Intellectual property, TRIPS and development

Intellectual property is crucial to the promotion of innovation. It provides an incentive to innovate as well as security for investment in innovation. The industries of the 21st century-information technology, biotechnology, pharmaceuticals, communications, education and entertainment – are all knowledge-based. The WTO Agreement on Trade-Related Aspects of Intellectual Property Rights (the TRIPS Agreement), adopted in 1994 at the conclusion of the Uruguay Round of trade negotiations, requires all WTO member countries to provide for the protection and enforcement of intellectual property rights. Having forged a link for the first time between intellectual property rights and the international trading system, the adoption of TRIPS means that any country that aims to participate fully in the global economy needs to understand the role of intellectual property and align its intellectual property laws and practices with the international minimum standards prescribed by TRIPS. However, for developing and least-developed countries, the implementation of intellectual property systems and enforcement mechanisms raises questions and challenges. Does recognition and enforcement of intellectual property serve their development needs and objectives? Does TRIPS encourage or hinder the transfer of technologies to developing and least-developed countries, particularly those that meet urgent needs in areas such as public health, food security, water and energy? What is the effect of TRIPS on developing countries’ access to knowledge and information? Is there scope for flexibility in implementation of TRIPS in pursuit of development strategies?

Intellectual Property and Joint Ventures

As in the first edition of the book, this chapter outlines the most important ways in which intellectual property is protected in Australia, and also the factors which affect the rights of joint venture participants in the absence of specific agreement between such participants. It then examines particular issues which may be considered in preparing appropriate documentation for any joint venture which involves the utilisation or generation of intellectual property to ensure that the joint venture participants achieve their desired result in terms of the allocation of ownership and control of such rights. The analysis includes and explanation of the special considerations which affect co-operation in research between industry and a university or government research institution. Finally, the rights of the joint venturers to intellectual property upon termination of the joint ventures are considered. The chapter incorporates the legislative changes and new cases in the field since the publication of the first edition.

Intellectual Property – What Went Wrong!

In its simplest form the patent system is designed to encourage the disclosure of innovative thought in exchange for a period of exclusivity in which the grantee of the rights may profit from such knowledge. I will attempt in this paper to show that patentees seeking to enforce their patents in Australia will face great difficulty through a number of potentially fatal pitfalls. I also submit that as a result of the decisions in Australia in reported patent cases in the last ten years, legal advisers should place their clients on notice that if they are trying to enforce their patents they are unlikely to succeed...

Intellectual Property Laws Amendment Bill 2013

This submission relates to the proposed amendment of the Crown Use provisions in the Patents Act 1990 (Cth) (“the Patents Act”),which are contained in Intellectual Property Laws Amendment Bill 2013 (“The Bill”). Specifically, the submission relates to the method of calculation of the remuneration payable to the patent applicant/owner in circumstances where the Crown exercises its rights under Chapter 17 of the Patents Act.

A Submission to the Advisory Council on Intellectual Property in Relation to the Issues Paper Relating to the Enforcement of Trade Marks - February 2002

With respect to “shape” marks, there would appear to be a “break”, imposed by the Australian Courts, in the logical conclusion that registration of a shape, which performs a functional purpose, or even further, is indistinguishable from the shape of the item or product, creates a perpetual monopoly in the manufacture of that product.

Protection of intellectual property in Islamic Shari'a and the development of the Libyan intellectual property system

This thesis introduces a theory of intellectual property (IP) law informed by Islamic Shari'a. The sources and objectives of Islamic Shari'a support the theoretical framework underpinning IP laws. However, they strongly emphasise the importance of development goals in intellectual property policy making. This thesis argues that an optimal IP system from an Islamic perspective shall not overprotect IP holders but should instead endeavor to empower people to access knowledge resources to enhance access to education, public health and economic opportunities. Taking Libya as a case study, this thesis makes recommendations for the improvement of IP law that have important broader implications for developing countries.

