Cynthia M. Ho
- Published in print:
- 2011
- Published Online:
- May 2011
- ISBN:
- 9780195390124
- eISBN:
- 9780199894536
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195390124.003.0006
- Subject:
- Law, Intellectual Property, IT, and Media Law
This chapter aims to bring clarity to the contentious and confusing question of what types of compulsory licenses are permissible under TRIPS. It first clarifies the actual TRIPS rules on compulsory ...
More
This chapter aims to bring clarity to the contentious and confusing question of what types of compulsory licenses are permissible under TRIPS. It first clarifies the actual TRIPS rules on compulsory licenses and, in particular, distills the dozen complex provisions regarding compulsory licensing into more logical categories for explanation. It also provides an illustration of how a country can craft a compulsory licensing law to promote access to medicine while simultaneously complying with TRIPS. The chapter concludes with a discussion of issues beyond the scope of TRIPS that countries must consider in connection with the benefits and costs of issuing compulsory licenses. It provides an essential background to understanding a procedure involving a “waiver” of one of the usual TRIPS requirements to help provide low-cost drugs to poor countries.Less
This chapter aims to bring clarity to the contentious and confusing question of what types of compulsory licenses are permissible under TRIPS. It first clarifies the actual TRIPS rules on compulsory licenses and, in particular, distills the dozen complex provisions regarding compulsory licensing into more logical categories for explanation. It also provides an illustration of how a country can craft a compulsory licensing law to promote access to medicine while simultaneously complying with TRIPS. The chapter concludes with a discussion of issues beyond the scope of TRIPS that countries must consider in connection with the benefits and costs of issuing compulsory licenses. It provides an essential background to understanding a procedure involving a “waiver” of one of the usual TRIPS requirements to help provide low-cost drugs to poor countries.
Jean Tirole
- Published in print:
- 2006
- Published Online:
- September 2006
- ISBN:
- 9780195305197
- eISBN:
- 9780199783519
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/0195305191.003.0020
- Subject:
- Economics and Finance, Development, Growth, and Environmental
This essay focuses on the impact of intellectual property rights (IPRs) on low- and middle-income countries’ health care. There are two different reasons why poor countries may not have access to ...
More
This essay focuses on the impact of intellectual property rights (IPRs) on low- and middle-income countries’ health care. There are two different reasons why poor countries may not have access to needed vaccines and drugs. In the case of global diseases, such as diabetes or cancer, patents may hinder the diffusion of pharmaceuticals. In the case of neglected or tropical diseases, such as malaria, tuberculosis, and leishmaniasis, the corresponding vaccines or drugs are not developed because of low profitability due to the poverty of potential customers. The important role of compulsory licensing for low- and middle-income countries is discussed.Less
This essay focuses on the impact of intellectual property rights (IPRs) on low- and middle-income countries’ health care. There are two different reasons why poor countries may not have access to needed vaccines and drugs. In the case of global diseases, such as diabetes or cancer, patents may hinder the diffusion of pharmaceuticals. In the case of neglected or tropical diseases, such as malaria, tuberculosis, and leishmaniasis, the corresponding vaccines or drugs are not developed because of low profitability due to the poverty of potential customers. The important role of compulsory licensing for low- and middle-income countries is discussed.
Cynthia M. Ho
- Published in print:
- 2011
- Published Online:
- May 2011
- ISBN:
- 9780195390124
- eISBN:
- 9780199894536
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195390124.003.0007
- Subject:
- Law, Intellectual Property, IT, and Media Law
This chapter builds upon the basic rules for compulsory licenses under TRIPS (Chapter 5) and also provides a complementary examination of compulsory licenses. It introduces competing patent ...
More
This chapter builds upon the basic rules for compulsory licenses under TRIPS (Chapter 5) and also provides a complementary examination of compulsory licenses. It introduces competing patent perspectives; it provides a case study of Thailand's recent compulsory licenses to explain some of the confusion and controversy concerning them. In particular, the lens of competing perspectives is used to provide an enriched understanding of why there has been so much confusion concerning compulsory licensing. In addition, this introduction to competing patent perspectives constructs a framework for subsequent chapters that revisit how such perspectives have played a role in issues involving access to medicine.Less
This chapter builds upon the basic rules for compulsory licenses under TRIPS (Chapter 5) and also provides a complementary examination of compulsory licenses. It introduces competing patent perspectives; it provides a case study of Thailand's recent compulsory licenses to explain some of the confusion and controversy concerning them. In particular, the lens of competing perspectives is used to provide an enriched understanding of why there has been so much confusion concerning compulsory licensing. In addition, this introduction to competing patent perspectives constructs a framework for subsequent chapters that revisit how such perspectives have played a role in issues involving access to medicine.
