Law Commons^™

Two Decades Of Trips In China, Peter K. Yu

Faculty Scholarship

This chapter reviews China’s engagement with the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) in the past twenty years. It begins by highlighting TRIPS-related developments in the first decade of China’s WTO membership. The chapter then discusses the country’s ‘innovative turn’ in the mid-2000s and the ramifications of its changing policy positions. This chapter continues to examine the US-China trade war, in particular the second TRIPS complaint that the United States filed against China in March 2018. It concludes with observations about the impact of the TRIPS Agreement on China, China’s impact on that agreement and how the …

Access To Medicines And Pharmaceutical Patents: Fulfilling The Promise Of Trips Article 31bis, Ezinne Miriam Igbokwe, Andrea Tosato

All Faculty Scholarship

The Agreement on Trade-Related Aspects of Intellectual Property (TRIPS) is one of the cornerstones of the World Trade Organization (WTO). TRIPS requires all WTO member countries (Members) to adopt minimum standards for the protection of intellectual property (IP). This international treaty is highly controversial. Its critics claim that TRIPS imposes a wealth transfer from poorer Members (net IP importers) to richer ones (net IP exporters). Its supporters maintain that trade between developing and developed economies cannot thrive without an internationally-harmonized IP framework. The most contentious issue has long been the impact of the TRIPS patents regime on access to medicines. …

Confronting Intellectual Property Nationalism, Cynthia M. Ho

Faculty Publications & Other Works

Stories about nations engaging in vaccine (and medical) nationalism by hoarding limited COVID-19 vaccines and treatments are widespread, but there is a hidden phenomenon that has exacerbated vaccine nationalism and prolonged the pandemic: intellectual property nationalism or “IP nationalism.” This Article coins and explains this term and highlights its negative impacts. Essentially, some nations, primarily of the Global North, are hoarding essential knowledge protected by intellectual property (IP). This Article argues that IP nationalism has contributed to millions of unnecessary deaths and limited the growth of the global economy. Meanwhile, countries and pharmaceutical companies obscure the role of IP nationalism …

Intellectual Property Through A Non-Western Lens: Patents In Islamic Law, Tabrez Y. Ebrahim

Faculty Scholarship

The intersection of secular, Western intellectual property law and Islamic law is undertheorized in legal scholarship. Yet the nascent and developing non-Western law of one form of intellectual property—patents—in Islamic legal systems is profoundly important for transformational innovation and economic development initiatives of Muslim-majority countries that comprise nearly one-fifth of the world’s population.

Recent scholarship highlights the tensions of intellectual property in Islamic law because religious considerations in an Islamic society do not fully align with Western notions of patents. As Islamic legal systems have begun to embrace patents in recent decades, theories of patents have presented conceptual and theological …

Facilitating Access To Cross-Border Supplies Of Patented Pharmaceuticals: The Case Of The Covid-19 Pandemic, Frederick M. Abbott

Scholarly Publications

The COVID-19 pandemic has brought into stark relief the gaps in global preparedness to address widespread outbreaks of deadly viral infections. This article proposes legal mechanisms for addressing critical issues facing the international community in terms of providing equitable access to vaccines, treatments, diagnostics, and medical equipment. On the supply side, the authors propose the establishment of mandatory patent pools ('Licensing Facilities') on a global or regional, or even national basis, depending upon the degree of cooperation that maybe achieved. The authors also discuss the importance of creating shared production facilities. On the demand side, the authors propose the establishment …

Kenya’S Intellectual Property Bill, 2020, And Its Shortcomings In Adopting All Lawful Trips Public Health Flexibilities, Brook K. Baker

Joint PIJIP/TLS Research Paper Series

Given the importance of access to medicines to human rights and well-being in Kenya, it is appropriate to analyze whether Kenya has currently incorporated the allowed public health flexibilities to the greatest extent possible in its draft Intellectual Property Bill, 2020. This analysis will focus on the patent, utility model, and enforcement measures only as they are the ones directly relevant to access to medicines and other health technologies. The analysis starts with the premise that Kenya wishes to avoid granting unwarranted patents on unworthy inventions, especially with respect to medicines and other health technologies. In particular, the assumption is …

Who Cares About Patents? Cross-Industry Differences In The Marginal Value Of Patent Term, Neel U. Sukhatme, Judd N.L. Cramer

Georgetown Law Faculty Publications and Other Works

How much do market participants in different industries value a marginal change in patent term (i.e., duration of patent protection)? We explore this research question by measuring the behavioral response of patentees to a rare natural experiment: a change in patent term rules, due to passage of the TRIPS agreement. We find significant heterogeneity in patentee behavior across industries, some of which follows conventional wisdom (patent term is important in pharmaceuticals) and some of which does not (it also appears to matter for some software). Our measure is highly correlated with patent renewal rates across industries, suggesting the marginal value …

Regime Shifting Of Ip Law Making And Enforcement From The Wto To The International Investment Regime, James T. Gathii, Cynthia M. Ho

Faculty Publications & Other Works

No abstract provided.

