National Sovereignty and International Patent Law (original) (raw)

International Intellectual Property: Law and Policy (with W. Hennessey, S. Perlmutter & G. Austin)

2008

The TRIPS Agreement can be read to reflect a static view of the structure of intellectual property law. In this paper, we address whether-and how-the TRIPS Agreement can, on the other hand, be read with more fluidity, and thus to allow adjustments in national intellectual property regimes designed to reflect the dynamic nature of information production. To focus that inquiry, we concentrate on efforts to ensure a broader public domain for 'upstream' inventions by modifying various elements of US patent law. The paper considers three stylized examples and asks whether each approach could be adopted by the United States without falling afoul of the TRIPS Agreement as it is currently understood. Our purpose is to identify interpretive approaches that allow member states to keep their laws attuned to the developments and needs of science. But in so doing, we also raise broader questions regarding the level of formalism generated by the WTO dispute settlement system, and the extent to which the TRIPS Agreement allocates power between supranational and national institutions, and between international and national laws. introduction The size and content of a rich public domain are affected by a constellation of national intellectual property rules. Since 1995, these domestic rules have, in WTO-member states, been subject to the requirements of the Agreement on

International Intellectual Property Law and Policy (with W. Hennessey & S. Perlmutter)

2001

The TRIPS Agreement can be read to reflect a static view of the structure of intellectual property law. In this paper, we address whether-and how-the TRIPS Agreement can, on the other hand, be read with more fluidity, and thus to allow adjustments in national intellectual property regimes designed to reflect the dynamic nature of information production. To focus that inquiry, we concentrate on efforts to ensure a broader public domain for 'upstream' inventions by modifying various elements of US patent law. The paper considers three stylized examples and asks whether each approach could be adopted by the United States without falling afoul of the TRIPS Agreement as it is currently understood. Our purpose is to identify interpretive approaches that allow member states to keep their laws attuned to the developments and needs of science. But in so doing, we also raise broader questions regarding the level of formalism generated by the WTO dispute settlement system, and the extent to which the TRIPS Agreement allocates power between supranational and national institutions, and between international and national laws. introduction The size and content of a rich public domain are affected by a constellation of national intellectual property rules. Since 1995, these domestic rules have, in WTO-member states, been subject to the requirements of the Agreement on

Developing an International Patent: Detaching from Principle of Territoriality

2021

The call for international or universal patent protection has intensified in response to the recognized necessity of safeguarding intellectual property rights. The current system, characterized by fragmented national or regional patent rights, presents challenges in terms of recognition, protection, and enforcement, exacerbating the risk of infringement. However, the development of an international patent system with unitary effect has been slow or non-existent. Proponents argue that such a system would offer enhanced protection and foster innovation and economic growth by providing simultaneous protection across multiple territories with a single application having unitary effect. Despite efforts towards harmonization, significant disparities persist in procedural laws across national and regional patent systems, underscoring the enduring influence of territoriality. An international patent system holds the potential to address the challenges posed by territoriality, potentially reshaping patent rights in a global context.

Patent Fairness and International Justice

2015

In 2002, Hugh Laddie lamented the “blind adherence to dogma” that had led to an apparent impasse in philosophical and practical discussions of intellectual property (IP): “On the one side, the developed world side, there exists a lobby of those who believe that all IPRs [intellectual property rights] are good for business, benefit the public at large, and act as catalysts for technical progress. They believe and argue that, if IPRs are good, more IPRs must be better.”1 But “on the other side”, he continued: “there exists a vociferous lobby of those who believe that IPRs are likely to cripple the development of local industry and technology, will harm the local population, and benefit none but the developed world. They believe and argue that, if IPRs are bad, the fewer the better.” Laddie recommended reforms designed to ensure that IPR development and enforcement would better serve the interests of developing countries. He hoped these reforms would provide an effective response to th...

Patent Protection for The National Interest

Jurnal Hukum Sasana, 2022

This research will analyze Patent Protection for the Interest of Indonesia. The approach used is normative law, to find the rule of law, legal principles, and legal doctrines in answering the legal issues at hand. This research will analyze the development of Intellectual Property Rights in essence is the development of Human Resources (HR), because IPR related to products and processes related to the IPR system is expected to develop HR, especially the creation of innovative, inventive culture. The role of intellectual property protection systems in relation to the protection of traditional knowledge, regarding how to preserve, protect and be fair in its use. Patent Protection is a matter of shared ownership of traditional knowledge.

The Legal Notion of Abuse of Patent Rights

The patent system has reportedly been subjected to various misuses in the past decades. Evergreening, exclusive and limited licensing of diagnostic tests and the destruction of generic medicines are only a few of the instances discussed in literature. Additionally, certain phenomena have also been reported to distance the system as a whole from its intention: incentivising innovation. Here, the keywords are anti-commons, patent thicketing, patent trolling, etc.. In international law, the TRIPs ceilings debate mainly roots in developmental grounds, but also on examples such as these. The hypothesis is that the flexible nature of the patent system should be strong enough to cope with most situations. In this context, this paper will analyse an additional legal tool that could serve to flexibly deal with possible negative uses of patent system: the notion of abuse of rights. Abuse of rights classically means that a right holder may not make use of his right in an illegitimate manner. The aim is to analyse what this notion entails concretely and what it could mean in/to patent law. After this, we proceed by testing it upon two instances reported to be abuses of the system: the evergreening of patents and medicines in transit-case. Finally, this analysis and its results are being put against the background of the TRIPs-ceilings debate. Here, the thesis is advanced that a good faith interpretation imposes certain ceilings on WTO member states already, and that a contrary application may constitute an abuse or rights. 2