Cynthia M. Ho
- Published in print:
- 2011
- Published Online:
- May 2011
- ISBN:
- 9780195390124
- eISBN:
- 9780199894536
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195390124.003.0008
- Subject:
- Law, Intellectual Property, IT, and Media Law
This chapter explains an important, yet often misunderstood exception to the TRIPS requirement that a compulsory license must be issued predominantly for domestic use (except where issued to address ...
More
This chapter explains an important, yet often misunderstood exception to the TRIPS requirement that a compulsory license must be issued predominantly for domestic use (except where issued to address anticompetitive conduct). It assumes an understanding of the usual compulsory licensing requirements addressed in Chapter 5 and builds upon it. The WTO Council has created an official waiver (“the Waiver”) of the usual domestic use requirement to help countries export low-cost generic drugs made under a compulsory license to predominantly poor countries. The chapter explains when the Waiver is relevant, as well as the additional requirements necessary to use it beyond those that apply to all compulsory licenses. It ends with an evaluation of the effectiveness of the Waiver in achieving its intended purpose.Less
This chapter explains an important, yet often misunderstood exception to the TRIPS requirement that a compulsory license must be issued predominantly for domestic use (except where issued to address anticompetitive conduct). It assumes an understanding of the usual compulsory licensing requirements addressed in Chapter 5 and builds upon it. The WTO Council has created an official waiver (“the Waiver”) of the usual domestic use requirement to help countries export low-cost generic drugs made under a compulsory license to predominantly poor countries. The chapter explains when the Waiver is relevant, as well as the additional requirements necessary to use it beyond those that apply to all compulsory licenses. It ends with an evaluation of the effectiveness of the Waiver in achieving its intended purpose.
Feroz Ali
- Published in print:
- 2016
- Published Online:
- April 2016
- ISBN:
- 9780199463480
- eISBN:
- 9780199086344
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199463480.003.0005
- Subject:
- Law, Intellectual Property, IT, and Media Law
The shift from working models of inventions to written disclosures allowed patentees to license inventions solely on the basis of the written specification that passed muster at the patent office. ...
More
The shift from working models of inventions to written disclosures allowed patentees to license inventions solely on the basis of the written specification that passed muster at the patent office. Harmonization of patent laws across nations allowed patentees to be practising entities in one country and non-practising entities in another. This chapter addresses how compulsory licences solve the problem of picketing patents—patents that are not worked locally. The aspect of patents as negative rights and the concept of working of the patent are explored. This chapter further examines the identification and classification of various types of compulsory licences and details the provisions in the TRIPS that allow for the grant of such licences. An examination of India’s first compulsory licence is followed by an explanation of the features that set apart a market-initiated compulsory licence.Less
The shift from working models of inventions to written disclosures allowed patentees to license inventions solely on the basis of the written specification that passed muster at the patent office. Harmonization of patent laws across nations allowed patentees to be practising entities in one country and non-practising entities in another. This chapter addresses how compulsory licences solve the problem of picketing patents—patents that are not worked locally. The aspect of patents as negative rights and the concept of working of the patent are explored. This chapter further examines the identification and classification of various types of compulsory licences and details the provisions in the TRIPS that allow for the grant of such licences. An examination of India’s first compulsory licence is followed by an explanation of the features that set apart a market-initiated compulsory licence.
Pedro Roffe and Gina Vea
- Published in print:
- 2008
- Published Online:
- January 2009
- ISBN:
- 9780195342109
- eISBN:
- 9780199866823
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195342109.003.0004
- Subject:
- Law, Intellectual Property, IT, and Media Law
This chapter traces the chain of events and political debate surrounding the evolution of the international intellectual property (IP) architecture from the establishment of the Paris Convention in ...
