly respond to urgent situations and support expedited global procurement of medicines.
Patent Law Research (China), 2007
The paper analyses the global health crisis derived from high prices and medicines, examines the ... more The paper analyses the global health crisis derived from high prices and medicines, examines the key shortcomings of the current research and development mechanism for medicines including high cost, insufficient research and excessive patenting. The paper discusses different options for alternative model for research and development by using the example of developing medicines for tuberculosis treatment.
Internet Law Review, 2004
In the information age，the developments of internet—related technology bring people convenience，a... more In the information age，the developments of internet—related technology bring people convenience，as well as pose a serious threat to confIdential personal information data．Online privacy，as a new type of right，plays an important role in tort law today．The approach of its regulation issue also becomes the most controversial problem in many countries．Because of the special characteristics of cyberspace，the rulemaking will meet with many difficulties and obstacles．This article will discuss the powers and weaknesses of the U．S．Children’S Online Privacy Protection Act of 1998，through which concluding that legislation of online privacy has at least three obstacles：couldn’t directly translating or complying the existing laws；couldn’t keeping pace with technology；couldn’t protecting international transmission of personal data privacy with domestic laws．The author hopes this article will to some extent improve the legislations and institutional innovations of China in this area．
Civil and Commercial Law Review, 2002
The paper discusses a number of subjects of law on contract of gift in China, including the pover... more The paper discusses a number of subjects of law on contract of gift in China, including the poverty defense by the gifter and the revocation of the contract of gift.
SOAS School of Law Working Paper Series, 2016
China Environment Series, Woodrow Wilson International Centre for Scholars, 2011
The Open Environmental Information Regulation was launched in May 2008, marking the first of the ... more The Open Environmental Information Regulation was launched in May 2008, marking the first of the kind in China with the objective of strengthening environmental enforcement through better transparency. The commentary examines the extent to which key stakeholders, including government agencies, enterprises, media, lawyers, courts and the public, have been responding to and implementing the regulation after its entered into force. It concludes that there have been increased outcry for transparency of pollution information, and the more effective implementation of the regulation is critical.
Ko Ling Chan (ed.) Child Protection in Chinese Societies: Challenges and Policies (Nova Science Publishing), 2012
Ensuring a child's rights of access to justice and dignity is one of the fundamental principles o... more Ensuring a child's rights of access to justice and dignity is one of the fundamental principles of the United Nations Convention on the Rights of the Child (CRC). Since the 1980s, China has explored the issue of establishing a juvenile justice system. However, the current Penal Code and Criminal Procedure Law still contain no judicial diversion mechanism for children, and thus the issue of juvenile justice remains a law in the making. In addition, the absence of a unified child protection system with appropriate mandates increases the risk of vulnerable groups of children, especially migrant children in cities and left-behind children, coming into conflict with the law. The double insufficiency in the judicial sector and the administrative sector reveals the need to accelerate the reform of juvenile justice and to establish a comprehensive child protection system in China. The chapter will first examine the interdependency of the child protection system and the juvenile justice system from the perspective of child rights and then review the situation in China by focusing on the ongoing juvenile justice reform and local innovative pilot practices. This will be followed by an analysis of the success of these measures and the challenges that remain. Finally, practical recommendations on ways forward will be presented.
R Reis, V Terto Jr, M C Pimenta (eds.) Intellectual Property Rights and Access to ARV Medicines : Civil Society Resistance in the Global South (ABIA, CIP-Brasil), 2009
Since China launched its national HIV/AIDS treatment program in 2003, the issue of ARV access has... more Since China launched its national HIV/AIDS treatment program in 2003, the issue of ARV access has become a major obstacle to expanding treatment and prolonging patients’ lives. Examining the efforts and limitations of multiple stakeholders in the process of attaining full access to ARVs in China, this paper presents and analyzes the problems surrounding ARV access in China from different standpoints, focusing on the epidemic situation, capacities and constraints on domestic production, legal and policy barriers hampering access to ARVs, and noteworthy civil society responses and advocacy for ARV access. This paper not only describes how national stakeholders play their respective roles in the process of reaching national objectives in terms of access to ARVs, but also offers a comparative view of international stakeholders and practices respectively.This comparison in turn assists us in exploring and testing out ways for China to overcome the obstacles blocking access to ARVs.
Lisa Stern and Li Weiwei (eds.) Employment Discrimination-International Standards and National Practice (Law Press, China), 2006
49 China Development Brief, 2011
49 China Development Brief, 2011
44 China Development Brief, 2009
The 17th Science and Democracy Network Annual Meeting, 2018
Socio-Legal Studies Association Annual Conference, 2018
The common narrative that patent is indispensable for generating innovation in biomedical sectors... more The common narrative that patent is indispensable for generating innovation in biomedical sectors has long been contested with primary lines of critics focusing on either its short of empirical evidences or its insufficient theoretical grounding. While political discourse on the intersection of patent, innovation, access to medicines and the realisation of the right to health is ongoing, patent law practice evolves in its rather distinctive manner in both national and transnational contexts. Practicing patent law has played an important role in constructing and sustaining the meanings and understandings of patent in the context of biomedical innovation. The expertise held by patent lawyers and attorneys has been the main site of making the meaning of patents. The extent to which the establishment of patent law professions and the role of expertise knowledge have contributed to the patent politics in the context of biomedical innovation, is of interest for research.
