Intellectual Property

Policy Brief 127, 17 April 2024

Unlocking the Potential of Copyright Limitations and Exceptions (L&Es)

by Faith O. Majekolagbe

Copyright limitations and exceptions (L&Es) are vital tools for creativity, innovation, access to knowledge and education, and human capital formation. All of these are crucial to the development of societies and achieving the United Nations’ Sustainable Development Goals (SDGs). A strong system of well-defined copyright L&Es guarantees the public adequate access and use of the cultural goods and knowledge that are critical to achieving development goals. This paper identifies and discusses specific clusters of L&Es that are essential for achieving the SDGs. These clusters should be recognized and implemented in copyright laws at national, regional, and international levels to strengthen development objectives. Instead of applying specific L&Es to all countries, regardless of their unique developmental needs, recognizing these clusters of L&Es could help design an approach to international copyright law that is centred around development. Ultimately, this approach would provide greater flexibility in designing development programs that align with the SDGs and recognize copyright law’s inherent development rationale.

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SouthViews No. 260, 20 March 2024

Patent rights and misappropriation of traditional knowledge: the case of the Amazonian Mirantã

By Marcos Vinício Chein Feres

This article aims to understand whether there are any signs of misappropriation enabled by the international patent system in the case of associated traditional knowledge to Mirantã, a plant (genetic resource – GR) found in the Amazon Basin. There is clear correspondence between the traditional uses of Mirantã and patent claims found, which are, or may at least hint at, evidence of the misappropriation of traditional knowledge. More generally, this confirms the perspective of the existence of a coloniality of knowledge as in many jurisdictions, due to the lack of measures to protect traditional knowledge against misappropriation (e.g., via a disclosure requirement in patent applications), these patents are for now deemed valid.

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SouthViews No. 258, 11 March 2024

New US Policy on Exercise of March-In Rights to Curb High Drug Prices: Lessons for the Global South

By Nirmalya Syam

In response to soaring prescription drug costs, the United States government recently announced proposed changes to the exercise of march-in rights under the Bayh-Dole Act, allowing federal agencies to license taxpayer-funded inventions to other parties based on factors such as accessibility and affordability. This article explores the implications of the US policy shift on global pharmaceutical pricing and access, particularly for developing countries. Drawing parallels between the US approach and flexibilities under intellectual property laws such as compulsory licensing and government use authorizations that are allowed under the WTO TRIPS Agreement, the article suggests that similar strategies could be employed by developing nations to address public health needs and economic considerations.

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Documento de investigación 195, 6 de marzo de 2024

Régimen de licencias obligatorias y uso público no comercial en Argentina 

Por Juan Ignacio Correa

Con la adopción del Acuerdo sobre los Aspectos de Propiedad Intelectual relacionados con el Comercio (ADPIC), la Argentina debió adaptarse a las nuevas reglas internacionales en materia de derecho de patentes. Uno de los puntos centrales del Acuerdo es la posibilidad de establecer diferentes formas de licencias obligatorias y uso gubernamental no comercial. Este documento analiza las condiciones previstas en el artículo 31 del ADPIC con ese fin y examina en detalle las diferentes causales de licencias obligatorias contempladas en la legislación argentina y las condiciones aplicables a cada una de ellas, así como para el uso de patentes por parte del gobierno con fines no comerciales. Finalmente, con base en el margen normativo del ADPIC y la legislación vigente, el documento discute el posible contenido de una reglamentación de licencias obligatorias y uso público no comercial que permita a la Argentina utilizar de manera efectiva esas herramientas cuando se presente alguna de las circunstancias previstas en la actual regulación.

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SouthViews No. 256, 22 February 2024

How Should the WHO Pandemic Treaty Negotiations Tackle Intellectual Property?

By Viviana Muñoz Tellez

The WHO pandemic instrument should commit the Parties to limit the exclusionary effects that government-granted patents and other IPRs may have during pandemics in support of rapid diffusion of new vaccines, diagnostics, medicines and other tools and facilitate collaboration and freedom to operate. The current draft text of Article 11 would not make any change to the status quo.