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This chapter traces the chain of events and political debate surrounding the evolution of the international intellectual property (IP) architecture from the establishment of the Paris Convention in the 19th century, to reform efforts by developing countries in the 1970s, and the recent initiative in WIPO on a Development Agenda. It illustrates that tensions around striking an appropriate balance between public interests and private rights have persisted since the inception of the IP system. Furthermore, it shows that the establishment of the Paris Convention was the result of a strategic compromise between those who wanted to promote the recognition of patents beyond national boundaries, and those who feared that outright protection of foreign inventions might hamper local industrialization. Countries have continued to grapple with IP and development through the five revision conferences of the Paris Convention, waves of national reforms and attempts to rebalance the international IP system, the advent of the TRIPS Agreement, and finally the adoption of the WIPO Development Agenda.Less
This chapter traces the chain of events and political debate surrounding the evolution of the international intellectual property (IP) architecture from the establishment of the Paris Convention in the 19th century, to reform efforts by developing countries in the 1970s, and the recent initiative in WIPO on a Development Agenda. It illustrates that tensions around striking an appropriate balance between public interests and private rights have persisted since the inception of the IP system. Furthermore, it shows that the establishment of the Paris Convention was the result of a strategic compromise between those who wanted to promote the recognition of patents beyond national boundaries, and those who feared that outright protection of foreign inventions might hamper local industrialization. Countries have continued to grapple with IP and development through the five revision conferences of the Paris Convention, waves of national reforms and attempts to rebalance the international IP system, the advent of the TRIPS Agreement, and finally the adoption of the WIPO Development Agenda.
Srividhya Ragavan
- Published in print:
- 2012
- Published Online:
- September 2012
- ISBN:
- 9780199840670
- eISBN:
- 9780199949786
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199840670.003.0006
- Subject:
- Law, Intellectual Property, IT, and Media Law
This chapter discusses the issue of access-to-medication in developing countries. It notes that these developing countries have struggled to balance patent rights with the issue of ...
More
This chapter discusses the issue of access-to-medication in developing countries. It notes that these developing countries have struggled to balance patent rights with the issue of access-to-medication. India and Brazil, for example, have formed detailed compulsory licensing provisions, which are continually questioned by the more developed signatories of TRIPS. It then determines if and how developed countries provided access to medication to the marginalized, and studies the concept of patent balancing and the issue of price control of prescription drugs.Less
This chapter discusses the issue of access-to-medication in developing countries. It notes that these developing countries have struggled to balance patent rights with the issue of access-to-medication. India and Brazil, for example, have formed detailed compulsory licensing provisions, which are continually questioned by the more developed signatories of TRIPS. It then determines if and how developed countries provided access to medication to the marginalized, and studies the concept of patent balancing and the issue of price control of prescription drugs.
Srividhya Ragavan
- Published in print:
- 2012
- Published Online:
- September 2012
- ISBN:
- 9780199840670
- eISBN:
- 9780199949786
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199840670.001.0001
- Subject:
- Law, Intellectual Property, IT, and Media Law
For developing countries, the concept of sustainable development, as opposed to rapid pockets of development, embodies great promise for socio-political reasons. Most analyses of development, ...
More
For developing countries, the concept of sustainable development, as opposed to rapid pockets of development, embodies great promise for socio-political reasons. Most analyses of development, however, have focused on either trade mechanisms or intellectual-property regimes, which has resulted in overly narrow and sometimes paradoxical conclusions, with corresponding policy measures that have promised far more than they can deliver. While each of these mechanisms has benefits and disadvantages, questions about how they would interact and what kind of results they produce remain largely unexplored. Similarly, almost all of these regimes provide generalized solutions that developing countries tend to denounce as ill-fitting. There are several flexibilities that can be used as effective tools, but knowing which flexibility applies best to what context remains contentious. This book examines the interaction between trade and intellectual-property regimes (using the patent regime in India as the focal point) in an integrated developmental framework to determine whether and how sustainable economic growth can be achieved in developing countries. This book examines a number of important questions: Is compulsory licensing the best way to provide access to medication or is patent protection more efficient? Should innovation in plant breeding be protected at all? If so, should it be using patents or a sui generis mechanism?Less
For developing countries, the concept of sustainable development, as opposed to rapid pockets of development, embodies great promise for socio-political reasons. Most analyses of development, however, have focused on either trade mechanisms or intellectual-property regimes, which has resulted in overly narrow and sometimes paradoxical conclusions, with corresponding policy measures that have promised far more than they can deliver. While each of these mechanisms has benefits and disadvantages, questions about how they would interact and what kind of results they produce remain largely unexplored. Similarly, almost all of these regimes provide generalized solutions that developing countries tend to denounce as ill-fitting. There are several flexibilities that can be used as effective tools, but knowing which flexibility applies best to what context remains contentious. This book examines the interaction between trade and intellectual-property regimes (using the patent regime in India as the focal point) in an integrated developmental framework to determine whether and how sustainable economic growth can be achieved in developing countries. This book examines a number of important questions: Is compulsory licensing the best way to provide access to medication or is patent protection more efficient? Should innovation in plant breeding be protected at all? If so, should it be using patents or a sui generis mechanism?