The paper intends to draw upon the notion of co-production, examines the patterns of making patent law professions and the impact on the making and interpreting the meaning of patent on biomedical innovation. It looks at the professional development path of patent attorneys, discusses the interaction of disciplinary knowledge and norms from law and science in the process of making profession and expertise in patent practices. It uses examples of typical life science patent practices to illustrate the reconciliation of conflicting expertise in law and science in defining the boundary of patenting, and its social implications. The paper intends to feedback to the broad debates on the intersection of patent and health, discusses the possible re-examining and reconstruction of expertise in the context of patent and biomedical innovation.
Socio-Legal Studies Association Annual Conference, 2017
Since 2011, Patent and Health has become one of the five standing agenda items of the Committee o... more Since 2011, Patent and Health has become one of the five standing agenda items of the Committee on the Law of Patent (SCP) of World Intellectual Property Organisation (WIPO). Competing proposals, group politics and the constant construction and reconstruction of the meanings and the key concepts of the issue during the Committee meetings have turned the standing normative discussion into a contingent site of negotiation with little success in reaching agreement.
The paper intends to present a discourse analysis concerning the agenda item of patent and health before SCP from 2014-2016, building upon the participatory observation of the author during the period, and analysis on the text, proposals, language and patterns of presentations used by the main parties in the process. It locates the discussion in the global context of the controversies around patent and health, drawing attention to the interplay of SCP process with the discursive processes and influences from outside of the Committee room, and discusses its normative impact on the future discourse of patent law and health.
International Association of the Study of Commons (IASC) Regional European Conference, 2016
The expansion of the patent law regime has profoundly shifted the landscape and boundary of knowl... more The expansion of the patent law regime has profoundly shifted the landscape and boundary of knowledge creation, dissemination, the notion and practices of innovation, including those concerning health. With the global outcry of lacking adequate innovation addressing pressing health needs especially in developing countries on one hand, the doctrine and practice of resorting to proprietary protection as the stimulation for innovation remain predominant. At theoretical level, the discourse of the 'tragedy of commons' and 'tragedy of anti-commons' have been used in various contexts in illustrating the tension between treating biomedical research as a field of public commons and the economic account to its creation and distribution. Researches have also shed light on the discontent of having legal enclosure at upfront of generating innovation, which has not achieved the intended objectives of fulfilling the health needs by the public. Yet, patent law which is conventionally national law by nature has been used in framing and setting international agendas and rules in securing private commercial interest at global level, which also in turn framed the overall perceptions of its function on innovation, including those concerning health in the national context. The adaptation of the Agreements on Trade Related Intellectual Property Rights (TRIPS) under the auspices of World Trade Organization (WTO), and the insertion of patent norms in several of trade and investment treaties have further reinforced the tensions between global and local in terms of the very function of patent law in regards to knowledge commons and health innovation. It also touches upon the development consideration in this context, as enclosed knowledge commons may lead the innovation to be largely monopolistic. The recent United National Sustainable Development Goals (SDG) have set forth a new level of global policy relevance to the issue with the notion of innovation, the role of international trade, and the importance of using patent law rules flexible enough to facilitate the sustainable development especially those concerning health. While the SDG defines the new realm of development policies in the coming decade at global level, the contingency among knowledge commons, innovations and health in the context of patent law regime remains one of the challenges to be tackled. With patent right being legitimized through both international and national laws, the extent to which the boundary of innovation could be redefined in law so that the knowledge commons and scientific creativity would be lifted in reaching public needs is among the critical questions to be discussed. The paper will critically examine the major norms of patent law with focus on how innovation has been defined regards health, the interplay between national and international legal institutions in adopting or interpreting those patent norms, and the nexus and implications of such phenomenon on the realisation of sustainable development goals at national and global levels.
Workshop on 'Rethinking International Investment Law: Civic Advocacy, Representation and Participation in the International Investment Regime', 2016
The intersection of intellectual property and access to medicines have been one of the contentiou... more The intersection of intellectual property and access to medicines have been one of the contentious issues involving state and non-state actors in the forums of international trade law, public health policies and human rights. After two decades of normative debates and advocacy over the issue of patent flexibilities in this context, the recent years emerging controversies around the Investor-State-Dispute-Settlement (ISDS) in bilateral investment relations have added further complexity when its relevance and applicability to domestic intellectual property laws are under dispute. Civil society and academics have started looking closer the interplay of the two traditionally paralleling regimes, but questions remain on whether the emerging practices would trigger convergence of the forums of debates or only function as identifying the normative gaps. The paper starts with introducing the experience of participating in amicus curiae drafting and submission process concerning the Eli Lily and Company vs. Canada case. It tries to outline the central discourse and challenges of engaging ISDS debates from the perspective of access to medicines advocacy.