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Research Paper 194, 15 February 2024

Implementation of TRIPS Flexibilities and Injunctions: A Case Study of India

by Shirin Syed

The proponents of intellectual property (IP) have increasingly utilized injunctions with indiscriminate propensity as a strategic tool for IP enforcement, resulting in adverse socio-economic implications, including the enjoyment of human rights. This trend has eclipsed the flexibilities provided in the Doha Declaration on the TRIPS Agreement and Public Health. Although a substantial volume of the literature focuses on the flexibilities of compulsory license or scope of patentability, little attention has been given to the flexibilities related to IP enforcement. Discussing the implications of IP enforcement on public interest, the paper examines the gaps in the articulation of flexibilities of intellectual property rights (IPRs) enforcement, with special reference to injunctions in India. It examines how far the courts consider the implications on the enjoyment of fundamental rights while granting injunctions on patents. This paper argues that the Indian courts have deviated from the cautious approach provisioned under the TRIPS flexibilities that allows the courts to consider the public interest aspect and human rights implications while granting injunctions in patent litigation. Moreover, it asserts that the courts should exercise prudence in granting injunctive relief in cases involving patent infringement, and take into account the potential impact of such relief on the exercise of human rights. This suggests a need for a careful examination of the potential implications of injunctive remedies in such cases.

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Policy Brief 125, 12 February 2024

WTO MC13: TRIPS Issues and Technology Transfer

 by Viviana Munoz Tellez, Nirmalya Syam

This Policy Brief discusses issues concerning trade, intellectual property, and technology transfer that are most relevant for consideration at the 13th World Trade Organization (WTO) Ministerial Conference (MC13) in February 2024 and inclusion in its outcomes.

The following recommendations are proposed:

  • TRIPS non-violation and situation complaints: MC13 Decision on the scope and modalities of non-violation and situation complaints under the Agreement on Trade related Aspects of Intellectual Property Rights (TRIPS). A second option is to extend the moratorium.
  • TRIPS, diagnostics and therapeutics for COVID-19: MC13 Decision that extends the MC12 TRIPS waiver Decision (only applicable to vaccines) to diagnostics and therapeutics
  • Relationship between TRIPS and the Convention on Biological Diversity: to be addressed in the MC13 Outcome Document
  • Follow up to the MC12 Declaration on the WTO Response to the COVID-19 Pandemic and Preparedness for Future Pandemics: to be addressed in the MC13 Outcome Document
  • Relationship of trade and technology transfer: include in the MC13 Outcome Document to reinvigorate and give direction to the Working Group on Trade and Technology Transfer (WGTTT) and increase attention in all relevant bodies on how the WTO can promote technology transfer

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Documento de investigación 192, 30 de enero de 2024

Pautas para el examen de patentes sobre anticuerpos monoclonales  

Por Juan Correa, Catalina de la Puente, Ramiro Picasso y Constanza Silvestrini

La investigación tiene como objetivo conocer el estado de las solicitudes de patente en materia de anticuerpos monoclonales (mAbs). El documento analiza las distintas estrategias en materia de reivindicaciones que utilizan los solicitantes con el fin de obtener protección por derecho de patentes. Se utilizó como fuente de información la base de datos construida y descrita en el Documento de Investigación No. 186 de South Centre. Se indaga sobre las principales reivindicaciones utilizadas en el campo de los mAbs, el tipo de clasificación CIP y el tipo de invención (producto o proceso) más frecuente en las patentes concedidas vigentes o caducas en Argentina. Finalmente, se analiza la utilización de las directrices de patentamiento argentinas en el caso de mAbs y se hacen recomendaciones respecto de posibles reformas a dichas directrices.

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Research Paper 191, 25 January 2024

TRIPS Waiver Decision for Equitable Access to Medical Countermeasures in the Pandemic: COVID-19 Diagnostics and Therapeutics

By Nirmalya Syam and Muhammad Zaheer Abbas, PhD

The Marrakesh Agreement Establishing the World Trade Organization (WTO) allows WTO Members to agree to temporarily waive obligations under the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement). However, the TRIPS Decision adopted by the 12th WTO Ministerial Conference in June 2022, after lengthy and protracted negotiations lasting for 20 months in the middle of a pandemic, allowed only a fragment of the waiver proposal submitted by India and South Africa. Moreover, since the adoption of the Decision there has been an impasse in the WTO about extending the Decision to COVID-19 diagnostics and therapeutics even though the WTO Members were mandated by the Decision to decide on this matter within six months of the Decision. This research paper analyses the current state of play and concludes that there is a need to immediately and unconditionally extend the Decision to COVID-19 diagnostics and therapeutics. Moreover, the paper suggests options for how the TRIPS flexibilities can be optimally utilized in a pandemic situation without developing countries being resigned to the vagaries of negotiations on a waiver which is supposed to be an urgent emergency solution. In this regard, the paper also suggests options that could be considered for reforming the process of decision-making on a waiver proposal to ensure that decisions on waivers are taken in a timely and expedited manner without being negotiated for an extensive period of time in the midst of an emergency.