Cynthia M. Ho
- Published in print:
- 2014
- Published Online:
- May 2014
- ISBN:
- 9780199334278
- eISBN:
- 9780199361106
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199334278.003.0015
- Subject:
- Law, Intellectual Property, IT, and Media Law
This chapter addresses the controversial topic of compulsory licenses by considering the international legal framework in conjunction with insights from social science research. The chapter suggests ...
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This chapter addresses the controversial topic of compulsory licenses by considering the international legal framework in conjunction with insights from social science research. The chapter suggests that there are different perspectives of patent policies which serve as “schemas” through which the same facts or law are viewed differently. This chapter explains and illustrates these schema to provide an explanation for some seeming misrepresentations even by scholars. This approach provides a fresh examination of a contentious topic and also may help provide insights into other areas where patent law and policy are in tension with public health or other social policy objectives.Less
This chapter addresses the controversial topic of compulsory licenses by considering the international legal framework in conjunction with insights from social science research. The chapter suggests that there are different perspectives of patent policies which serve as “schemas” through which the same facts or law are viewed differently. This chapter explains and illustrates these schema to provide an explanation for some seeming misrepresentations even by scholars. This approach provides a fresh examination of a contentious topic and also may help provide insights into other areas where patent law and policy are in tension with public health or other social policy objectives.
Michael Kremer
- Published in print:
- 2006
- Published Online:
- September 2006
- ISBN:
- 9780195305197
- eISBN:
- 9780199783519
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/0195305191.003.0021
- Subject:
- Economics and Finance, Development, Growth, and Environmental
This essay focuses on the impact of intellectual property rights (IPRs) on low-and middle-income countries’ health care. There are two different reasons why poor countries may not have access to ...
More
This essay focuses on the impact of intellectual property rights (IPRs) on low-and middle-income countries’ health care. There are two different reasons why poor countries may not have access to needed vaccines and drugs. In the case of global diseases, such as diabetes or cancer, patents may hinder the diffusion of pharmaceuticals. In the case of neglected or tropical diseases, such as malaria, tuberculosis, and leishmaniasis, the corresponding vaccines or drugs are not developed because of low profitability due to the poverty of potential customers. The important role of compulsory licensing for low- and middle-income countries is discussed.Less
This essay focuses on the impact of intellectual property rights (IPRs) on low-and middle-income countries’ health care. There are two different reasons why poor countries may not have access to needed vaccines and drugs. In the case of global diseases, such as diabetes or cancer, patents may hinder the diffusion of pharmaceuticals. In the case of neglected or tropical diseases, such as malaria, tuberculosis, and leishmaniasis, the corresponding vaccines or drugs are not developed because of low profitability due to the poverty of potential customers. The important role of compulsory licensing for low- and middle-income countries is discussed.
Kenneth C. Shadlen
- Published in print:
- 2017
- Published Online:
- August 2017
- ISBN:
- 9780199593903
- eISBN:
- 9780191845574
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/oso/9780199593903.003.0007
- Subject:
- Political Science, Political Economy
This chapter analyses the political economy of continuity in Mexico. High levels of patenting and accentuated transnational dominance of the pharmaceutical industry, both functions of the choices of ...
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This chapter analyses the political economy of continuity in Mexico. High levels of patenting and accentuated transnational dominance of the pharmaceutical industry, both functions of the choices of the 1990s, created an environment that was inhospitable to efforts to reform the new pharmaceutical patent system. The chapter examines a set of revisions to the new pharmaceutical patent regime in the 2000s, all of which were resolved to the benefit of patent-holders seeking greater rights of exclusion. The analysis demonstrates that persistent over-compliance was not because of Mexico’s obligations under NAFTA, but rather despite the opportunities for tailoring that were allowed by this agreement. Within-case comparative analysis offered by these case studies provides variation on the preferences of health officials in the Mexican Executive, the interests and strategies of the local pharmaceutical sector, Mexico’s sensitivity to external pressures, yet the outcomes were similar, as a result of Mexico’s changed social structure.Less
This chapter analyses the political economy of continuity in Mexico. High levels of patenting and accentuated transnational dominance of the pharmaceutical industry, both functions of the choices of the 1990s, created an environment that was inhospitable to efforts to reform the new pharmaceutical patent system. The chapter examines a set of revisions to the new pharmaceutical patent regime in the 2000s, all of which were resolved to the benefit of patent-holders seeking greater rights of exclusion. The analysis demonstrates that persistent over-compliance was not because of Mexico’s obligations under NAFTA, but rather despite the opportunities for tailoring that were allowed by this agreement. Within-case comparative analysis offered by these case studies provides variation on the preferences of health officials in the Mexican Executive, the interests and strategies of the local pharmaceutical sector, Mexico’s sensitivity to external pressures, yet the outcomes were similar, as a result of Mexico’s changed social structure.