Patent Working Requirements: Historical And Comparative Perspectives, Marketa Trimble

Scholarly Works

At the beginning of the 20th century, commentators referred to patent working requirements as the most contentious contemporary concept in patent law, and working requirements were at the center of discussions about revisions to the Paris Convention. By the end of the 20th century it seemed that working requirements attracted less attention; the TRIPS Agreement did not expressly mention working requirements at all. However, some TRIPS provisions do arguably relate to such requirements; in fact, some commentators believe that the TRIPS Agreement prevents countries from maintaining such requirements, at least in some forms. Although the lack of interest in working …

A Collision Course Between Trips Flexibilities And Investor-State Proceedings, Cynthia M. Ho

Faculty Publications & Other Works

This Article discusses an important, yet understudied threat to patent, as well as other intellectual property sovereignty under TRIPS: pending and potential challenges by companies under international agreements protecting investments. Although such agreements have existed for decades, Philip Morris and Eli Lilly are blazing a new path for companies to sue countries they claim interfere with their intellectual property rights through so-called investor-state arbitrations. These suits seek hundreds of millions in compensation and even injunctive relief for alleged violations of internationally agreed intellectual property norms. The suits fundamentally challenge TRIPS flexibilities at the very time the Declaration on Patent Protection …

Drugs, Drugs Everywhere But Just Not For The Poor, Srividhya Ragavan

Faculty Scholarship

The objective for this article is to understand the legitimacy and limitations of US involvement in another country’s sovereign actions taken expressly in the public interest, or to protect public health, such as the compulsory licensing of pharmaceuticals.

Regulatory Flexibilities And Tensions In Public Health And Trade: An Asian Perspective, Locknie Hsu

Research Collection Yong Pung How School Of Law

Regulatory issues relating to public health are a source of tensions in recent trade and investment negotiations, treaties and disputes. Issues arising from the intersection between public health regulation and trade and investment treaties have given Asian states pause for thought. They have led to a critical need to confront the scope and meaning of legal obligations vis-a-vis public health and regulatory objectives, and their implications for stakeholder interests. The intersection and resulting tensions have already led the WTO, WHO and WIPO to work together in an unprecedented manner to address some of the issues at the global level. The …

Considering Trademark And Speech Rights Through The Lens Of Regulating Tobacco, Christine Haight Farley, Kavita Devaney

Articles in Law Reviews & Other Academic Journals

Many tobacco company trademarks, such as MARLBORO, are extremely valuable. But valuable trademarks are often vulnerable both to copyists and to parodists. Tobacco trademarks face the additional vulnerability of onerous public health regulations, which can limit their appearance and use. When tobacco companies challenge these health regulations they do so on the grounds that the regulations violate their First Amendment speech rights. The law that is applied in these challenges is well developed, clear and predictable. When tobacco companies challenge unauthorized third-party uses of their marks, the speech rights involved are dealt with in a distinctly different manner. Under trademark …

Are We Serious About Performers' Rights?, Mary Lafrance

Scholarly Works

Do performers have rights in the expressive works they help to create? Historically, the rights of performers have received far less attention that the rights of traditional authors. The law has been reluctant to recognize performers as authors and, to the extent that performers’ rights are recognized, they are secondary to, and more limited than, the rights of traditional authors. Recent developments, however, have brought performers’ intellectual property rights to the forefront. For a number of reasons, performers in the United States have increasingly begun to assert authorship rights in the works they help to create. In addition, recent international …

Considering Trademark And Speech Rights Through The Lens Of Regulating Tobacco, Christine Farley

Articles in Law Reviews & Other Academic Journals

Many tobacco company trademarks, such as MARLBORO, are extremely valuable. But valuable trademarks are often vulnerable both to copyists and to parodists. Tobacco trademarks face the additional vulnerability of onerous public health regulations, which can limit their appearance and use. When tobacco companies challenge these health regulations they do so on the grounds that the regulations violate their First Amendment speech rights. The law that is applied in these challenges is well developed, clear and predictable. When tobacco companies challenge unauthorized third-party uses of their marks, the speech rights involved are dealt with in a distinctly different manner. Under trademark …