Inventing life: Intellectual property and the new biology

In 2009, the National Research Council of the National Academies released a report on A New Biology for the 21st Century. The council preferred the term ‘New Biology’ to capture the convergence and integration of the various disciplines of biology. The National Research Council stressed: ‘The essence of the New Biology, as defined by the committee, is integration—re-integration of the many sub-disciplines of biology, and the integration into biology of physicists, chemists, computer scientists, engineers, and mathematicians to create a research community with the capacity to tackle a broad range of scientific and societal problems.’ They define the ‘New Biology’ as ‘integrating life science research with physical science, engineering, computational science, and mathematics’. The National Research Council reflected: 'Biology is at a point of inflection. Years of research have generated detailed information about the components of the complex systems that characterize life––genes, cells, organisms, ecosystems––and this knowledge has begun to fuse into greater understanding of how all those components work together as systems. Powerful tools are allowing biologists to probe complex systems in ever greater detail, from molecular events in individual cells to global biogeochemical cycles. Integration within biology and increasingly fruitful collaboration with physical, earth, and computational scientists, mathematicians, and engineers are making it possible to predict and control the activities of biological systems in ever greater detail.' The National Research Council contended that the New Biology could address a number of pressing challenges. First, it stressed that the New Biology could ‘generate food plants to adapt and grow sustainably in changing environments’. Second, the New Biology could ‘understand and sustain ecosystem function and biodiversity in the face of rapid change’. Third, the New Biology could ‘expand sustainable alternatives to fossil fuels’. Moreover, it was hoped that the New Biology could lead to a better understanding of individual health: ‘The New Biology can accelerate fundamental understanding of the systems that underlie health and the development of the tools and technologies that will in turn lead to more efficient approaches to developing therapeutics and enabling individualized, predictive medicine.’ Biological research has certainly been changing direction in response to changing societal problems. Over the last decade, increasing awareness of the impacts of climate change and dwindling supplies of fossil fuels can be seen to have generated investment in fields such as biofuels, climate-ready crops and storage of agricultural genetic resources. In considering biotechnology’s role in the twenty-first century, biological future-predictor Carlson’s firm Biodesic states: ‘The problems the world faces today – ecosystem responses to global warming, geriatric care in the developed world or infectious diseases in the developing world, the efficient production of more goods using less energy and fewer raw materials – all depend on understanding and then applying biology as a technology.’ This collection considers the roles of intellectual property law in regulating emerging technologies in the biological sciences. Stephen Hilgartner comments that patent law plays a significant part in social negotiations about the shape of emerging technological systems or artefacts: 'Emerging technology – especially in such hotbeds of change as the life sciences, information technology, biomedicine, and nanotechnology – became a site of contention where competing groups pursued incompatible normative visions. Indeed, as people recognized that questions about the shape of technological systems were nothing less than questions about the future shape of societies, science and technology achieved central significance in contemporary democracies. In this context, states face ongoing difficulties trying to mediate these tensions and establish mechanisms for addressing problems of representation and participation in the sociopolitical process that shapes emerging technology.' The introduction to the collection will provide a thumbnail, comparative overview of recent developments in intellectual property and biotechnology – as a foundation to the collection. Section I of this introduction considers recent developments in United States patent law, policy and practice with respect to biotechnology – in particular, highlighting the Myriad Genetics dispute and the decision of the Supreme Court of the United States in Bilski v. Kappos. Section II considers the cross-currents in Canadian jurisprudence in intellectual property and biotechnology. Section III surveys developments in the European Union – and the interpretation of the European Biotechnology Directive. Section IV focuses upon Australia and New Zealand, and considers the policy responses to the controversy of Genetic Technologies Limited’s patents in respect of non-coding DNA and genomic mapping. Section V outlines the parts of the collection and the contents of the chapters.

Climate-ready crops: Intellectual property, agriculture, and climate change

In The Climate Change Review, Ross Garnaut emphasised that ‘Climate change and climate change mitigation will bring about major structural change in the agriculture, forestry and other land use sectors’. He provides this overview of the effects of climate change on food demand and supply: ‘Domestic food production in many developing countries will be at immediate risk of reductions in agricultural productivity due to crop failure, livestock loss, severe weather events and new patterns of pests and diseases.’ He observes that ‘Changes to local climate and water availability will be key determinants of where agricultural production occurs and what is produced.’ Gert Würtenberger has commented that modern plant breeding is particularly concerned with addressing larger issues about nutrition, food security and climate change: ‘Modern plant breeding has an increasing importance with regard to the continuously growing demand for plants for nutritional and feeding purposes as well as with regard to renewal energy sources and the challenges caused by climate changes.’ Moreover, he notes that there is a wide array of scientific and technological means of breeding new plant varieties: ‘Apart from classical breeding, technologies have an important role in the development of plants that satisfy the various requirements that industrial and agricultural challenges expect to be fulfilled.’ He comments: ‘Plant variety rights, as well as patents which protect such results, are of increasingly high importance to the breeders and enterprises involved in plant development programmes.’ There has been larger interest in the intersections between sustainable agriculture, environmental protection and food security. The debate over agricultural intellectual property is a polarised one, particularly between plant breeders, agricultural biotechnology companies and a range of environmentalist groups. Susan Sell comments that there are complex intellectual property battles surrounding agriculture: 'Seeds are at the centre of a complex political dynamic between stakeholders. Access to seeds concerns the balance between private rights and public obligations, private ownership and the public domain, and commercial versus humanitarian objectives.' Part I of this chapter considers debates in respect of plant breeders’ rights, food security and climate change in relation to the UPOV Convention 1991. Part II explores efforts by agricultural biotechnology companies to patent climate-ready crops. Part III considers the report of the Special Rapporteur for Food, Olivier De Schutter. It looks at a variety of options to encourage access to plant varieties with climate adaptive or mitigating properties.