Carlos M. Correa
- Published in print:
- 2014
- Published Online:
- August 2014
- ISBN:
- 9780199660759
- eISBN:
- 9780191749186
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199660759.003.0014
- Subject:
- Economics and Finance, Economic Systems
The multilateral rules on intellectual property rights set out by the TRIPS Agreement limit the WTO members’ room to use foreign protected technologies for local production. However, governments ...
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The multilateral rules on intellectual property rights set out by the TRIPS Agreement limit the WTO members’ room to use foreign protected technologies for local production. However, governments retain certain policy space under said Agreement to promote local production. They may adopt exceptions to patentability, and rigorously define the concept of ‘invention’ and of inventive step. They may also implement a broad experimentation exception to facilitate ‘inventing around’, the acquisition of voluntary or compulsory licenses, and legal challenges against invalid patents. Compulsory licenses for failure to work a patent or for ‘refusal to deal’ may also open the necessary space for local production in various industries.Less
The multilateral rules on intellectual property rights set out by the TRIPS Agreement limit the WTO members’ room to use foreign protected technologies for local production. However, governments retain certain policy space under said Agreement to promote local production. They may adopt exceptions to patentability, and rigorously define the concept of ‘invention’ and of inventive step. They may also implement a broad experimentation exception to facilitate ‘inventing around’, the acquisition of voluntary or compulsory licenses, and legal challenges against invalid patents. Compulsory licenses for failure to work a patent or for ‘refusal to deal’ may also open the necessary space for local production in various industries.
- Published in print:
- 2008
- Published Online:
- June 2013
- ISBN:
- 9780804745789
- eISBN:
- 9780804763271
- Item type:
- chapter
- Publisher:
- Stanford University Press
- DOI:
- 10.11126/stanford/9780804745789.003.0002
- Subject:
- Law, Intellectual Property, IT, and Media Law
This chapter presents a comparison of copyright and patent law in terms of their constitutional origins, originality, term limits, subject matter, securing protection, and exclusive rights and nature ...
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This chapter presents a comparison of copyright and patent law in terms of their constitutional origins, originality, term limits, subject matter, securing protection, and exclusive rights and nature of infringement. It also discusses protectionist tendencies in copyright, fair use in copyright, the compulsory license, the question of property in copyright and patent law, and moral rights and the public domain.Less
This chapter presents a comparison of copyright and patent law in terms of their constitutional origins, originality, term limits, subject matter, securing protection, and exclusive rights and nature of infringement. It also discusses protectionist tendencies in copyright, fair use in copyright, the compulsory license, the question of property in copyright and patent law, and moral rights and the public domain.
Kenneth C. Shadlen
- Published in print:
- 2017
- Published Online:
- August 2017
- ISBN:
- 9780199593903
- eISBN:
- 9780191845574
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/oso/9780199593903.003.0008
- Subject:
- Political Science, Political Economy
Brazil altered course in the second period of patent politics, as successive governments introduced revisions to the new patent system to address the consequences of over-compliance in the 1990s. ...
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Brazil altered course in the second period of patent politics, as successive governments introduced revisions to the new patent system to address the consequences of over-compliance in the 1990s. This chapter examines the complementary steps taken to revise how the patent regime functions, including reforms to the compulsory licensing provisions and a new system for examining pharmaceutical patent applications, along with innovation–industrial policy measures to help local firms acquire new production capabilities and adjust to the new status quo of pharmaceutical patents. The chapter examines the political economy of both dimensions of Brazil’s “neo-developmental” response. The analysis shows how these two dimensions of policy have created distinct and rival sets of interests regarding the role of pharmaceutical patents in development, and how these conflicting interests create challenges for a government intent on balancing the dual objectives.Less
Brazil altered course in the second period of patent politics, as successive governments introduced revisions to the new patent system to address the consequences of over-compliance in the 1990s. This chapter examines the complementary steps taken to revise how the patent regime functions, including reforms to the compulsory licensing provisions and a new system for examining pharmaceutical patent applications, along with innovation–industrial policy measures to help local firms acquire new production capabilities and adjust to the new status quo of pharmaceutical patents. The chapter examines the political economy of both dimensions of Brazil’s “neo-developmental” response. The analysis shows how these two dimensions of policy have created distinct and rival sets of interests regarding the role of pharmaceutical patents in development, and how these conflicting interests create challenges for a government intent on balancing the dual objectives.