Trips-Plus Trade And Investment Agreements: Why More May Be Less For Economic Development, Christine Farley

Articles in Law Reviews & Other Academic Journals

Conventional wisdom -- but not empirical research -- maintains that strong intellectual property (“IP”) rights trigger not only foreign direct investment, but also local innovation. Thus investors seek, and developing countries compete to offer, the highest levels of IP protections. But evaluating the level of IP protection in any given country has become increasingly complex. A proliferation of bilateral agreements, such as free trade agreements (“FTAs”) and bilateral investment treaties (“BITs”), intended to enhance the minimum standards set forth in The Agreement on Trade Related Aspects of Intellectual Property Rights (“TRIPS”), have created uncertainty about precisely what IP protections are …

Private Enforcement Of Trips By Applying The Eu Law Principles Of Direct Effect And State Liability, Saud Aldawsari

Law Student Publications

This comment is divided into three sections. Part I introduces the World Trad Organization (WTO) generally and analyzes the Trade Related Agreement on Intellectual Property Rights (TRIPS) agreement specifically. Part II discusses the proposed theory and its basis. It then introduces Novartis. The comment then explores the relevant EU laws and analyzes the jurisprudence of Direct Effect and State Liability. Part III applies EU law to Novartis.

Excluding Patentability Of Therapeutic Methods, Including Methods Using Pharmaceuticals, For The Treatment Of Humans Under Trade Related Aspects Of Intellectual Property Rights Article 27(3)(A), Michael Henry Davis

Law Faculty Articles and Essays

The Agreement on Trade Related Aspects of Intellectual Property Rights ("TRIPS"), the General Agreement on Tariffs and Trade ("GATT"), and the World Trade Organization ("WTO") debacle has radically altered the traditional ability of nations to adopt whatever patent regime seems appropriate to them. Instead, TRIPS requires all member nations, even those which never thought it appropriate to grant such state monopolies, to afford patent protection to areas which had never been granted before-most dramatically in the area of health related innovations and, most expensively, pharmaceuticals. Until TRIPS, most -- or at least a number approaching half -- countries simply did …

Intellectual Property And Public Health – A White Paper, Ryan G. Vacca, Jim Chen, Jay Dratler Jr., Tom Folsom, Timothy Hall, Yaniv Heled, Frank Pasquale, Elizabeth Reilly, Jeff Samuels, Kathy Strandburg, Kara Swanson, Andrew Torrance, Katharine Van Tassel

Akron Law Faculty Publications

On October 26, 2012, the University of Akron School of Law’s Center for Intellectual Property and Technology hosted its Sixth Annual IP Scholars Forum. In attendance were thirteen legal scholars with expertise and an interest in IP and public health who met to discuss problems and potential solutions at the intersection of these fields. This report summarizes this discussion by describing the problems raised, areas of agreement and disagreement between the participants, suggestions and solutions made by participants and the subsequent evaluations of these suggestions and solutions.

Led by the moderator, participants at the Forum focused generally on three broad …

Intellectual Property And Public Health – A White Paper, Ryan G. Vacca, James Ming Chen, Jay Dratler Jr., Thomas Folsom, Timothy S. Hall, Yaniv Heled, Frank A. Pasquale Iii, Elizabeth A. Reilly, Jeffrey Samuels, Katherine J. Strandburg, Kara W. Swanson, Andrew W. Torrance, Katharine A. Van Tassel

Law Faculty Scholarship

On October 26, 2012, the University of Akron School of Law’s Center for Intellectual Property and Technology hosted its Sixth Annual IP Scholars Forum. In attendance were thirteen legal scholars with expertise and an interest in IP and public health who met to discuss problems and potential solutions at the intersection of these fields. This report summarizes this discussion by describing the problems raised, areas of agreement and disagreement between the participants, suggestions and solutions made by participants and the subsequent evaluations of these suggestions and solutions. Led by the moderator, participants at the Forum focused generally on three broad …

Intellectual Property And Public Health – A White Paper, Ryan G. Vacca, James Ming Chen, Jay Dratler Jr., Thomas Folsom, Timothy S. Hall, Yaniv Heled, Frank A. Pasquale, Elizabeth A. Reilly, Jeffery Samuels, Katherine J. Strandburg, Kara W. Swanson, Andrew W. Torrance, Katharine A. Van Tassel

Faculty Scholarship

On October 26, 2012, the University of Akron School of Law’s Center for Intellectual Property and Technology hosted its Sixth Annual IP Scholars Forum. In attendance were thirteen legal scholars with expertise and an interest in IP and public health who met to discuss problems and potential solutions at the intersection of these fields. This report summarizes this discussion by describing the problems raised, areas of agreement and disagreement between the participants, suggestions and solutions made by participants and the subsequent evaluations of these suggestions and solutions. Led by the moderator, participants at the Forum focused generally on three broad …