Socio-Legal Studies Association Annual Conference , 2016
The diversity of patentability criteria and doctrines in different jurisdictions has long been a ... more The diversity of patentability criteria and doctrines in different jurisdictions has long been a point of discussion and controversy, especially those concerning pharmaceutical patents which bear public interests implications. Among the others, the debate on whether second medical use should be considered as patentable is one of such examples while practitioners, scholars, advocates and public policy makers have different views on. The essence of second medical use in medical clinical senses has also presented a significantly different picture and understanding on its merit from what legal professions have been constructing in the context of patent applications and disputes. The question of whether and how second medical use can and should be considered as something new and innovative and hence be subject to patent protection, is thus more a process of bargaining from different stakeholders in the given context. The paper starts with reviewing the major recent arguments around the patentability question on second medical use of medicines, and focus on its analysis on a recent case before the courts of England concerning second medical use patent claims by Pfizer on its drug Lyrica. While Pfizer has lost the case in the interim proceedings so far, the phenomenon of social legal bargaining around the case has presented an interesting picture of analysis in terms of how the concepts involving patentability terms have been constructed, defended and contested by multiple players in the situation, including those concerning patent attorneys, judges, health practitioners, NHS agencies and the company. Comparison will be drew from other jurisdictions concerning the patentability question on second medical use.
Socio-Legal Studies Association Annual Conference, 2015
Despite of being a long existing legal mechanism in patent law, voluntary license has triggered h... more Despite of being a long existing legal mechanism in patent law, voluntary license has triggered heat and often times polarised controversies in recent years during its usage in the context of pharmaceutical patents concerning certain pandemic diseases. Both voluntary licenses negotiated among commercial entities and those under the auspices of collective patent management scheme such as Medicines Patent Pool, have been under the discussion. Questions arise around voluntary license in such context include but not limited to the legality and legitimacy of the terms in conjunction with other patent law and competition law provisions, the limitation and ethical concerns regarding the power exercised by the license parties towards different type of countries and patients, and the meaning of such exercise for the development of patent law in light of facilitating access to essential medicines.
The essay intends to provide a contextual and critical analysis of the phenomenon of using voluntary license in the field of pharmaceutical patents in recent years, with examples regarding medicines treating HIV/AIDS and Hepatitis C. The discussions would be formed around issues of the power relations among key stakeholders around the negotiation, conclusion and implementation of such voluntary licenses, the interplay of typical voluntary license terms and contractual obligations with other legal flexibilities contained in patent law, and the extent to which the current patent system could respond in the light of ensure access to essential medicines.
SOAS Law PhD Colloquium, 2015
Justifying patent under Law and Economics studies is influential and closely related to utilitari... more Justifying patent under Law and Economics studies is influential and closely related to utilitarianism, with the theory of incentive as its primary argumentation. However, since Law and Economics emerged as a strand of legal scholar from 1960s and flourished in 1980s onward, its theoretical and analytical approaches, including those concerning patent law has long been criticized. Recent years have seen a number of new trends of critiques either engaging with its utilitarian based realm or attempting to propose new analytical framework, including the newly published well-being approach to intellectual property.
The extent, to which those new trends of critiques would be moving away from mainstream Law and Economics structure of justifying patent from utilitarian senses, and further shed light on resolving the internal distortion of the current patent system in the context of essential health innovation, are the central questions of interests that would be explored in the paper.
Sutherland School of Law, Postgraduate Workshop, 2014
Article 30 of the TRIPS agreement enshrined the general rule of exceptions on patent that formed ... more Article 30 of the TRIPS agreement enshrined the general rule of exceptions on patent that formed one of the important flexibilities for WTO members. In the light of such provisions, research and experimental exceptions have been integrated in a number of national patent laws, with objective of balancing rights and obligations of patent system, and to encourage innovations. Yet, the promulgation and implementation of such exceptions present diverse effectiveness across countries in terms of the actual promotion of innovation. In the field of medical innovation, patent based model for research and development has been considered as insufficient especially in the context of meeting health needs of marginalized populations in developing countries. Thus, closer analysis on the extent to which integrating research and experimental exceptions could function in encouraging medical innovation is of the interest for research. The paper intends to discuss the effects and limitations of using research and experimental exceptions in the context of medical innovation from the perspective of developing countries.