Reddy T Prashant
- Published in print:
- 2014
- Published Online:
- November 2014
- ISBN:
- 9780199684700
- eISBN:
- 9780191767562
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199684700.003.0008
- Subject:
- Law, Intellectual Property, IT, and Media Law
This chapter traces the development of India’s patent and copyright policy over the last sixty years. Shortly after independence, India replaced its British-era copyright and patent legislation with ...
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This chapter traces the development of India’s patent and copyright policy over the last sixty years. Shortly after independence, India replaced its British-era copyright and patent legislation with new laws which significantly whittled down the standards of IP protection. In the 1970s, India had led a developing countries effort to renegotiate standards of copyright protection under the Berne Convention. In the run up to TRIPs, India again led a developing countries effort to dilute the impact of patent standards demanded under TRIPS. While India appears to not have gained much from its partial victories to dilute the Berne Convention, it has had more success in shielding itself from the impact of TRIPS. Most interestingly, the last few decades demonstrate how India’s compulsory licensing provisions in both copyright and patent law have largely failed despite the fact that India made compulsory licensing the central theme in its international treaty negotiations.Less
This chapter traces the development of India’s patent and copyright policy over the last sixty years. Shortly after independence, India replaced its British-era copyright and patent legislation with new laws which significantly whittled down the standards of IP protection. In the 1970s, India had led a developing countries effort to renegotiate standards of copyright protection under the Berne Convention. In the run up to TRIPs, India again led a developing countries effort to dilute the impact of patent standards demanded under TRIPS. While India appears to not have gained much from its partial victories to dilute the Berne Convention, it has had more success in shielding itself from the impact of TRIPS. Most interestingly, the last few decades demonstrate how India’s compulsory licensing provisions in both copyright and patent law have largely failed despite the fact that India made compulsory licensing the central theme in its international treaty negotiations.
Feroz Ali
- Published in print:
- 2016
- Published Online:
- April 2016
- ISBN:
- 9780199463480
- eISBN:
- 9780199086344
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199463480.001.0001
- Subject:
- Law, Intellectual Property, IT, and Media Law
India’s post-TRIPS (Trade Related Aspects of Intellectual Property Rights) patent law reforms, which incorporates a remarkable array of flexibilities is seen as a counter-harmonization measure in ...
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India’s post-TRIPS (Trade Related Aspects of Intellectual Property Rights) patent law reforms, which incorporates a remarkable array of flexibilities is seen as a counter-harmonization measure in direct opposition to the dominant model of patent law pioneered by the United States. India’s response, which represents an alternative model of confirming to the TRIPS Agreement, has seen stiff resistance in the form of counter-provisions in Free Trade Agreements entered by the US and other countries. Historically, patent systems based on neo-liberalism, like the American model, favour individual pursuits whereas patent systems based on social democracy, like the Indian model, focus on community goals. This distinction manifests in the manner in which the role of the public is defined in the patent system. India’s model is characterized by the emphasis on the public elements in three significant ways. First, in redefining pre-grant opposition by allowing public participation in questioning the ex ante validity of patents. Second, in protecting the public domain by heightening the standard of patentability and requiring the patent applicant to demonstrate technical advance and greater effectiveness of the invention. Third, in providing for compulsory licensing when the public interest is affected by a patent that is not worked locally. The influence of the India’s model has come from mimicry by other countries in following the Indian example. Countries like Argentina, Philippines, Brazil, China, and South Africa have either emulated or strongly favour following India’s path. Such state practices might occasion the reimagination of the TRIPS Agreement as the Access Regime.Less
India’s post-TRIPS (Trade Related Aspects of Intellectual Property Rights) patent law reforms, which incorporates a remarkable array of flexibilities is seen as a counter-harmonization measure in direct opposition to the dominant model of patent law pioneered by the United States. India’s response, which represents an alternative model of confirming to the TRIPS Agreement, has seen stiff resistance in the form of counter-provisions in Free Trade Agreements entered by the US and other countries. Historically, patent systems based on neo-liberalism, like the American model, favour individual pursuits whereas patent systems based on social democracy, like the Indian model, focus on community goals. This distinction manifests in the manner in which the role of the public is defined in the patent system. India’s model is characterized by the emphasis on the public elements in three significant ways. First, in redefining pre-grant opposition by allowing public participation in questioning the ex ante validity of patents. Second, in protecting the public domain by heightening the standard of patentability and requiring the patent applicant to demonstrate technical advance and greater effectiveness of the invention. Third, in providing for compulsory licensing when the public interest is affected by a patent that is not worked locally. The influence of the India’s model has come from mimicry by other countries in following the Indian example. Countries like Argentina, Philippines, Brazil, China, and South Africa have either emulated or strongly favour following India’s path. Such state practices might occasion the reimagination of the TRIPS Agreement as the Access Regime.