The Need And Justification For A General Competition-Oriented Compulsory Licensing Regime, Kung-Chung Liu

Research Collection Yong Pung How School Of Law

There seems to be little or no discussion about the need of and justification for a general compulsory licensing that could be applicable to all IP laws. This author has previously argued, by referencing to competition law, in 2008 that it is paramount for the WTO to revise the TRIPS Agreement, so as to include substantive grounds for granting compulsory patent licenses. In so doing, the preservation of competition should be factored in as one of the public policy objectives. As a follow-up study this paper takes an IP-internal approach (therefore will only consult competition law in a very limited …

Extraterritorial Intellectual Property Enforcement In The European Union, Marketa Trimble

Scholarly Works

This paper was prepared for the 2011 ABILA International Law Weekend – West volume of the Southwestern Journal of International Law. It addresses extraterritorial enforcement of intellectual property rights in the European Union. The maximum length of the paper was set by the Journal.

The problems associated with extraterritorial enforcement of intellectual property rights in the European Union (the “EU”) may be divided into three categories: enforcement of unitary EU-wide rights, enforcement of multiple national rights, and enforcement of rights based on one national law with extraterritorial effects on activities in other countries. Although these are three distinct categories of …

International Cooperation And The Patent-Antitrust Intersection, Stephen Yelderman

Journal Articles

Commentators have long recognized the need to coordinate questions at the patent-antitrust intersection with other policy levers available under patent law. In the international context, however, control over patent policy has been fractured and entrusted to diverse decisionmakers. Many details of patent law are tightly coordinated by international agreement, while others related to antitrust are left to national discretion. This Article evaluates the consequences of this fracture, and notes ways in which the prevailing treaty regimes (the Paris Convention and the TRIPS Agreement) distort incentives for national policymaking. National discretion at the patent-antitrust intersection can be expected to result in …

Special 301 Of The Trade Act Of 1974 And Global Access To Medicine, Sean M. Flynn

PIJIP Faculty Scholarship

Since its inception in 1988, the United States Trade Representative’s “Special 301” adjudication of foreign intellectual property law standards has been used to promote policies restricting access to affordable medications around the world. President-elect Obama released a platform promising to “break the stranglehold that a few big drug and insurance companies have on these life-saving drugs” and pledged support for “the rights of sovereign nations to access quality-assured, low-cost generic medication to meet their pressing public health needs.” The 2009 and 2010 Special 301 reports, however, indicate that the Obama Administration has not yet implemented this pledge into administration trade …

Special 301 Of The Trade Act Of 1974 And Global Access To Medicine, Sean Flynn

Articles in Law Reviews & Other Academic Journals

Since its inception in 1988, the United States Trade Representative’s “Special 301” adjudication of foreign intellectual property law standards has been used to promote policies restricting access to affordable medications around the world. President-elect Obama released a platform promising to “break the stranglehold that a few big drug and insurance companies have on these life-saving drugs” and pledged support for “the rights of sovereign nations to access quality-assured, low-cost generic medication to meet their pressing public health needs.” The 2009 and 2010 Special 301 reports, however, indicate that the Obama Administration has not yet implemented this pledge into administration trade …

Trips And Human Rights: The Case Of India, Subramanya Sirish Tamvada

Articles in Law Reviews & Journals

The twenty-first century has seen a rapid growth of two regimes: the intellectual property rights regime and the human rights regime. On one hand, growth of multinational corporations has led to a stronger and stricter intellectual property rights regime. On the other hand, human rights have gained primacy in public as well as political debates. Developing countries have argued that intellectual property rights and Human Rights often come into conflict, particularly when implementing their international obligations under TRIPS. Nevertheless, developing countries are forced to provide better intellectual property protection. There is a need to give heed to the voices of …

Geographic Trademarks And The Protection Of Competitor Communication, Robert Brauneis

GW Law Faculty Publications & Other Works

Over the last 25 years, brand names that incorporate geographic terms have become easier to register immediately at the U.S. Patent and Trademark Office, without having to demonstrate acquired distinctiveness or "secondary meaning." This is largely due to two developments. The first is the rise of a subjective "goods-place association" test, under which an examiner must show that consumers would understand the brand name as claiming geographic origin before refusing registration. The second is the Federal Circuit's interpretation of the NAFTA Implementation Act as requiring a showing of materiality before refusing to register a trademark as primarily geographically deceptively misdescriptive. …

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 …