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Research Paper 190, 24 January 2024

Implementing the Doha Declaration in OAPI Legislation: Do Transition Periods Matter?

By Patrick Juvet Lowé Gnintedem

The Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement) provided for a number of transition periods allowing countries to engage in a phased implementation of their TRIPS obligations. More specifically, transition periods targeted the patenting of pharmaceutical products. The original deadlines for transition periods have expired for developed and developing country WTO members. However, based on the Doha Declaration on the TRIPS Agreement and Public Health and subsequent TRIPS Council decisions, least developed countries (LDCs) continue to benefit from extended transition periods. In the African Intellectual Property Organization (OAPI), after an amendment in 1999, the legal framework has evolved with the amendment of the Bangui Agreement, i.e., the Act of Bamako of 14 December 2015. As for the previous text, the newly amended Bangui Agreement consecrates the unification on industrial property amongst its seventeen Member States. The main objective of such an amendment remains to adapt its legal framework to the international environment and to the economic and social development needs of Member States. Yet only five OAPI Member States are developing countries; the twelve others are LDCs. Then the question arises: do transition periods consecrated pursuant to the Doha Declaration still matter for LDCs who have agreed to be subjected to the OAPI legislation? This paper points out that transition periods remain relevant in OAPI countries by application of the more favorable rule between the Bangui Agreement and the WTO TRIPS Council decisions. It is however noted that the OAPI current legal framework is still problematic, while its LDCs members are underutilizing this flexibility.

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South Centre Report, 16 January 2024

Identifying Legal Challenges for Farmers’ Innovation

By Saurav Ghimire

On 9 October 2023, an expert workshop on “Identifying Legal Challenges for Farmers’ Innovation” was organised at the Centre for Private and Economic Law, Vrije Universiteit Brussel, in collaboration with the South Centre and Université Catholique de Louvain. The hybrid event gathered experts to discuss the challenges for farmers’ innovation, particularly those emerging from regulatory regimes. The workshop brainstormed policy and regulatory hindrances to farmers’ involvement in plant breeding, namely, in access to breeding materials, access to the market and reward/protection for the innovation.

The expert workshop was organised as a part of a joint research project, “Farmers as Plant Breeders: Legal Mechanisms to Foster Farmers’ Innovation”, led by Prof. Christine Frison (Université Catholique de Louvain), Prof. Kim Van der Borght (Vrije Universiteit Brussel), and  Prof. Carlos Correa (South Centre). The research project is funded by the Research Foundation Flanders (FWO).

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Policy Brief 123, 14 December 2023

The WHO CA+ Discussions on Pathogen Access and Benefit Sharing: State of Play

 By Nirmalya Syam

This brief explores the scope of a World Health Organization (WHO) pathogen access and benefit-sharing (PABS) mechanism as a possible outcome of the negotiations ongoing in the WHO Intergovernmental Negotiating Body (INB) for a WHO Convention, Agreement or other Instrument (WHO CA+) for pandemic prevention, preparedness, response and recovery (PPRR). After seven sessions of the INB, substantial differences remain between developed and developing countries on the PABS system. While the text contains specific obligations on rapid sharing of pathogen material and genetic sequence information reflective of the primary interest of developed countries to get such access outside the framework of the Nagoya Protocol to the Convention on Biological Diversity through a specialized WHO instrument such as the PABS system under the WHO CA+, the current text continues to be weak in terms of effectively operationalizing fair and equitable-benefit sharing. To that end, it is critical that detailed provisions on standard material transfer agreements, data access relating to their genomic sequence information and specific obligations on monetary and non-monetary benefit-sharing by recipients of pathogen material and sequence information are included in the provisions establishing the PABS system. Therefore, it is important that the proposals that have been made in this regard by developing countries are incorporated in the draft negotiating text.

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