Myles W. Jackson
- Published in print:
- 2015
- Published Online:
- September 2015
- ISBN:
- 9780262028660
- eISBN:
- 9780262327190
- Item type:
- chapter
- Publisher:
- The MIT Press
- DOI:
- 10.7551/mitpress/9780262028660.003.0006
- Subject:
- History, History of Science, Technology, and Medicine
In the last years of the 20th century, the CCR5 gene and its protein product became the objects of state-of-the-art work on diagnostics and drug treatment. The CCR5 patent’s lineage is now the ...
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In the last years of the 20th century, the CCR5 gene and its protein product became the objects of state-of-the-art work on diagnostics and drug treatment. The CCR5 patent’s lineage is now the subject of biomedical research on chemokine receptors and is entangled in the complex political, social, and biomedical lineages of HIV/AIDS with Big Pharma playing the lead role. The gene’s genealogy has been humanized and inextricably linked to the lives of the tens of millions infected worldwide. Once again, intellectual property issues resurface. HIV/AIDS diagnostic tests and medications have been patented by Big and Small Pharma alike, and the ramifications of those patents have been felt worldwide, including India, where attempts are underway to create generic drugs, which bind to the HIV-co-receptor.Less
In the last years of the 20th century, the CCR5 gene and its protein product became the objects of state-of-the-art work on diagnostics and drug treatment. The CCR5 patent’s lineage is now the subject of biomedical research on chemokine receptors and is entangled in the complex political, social, and biomedical lineages of HIV/AIDS with Big Pharma playing the lead role. The gene’s genealogy has been humanized and inextricably linked to the lives of the tens of millions infected worldwide. Once again, intellectual property issues resurface. HIV/AIDS diagnostic tests and medications have been patented by Big and Small Pharma alike, and the ramifications of those patents have been felt worldwide, including India, where attempts are underway to create generic drugs, which bind to the HIV-co-receptor.
Kenneth C. Shadlen
- Published in print:
- 2017
- Published Online:
- August 2017
- ISBN:
- 9780199593903
- eISBN:
- 9780191845574
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/oso/9780199593903.003.0002
- Subject:
- Political Science, Political Economy
The chapter provides brief introductions to intellectual property, patents, and pharmaceuticals to help the reader understand the nature of the enduring conflicts in this area. Prior to the 1990s few ...
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The chapter provides brief introductions to intellectual property, patents, and pharmaceuticals to help the reader understand the nature of the enduring conflicts in this area. Prior to the 1990s few developing countries granted patents on pharmaceutical products, but changes in the global politics of intellectual property made doing so obligatory – the starting point for the analyses in this book. The chapter reviews the policy challenges that countries addressed in deciding how to introduce pharmaceutical patents and then in revising their new patent systems, and then presents the explanatory framework to account for cross-national and longitudinal variation. National forms of compliance with global changes are iterative and path-dependent processes, in that there are successive episodes of conflict, and the policy choices of one period exert influence on the policy choices in subsequent periods. Degrees of over-compliance with the new global order are produced through resolution of these two sets of conflicts.Less
The chapter provides brief introductions to intellectual property, patents, and pharmaceuticals to help the reader understand the nature of the enduring conflicts in this area. Prior to the 1990s few developing countries granted patents on pharmaceutical products, but changes in the global politics of intellectual property made doing so obligatory – the starting point for the analyses in this book. The chapter reviews the policy challenges that countries addressed in deciding how to introduce pharmaceutical patents and then in revising their new patent systems, and then presents the explanatory framework to account for cross-national and longitudinal variation. National forms of compliance with global changes are iterative and path-dependent processes, in that there are successive episodes of conflict, and the policy choices of one period exert influence on the policy choices in subsequent periods. Degrees of over-compliance with the new global order are produced through resolution of these two sets of conflicts.