The paper starts with discussing the origin, evolution and contemporary debates on the legislation on research and experimental exceptions, in combination with analysis of leading jurisprudence of case law. The major division of exception for research on and research of the patented subject matter will be discussions in the light of assessing the effectiveness and limitations in the actual medical research and development context. The future role of TRIPS and its conjunction with other international law instruments in this context will be discussion with the perspective of promoting optimal use of such flexibility by developing countries for medical innovation., with the focus on access to medicines and innovation. She worked as legal advocate for many years, and has published a number of articles on the issue of TRIPS flexibility and access to medicines.
Edinburgh Postgraduate Law Conference: Law, Individual, Community, 2013
The impact of pharmaceutical patenting on access to medicines in developing countries has been un... more The impact of pharmaceutical patenting on access to medicines in developing countries has been under the spotlight of controversy during national patent law reforms in complying with the Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS). India and China have undertaken such reforms in recent years in fulfilling their international commitments but presented different trends, despite that both countries are among the major emerging economies and bearing considerable manufacture capacities. Against such background, the paper intends to examine the extent to which the technocratic approach to patent law had been transformed in the two countries in the context of global social movement of resistance towards the hegemony of patenting and its impact on access to medicines.
The paper starts with reviewing the theory of resistance and social movement in law reform, with focus on its implication on patent law. Secondly, the 2005 revision of Patent Act in India and the 2008 revision of Patent Law in China are chosen as the backdrops for comparison. Among the other factors, the choice of patentability doctrine, the role of civil society activism, and the dispute settlement practices would be the major aspects of comparison via case studies. The paper intends to draw the conclusions that while strong technocratic influences remain, both countries have started walking out the closed discourse of patent law reform with different characteristics in the context of improving access to medicines. While India has adopted strict patentability and pro-public health dispute settlement during its interacting with social activism at both international and national levels, China however presented more neoliberal approach to patent law reform with limited engagement with social movement. Nonetheless, with the recent patent invalidation practices and the increasing involvement in international policy debates, the forum of resistance still functions in China though in an alternative manner.
United Nations Headquarter, 2010
Distinguished Chair, Your excellences and Representatives, Emerging crises especially in the cont... more Distinguished Chair, Your excellences and Representatives, Emerging crises especially in the context of climate change and global financial crisis, and the interdependence of crises has doubled the cost and complexity for achieving MDG at national level for developing countries. Building on what have been addressed by other speakers, I would like to further comment on the issues of intellectual property rights (IPR) as a cross-cutting issue in the context of access to technologies and access to medicines.
The 16th International Conference of the International Union of Anthropological and Ethnological Sciences (IUAES), 2009
The primary research question of the thesis is: To what extent are laws on language rights for mi... more The primary research question of the thesis is: To what extent are laws on language rights for minorities in China comparable with human rights norms at the international level and the European regional level? Taking the typology of " trans-judicial communication " as the analogy, the comparative study of this research is intending to create a communicative diagram regarding the certain legal phenomenon, namely language rights for minorities, under international and European human rights laws, and the Chinese laws. From this study, tentative conclusions and recommendations on Chinese laws are drawn as the following. Firstly, community-based notion of language liberty need to be individualized in Chinese laws, referring to human rights languages under international and European laws. Secondly, the legislations at the ethnic autonomous areas of China as important tool to practice the right to autonomy, should take into account the realities of the localities, but not merely duplicate the laws at upper levels. The flexibility and broad margin of discretion under European laws can be taken as references. Thirdly, diminishing the political slogans among the legal texts, and making the laws coherent and enforceable.
From this study, tentative conclusions and recommendations on Chinese laws are drawn as the following. Firstly, community-based notion of language liberty need to be individualized in Chinese laws, referring to human rights languages under international and European laws. Secondly, the legislations at the ethnic autonomous areas of China as important tool to practice the right to autonomy, should take into account the realities of the localities, but not merely duplicate the laws at upper levels. The flexibility and broad margin of discretion under European laws can be taken as references. Thirdly, diminishing the political slogans among the legal texts, and making the laws coherent and enforceable.
Law, Environment and Development Centre Public Seminar Series, 2017
Workshop on 'Making Technological Innovation works for Sustainable Development', Harvard Kennedy School of Government and University College London Department of Science, Technology, Engineering and Public Policy , 2016
Centre of East Asia Law Seminar, School of Law, SOAS, University of London, 2016
The 3rd Global Congress of Intellectual Property and Public Interests, 2013
The 5th International Conference on Intellectual Property Protection of High Technology: Knowledge Sharing and Balanced IP Protection, 2009
The 7th Colloquium of The IUCN Academy of Environmental Law, 2009
The 5th International AIDS Society Conference, 2009
WTO/UNESCAP Regional Workshop on the TRIPS Agreement and Public Health, 2007
Conference 2005 on 'Whose culture? Whose rights? Exploring the Universality of Human Rights', 2005