Digital Commons Network^™

New Paradigms For Protection Of Biodiversity, Srividhya Ragavan

Faculty Scholarship

The most successful bioprospecting venture was established in 1989 in Costa Rica. Interestingly, the distinction of being a forerunner in exploiting bioprospecting goes to India. In 1979, a full decade before Costa Rica, India established the TBGRI (Tropical Botanic Garden and Research Institute) at Trivandrum.

Yet, the TBGRI venture with the Kani Tribes, which had the potential to become a beacon of bioprospecting success, is showcased as the exemplar of failure. In this era of trade regime, the following paper asserts, bioprospecting ventures are important tools for developing countries. Countries like India and organizations like the TBGRI should learn from …

Earth Jurisprudence: The Moral Value Of Nature, Judith E. Koons

Faculty Scholarship

As planetary environmental crises advance toward us like an enormous oil spill, the call of Earth Jurisprudence has arisen, suggesting that a shift is necessary in the way that we think about law, governance, and nature. A predicate to rethinking law, however, is to reconsider the moral status of nature. This article posits that, to preserve a healthy planet for future generations of human beings - and for Earth itself - it is necessary to recognize Earth as the center of the moral community. As an ethical endeavor, the article turns the question of the moral status of nature through …

Improving Access To Medicines Doesn't Have To Mean More Patents, Luigi Palombi

Luigi Palombi

Access to medicines presupposes that there are medicines to access, but the development of medicines, especially those needed to treat diseases that inflict the poor and the disadvantaged, are especially difficult to access because of the pharmaceutical industry’s paradigm of medicines being inextricably linked to patents; meaning, without patents there is no incentive to undertake the necessary R&D to develop new medicines. This paper argues that this is a lie; told by pharmaceutical executives and spread by well meaning scientists. Uncontested by policymakers in the 1960’s it has become a truth that threatens scientific progress, the development of appropriate medicines …

Ducking Trips In India: A Saga Involving Novartis And The Legality Of Section 3(D), Shamnad Basheer, Prashant Reddy

National Law School of India Review

This paper is an evaluation of the decision in Novartis AG v. Union of India, where the Madras High Court decided on both, the constitutionality of s. 3(d) of the Indian Patents Act, 1970 and its compatibility with the TRIPS regime. The authors agree with the Court insofar as the court upheld the constitutionality of the section. They are, however, critical of the Court's decision to 'duck' out of deciding TRIPS compatibility on jurisdictional grounds. The authors disagree with the reasoning and contractual framework within which the Court found it had no jurisdiction, and posit that principles of constitutional law …

The Benefits And Costs Of Proliferation Of Geographical Labeling For Developing Countries, Julie Caswell

Julie Caswell

Food product attributes related to geographical origins are a topical issue in global food trade. The provision of geographical labelling may occur through geographical indications under the mandated trade rules of the TRIPS Agreement, trademarks, or country-of-origin labelling. The overall effect of the expansion of geographical labelling on developing countries depends on a complex mix of market opportunities that may yield substantial benefits as well as implementation costs. Increasingly, the analysis of this overall effect will need to evaluate the joint impacts of different forms of geographical labelling on the market position of developing countries.

Patenting Part-Human Chimeras, Transgenics And Stem Cells For Transplantation In The United States, Canada, And Europe, Gregory R. Hagen, Sébastien A. Gittens

Richmond Journal of Law & Technology

The perceived need for part-human materials – considered to be biological materials containing human genetic material for the purposes of this paper – is at least twofold. First, given the continued shortage of human organs and other human biological materials suitable for transplantation, thousands of persons will suffer illness and death each year.

What Is An Invention? A Review Of The Literature On Patentable Subject Matter, Emir Aly Crowne Mohammed

Richmond Journal of Law & Technology

This work is a critical review of the literature on patentable subject matter. It examines the central feature of modern patent law—the “invention”—at an international and comparative level. As with most codified terms intended to have wide-ranging, prospective applicability, it is usually left undefined, or if defined, is usually drafted broadly and permissively. Despite the hallmarks of patentability (namely, novelty, inventiveness, and industrial applicability), some courts1 and academic commentators have questioned whether there still needs to be an invention in the first place, before one even considers its patentability.

The New Chinese Dynasty: How The United States And International Intellectual Property Laws Are Failing To Protect Consumers And Investors From Counterfeiting, Anna-Liisa Jacobsen

Richmond Journal of Global Law & Business

As businesses expanded with the rise of globalization, so did the effects of anticompetitive activity and, in turn, the reach of the U.S. antitrust laws. Though Congress addressed the extraterritorial jurisdiction of the U.S. antitrust laws with its implementation of the Foreign Trade Antitrust Improvement Act (“FTAIA”), the statute only created a three-way circuit split that led the Supreme Court to address the issue and determine that the foreign injury must arise from both foreign anticompetitive activity and the activity’s adverse effects on domestic commerce. The D.C. Circuit further clarified the issue on remand by requiring a proximate cause relationship …

The Other Famous Marks Doctrine, Xuan-Thao Nguyen

Articles

Debates on protection for famous trademarks often center around state and federal antidilution laws. Both the old Federal Trademark Dilution Act of 1995 and the new Trademark Dilution Revision Act of 2006 have generated many law review articles and numerous symposia. The dilution law focuses on trademarks deemed famous within U.S. boundaries. A debate on protection for famous trademarks today is incomplete without a discussion of the other famous marks doctrine. The other famous marks doctrine recognizes marks famous in other countries without actual use in the country where a user adopts the trademark on similar goods and services.

In …

Patent Judicial Wisdom, Srividhya Raghavan

National Law School of India Review

The project of harmonisation of patent laws around the world under the aegis of the TRIPS Agreement has interacted with national policies and objectives in respect of patents in both developed and developing countries. This interaction has been mediated through the judiciary and the pervasive influence of the judiciary has been essential for the success enjoyed so far. However, the localised perspectives of the judiciary have also hindered the global project of harmonisation to a significant extent as divergent standards and approaches have come forth in spite of similar statutory foundations. This article seeks to analyse specific illustrations that highlight …

Patenting Of Research Tools - Issues And Some Pointers, Zakir Thomas

National Law School of India Review

This paper presents a comprehensive analysis of the patenting of research tools. It outlines the essentials of research tools and addresses the concerns that have cropped up in the post-Genomic era with a special emphasis on the issue of access. It further evaluates the issue from a legal perspective against the backdrop of the TRIPS Agreement and makes a comparative analysis between jurisdictions. It also gives an overview of the possible consequences of such patenting for India and concludes by recommending amendments to tackle the challenges raised.