Shobita Parthasarathy
- Published in print:
- 2017
- Published Online:
- September 2017
- ISBN:
- 9780226437859
- eISBN:
- 9780226437996
- Item type:
- chapter
- Publisher:
- University of Chicago Press
- DOI:
- 10.7208/chicago/9780226437996.003.0006
- Subject:
- History, History of Science, Technology, and Medicine
This chapter focuses on recent US and European conflicts over patents on human genes and plants. Both raise distributive concerns about the socioeconomic implications of patents and how patents may ...
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This chapter focuses on recent US and European conflicts over patents on human genes and plants. Both raise distributive concerns about the socioeconomic implications of patents and how patents may constrain access to technology and change scientific, medical, food, and farming culture. The United States and Europe have approached these questions quite differently, and in doing so have carved out very different ideas of the role of the patent system, its institutions, and its relationship to science and technology policy. After a lengthy court battle, the United States prohibited patents on human genes. While the court case originated in worries about access for researchers and patients, the Supreme Court decision maintained the US patent system’s focus on a narrow question: whether human genes are products of nature. The US courts’ response to concerns over plant patents reinforced this narrow approach. While the European Patent Office declined to prohibit human gene patents, it, and other European institutions, have repeatedly recognized a link between patents and the implications of patent-based monopolies. European governments have even passed compulsory licensing laws to address these concerns. Overall, the European patent system understands itself as one of many regulatory domains for science and technology.Less
This chapter focuses on recent US and European conflicts over patents on human genes and plants. Both raise distributive concerns about the socioeconomic implications of patents and how patents may constrain access to technology and change scientific, medical, food, and farming culture. The United States and Europe have approached these questions quite differently, and in doing so have carved out very different ideas of the role of the patent system, its institutions, and its relationship to science and technology policy. After a lengthy court battle, the United States prohibited patents on human genes. While the court case originated in worries about access for researchers and patients, the Supreme Court decision maintained the US patent system’s focus on a narrow question: whether human genes are products of nature. The US courts’ response to concerns over plant patents reinforced this narrow approach. While the European Patent Office declined to prohibit human gene patents, it, and other European institutions, have repeatedly recognized a link between patents and the implications of patent-based monopolies. European governments have even passed compulsory licensing laws to address these concerns. Overall, the European patent system understands itself as one of many regulatory domains for science and technology.
Prashant Reddy T. and Sumathi Chandrashekaran
- Published in print:
- 2017
- Published Online:
- March 2017
- ISBN:
- 9780199470662
- eISBN:
- 9780199088850
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199470662.003.0001
- Subject:
- Law, Intellectual Property, IT, and Media Law
After Independence in 1947 from the British, the new Indian government began to seriously examine the possibility and suitability of completely doing away with patents for pharmaceutical inventions. ...
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After Independence in 1947 from the British, the new Indian government began to seriously examine the possibility and suitability of completely doing away with patents for pharmaceutical inventions. The process took over 22 years. It began in 1948, with the constitution of the Tek Chand Committee, followed by the Ayyangar Committee in 1957. Based on these expert committees, the government made three legislative efforts in 1953, 1965, and 1967, the last of which was finally enacted into the Patents Act, 1970. This new law revoked the British-era Patents and Designs Act, 1911 and prohibited patents for all new pharmaceutical products and severely restricted the scope of patents granted for pharmaceutical processes. This chapter traces the history of the Indian debate from 1948 to 1970 and explains the key arguments through archival news material, parliamentary debates, reports, and depositions.Less
After Independence in 1947 from the British, the new Indian government began to seriously examine the possibility and suitability of completely doing away with patents for pharmaceutical inventions. The process took over 22 years. It began in 1948, with the constitution of the Tek Chand Committee, followed by the Ayyangar Committee in 1957. Based on these expert committees, the government made three legislative efforts in 1953, 1965, and 1967, the last of which was finally enacted into the Patents Act, 1970. This new law revoked the British-era Patents and Designs Act, 1911 and prohibited patents for all new pharmaceutical products and severely restricted the scope of patents granted for pharmaceutical processes. This chapter traces the history of the Indian debate from 1948 to 1970 and explains the key arguments through archival news material, parliamentary debates, reports, and depositions.