Intellectual property and global warming: Climate justice

Engaging in a close analysis of legal and political discourse, this chapter considers conflicts over intellectual property and climate change in three key arenas: climate law; trade law; and intellectual property law. In this chapter, it is argued that there is a need to overcome the political stalemates and deadlocks over intellectual property and climate change. It is essential that intellectual property law engage in a substantive fashion with the matrix of issues surrounding fossil fuels, clean technologies, and climate change at an international level. First, this chapter examines the debate over intellectual property and climate change under the auspices of the United Nations Framework Convention on Climate Change 1992, and the establishment of the UNFCCC Climate Technology Centre and Network. It recommends that the technology mechanism should address and deal with matters of intellectual property management and policy. Second, the piece examines the discussion of global issues in the World Intellectual Property Organization, WIPO GREEN. It supports the proposal for a Global Green Patent Highway to allow for the fast-tracking of intellectual property applications in respect of green technologies. Third, the chapter investigates the dispute in the TRIPS Council at the World Trade Organization over intellectual property, climate change, and development. This section focuses upon the TRIPS Agreement 1994. This chapter calls for a Joint Declaration on Intellectual Property and Climate Change from the UNFCCC, WIPO, and the WTO. The paper concludes that intellectual property should be reformed as part of a larger effort to promote climate justice. Rather than adopt a fragmented, piecemeal approach in various international institutions, there is a need for a co-ordinated and cohesive response to intellectual property in an age of runaway, global climate change. Patent law should be fossil fuel free. Intellectual property should encourage research, development, and diffusion of renewable energy and clean technologies. It is submitted that intellectual property law reform should promote climate justice in line with Mary Robinson’s Declaration on Climate Justice 2013.

Michael Kirby's challenge: Intellectual property, HIV/AIDS, and human rights

In July 2014, Melbourne hosted the 20th International AIDS Conference. The event opened, paying tribute to the late Dutch HIV/AIDS researcher Professor Joep Lange, with his image projected onto a screen, with the accompanying quotation: ‘If we can bring a bottle of Coke to every corner of Africa, we should be able to also deliver antiretroviral drugs.’

Intellectual property, innovation, and the environment (2014) edited by Peter Menell and Sarah Tran: A review

Peter S. Menell and Sarah M. Tran (ed.), Intellectual Property, Innovation and the Environment, Cheltenham (UK) and Northampton (MA): Edward Elgar, 2014, 756 pp Hardback 978 1 78195 160 6, http://www.e-elgar.com/bookentry_main.lasso?id=15063 There has been a longstanding deadlock over intellectual property and clean technologies in international climate talks. The United States — and other developed countries such as Japan, Denmark Germany, the United Kingdom, Australia, and New Zealand — have pushed for stronger and longer protection of intellectual property rights related to clean technologies. BASIC countries — such as Brazil, South Africa, India, and China — have pushed for greater flexibilities in respect of intellectual property for the purpose of addressing climate change and global warming. Small island states, least developed countries, and nations vulnerable to climate change have called for climate-adaptation and climate-mitigation technologies to be available in the public domain. In the lead-up to the United Nations Climate Summit in New York on the 23rd September 2014, it is timely to consider the debate over intellectual property, innovation, the environment, and climate change.

Environmental technologies, intellectual property and climate change (2013) edited by Abbe Brown

Abbe Brown from the University of Aberdeen, Scotland, is one of the leading international researchers on intellectual property and climate change. She is an intellectual dynamo. Her work brings together a mastery of intellectual property, with a strong interest in innovation theory and practice, and an engagement with public policy issues surrounding human rights, competition policy, and access to knowledge. Abbe Brown has shown a particular aptitude for tackling big ideas and wicked global problems, with intelligence, gusto, insight, and formidable wisdom.