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This chapter discusses the development of the British patent system. Topics covered include the origin and essence of a patent system, terms of the royal grant, justifying the patent system, the long course to a patent grant, the Paris Industrial Property Convention of 1883, patentee and competitors, and exploitations of patented technology.

This chapter describes the patent component of the conflict between the TRIPS Agreement and access to medicine. It provides the necessary background in patent law, its history, and rationales and then describes the obligations the TRIPS Agreement imposes on WTO Members. It shows that the lack of jurisprudence leaves many of the details of the obligations imprecise. However, Members clearly have to provide for 20-year product patents in the pharmaceutical area.

This chapter reviews both the private international law solutions and the institutional solutions to the problem of enforcement of parallel patents and analyzes the hurdles to their implementation. The chapter first presents the only private international law solution that has been tested—the regime used in Europe that was originally formed under the Brussels and Lugano Conventions—and explains the problems that the regime generated; it then shows how these problems were or are being mitigated. Further sections of the chapter discuss the international treaty and two major proposals that were developed as instruments of private international law—The Hague Convention, the American Law Institute Principles, and the Principles drafted by the Group for Conflict of Laws in Intellectual Property organized within the Max Planck Institute for Intellectual Property and Competition Law. The chapter goes on to analyze the hurdles to adoption of the private international solutions. Specifically, using the situations in the United States and Germany as examples, it examines the reluctance of courts to decide questions of foreign patent validity. It then turns to the institutional solutions as they have been discussed in Europe and suggests the reasons for the delay in their adoption. Finally, the chapter summarizes the barriers that exist to the adoption and implementation of both types of solutions at the global level.

This chapter analyzes the doctrines used to prevent the exploitation of inventions outside protecting countries. It examines the doctrines from a comparative perspective by drawing from legislation and jurisprudence in the United States and Germany. The chapter covers the first mid-nineteenth-century cases that involved inventions embedded in foreign ships that entered ports of protecting countries. It then discusses the cases in which the transit of goods through territories of protecting countries provided an opportunity for inventors to block the utilization of their inventions in other countries; the chapter also reviews border measures developed to block the importation of infringing products. The next two sections of the chapter analyze offers to sell and the issue of preventing patent infringements through the supply of components of a patented invention for assembly abroad. Acts of indirect infringement performed abroad may be also infringing, as discussed later in the chapter. The standard used to localize an infringing act, if defined flexibly enough, may also place an act committed abroad within the scope of the patent law of a protecting country. Such possibilities are discussed towards the end of the chapter, which also addresses infringements committed on the Internet. The chapter finally summarizes the various doctrines and explores the limitations of their territorial reach.

This chapter discusses Japanese intellectual property law. Topics covered include Japan as an ‘intellectual property-based nation’, patent law, copyright law, trade market protection, trade secrets protection, and other types of intellectual property.

This chapter analyzes the problems that patent holders face when they sue an entity that is outside the reach of the enforcement power of the court that adjudicates the patent infringement. The first section of the chapter presents the results of a quantitative analysis of a population of patent cases filed in the United States that was conducted to investigate the involvement of foreign entities in patent litigation in U.S. courts, and to demonstrate the magnitude of the phenomenon and the related potential for cross-border enforcement problems. Particular enforcement difficulties are discussed further in the chapter, which focus on injunctive and monetary relief, respectively. Finally, the chapter summarizes the enforcement difficulties identified in this chapter and offers observations on the impact of these difficulties on the territorial scope of patent laws.

This chapter illustrates how individual nations may promote access to medicine while still complying with TRIPS, using India's patent laws as an example. As noted earlier, TRIPS requirements are not only skeletal, but undefined. Accordingly, under TRIPS nations have freedom and flexibility to define important terms and requirements. In particular, the chapter discusses various aspects of India's patent laws that are intended to promote access to medicine in a post-TRIPS world where patents must be granted. Although TRIPS flexibility may sometimes be constrained by international agreements or pressures, the chapter first explores what flexibilities countries should have under TRIPS. Understanding existing flexibilities under TRIPS is important because it provides a foundation to better understand how subsequent obligations may limit these flexibilities.

This chapter is focused on technology assets, which are important to the business of the technology-based industries and are paradigmatic for the law of patents. It explains the law of patents and the various demands placed upon it by the different commercial and technological contexts in which it operates. It also discusses the protections provided by the UK design right as well as the subjects that it encompasses.

This chapter explains regulatory laws that provide complementary protection to patent laws by limiting competition from generic manufacturers. In particular, it focuses on explaining “data exclusivity” and “patent linkage”—protection provided in the regulatory laws of some countries that may create additional hurdles to the entry of generic drugs.

This chapter takes a look at the problems associated with patent development within developing countries, specifically Brazil and India. The first half of the chapter discusses the patent regime in India, including the Ayyangar Report, which analyzes the adaptability of foreign patent regimes and policy options to address the national issues of the country, and the process patent regime of the 1970s, where the processes and methods of producing food, medical, and chemical invention products were protected. The second half of the chapter focuses on Brazil's constitutional commitment to access to medicines and its patent law. A section on the similarities between these two countries concludes the chapter.

This chapter analyzes an important current controversy under TRIPS while simultaneously providing another opportunity to show the impact and influence of competing patent perspectives. In particular, it analyzes a controversial EU Regulation that permits customs officials to detain goods that infringe local patent laws—even though those goods are not intended for local consumption. Pursuant to the Regulation, the chapter gives an example of a situation where goods have been detained at a Netherlands airport en route to another country. The detentions are permissible under the EU Regulation because in-transit goods are considered to infringe patent rights in the Netherlands. These detentions have resulted in delays of goods that violate no patent rights in either the country of origin or destination. The issue poses difficult interpretive TRIPS questions, yet discussion to date has predominantly suggested the EU law is either clearly consistent or inconsistent with TRIPS. The chapter aims to explain why the TRIPS issue is a nuanced one that is far less clear than most suggest. In addition, it describes how the competing patent perspectives have promoted skewed interpretations of the law and facts.

This chapter begins with an overview of patent and copyright law, offering a synthesis of the elements most important for innovation. It then explores justifications for intellectual property (IP). It asks whether IP is necessary by examining other incentives for innovation. Finally, it traces dangers of IP protection such as monopoly loss, innovation bottlenecks, and harms to disruptive and user innovation.

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.

This chapter provides a broader view of the development of international laws impacting the protection of drugs. Whereas prior chapters focused primarily on how patent-owning companies impact these laws, this chapter shows that such companies do not necessarily always dominate the conversation. In particular, just as companies have utilized tools such as forum shifting and trade pressures to achieve their goals, access to medicine proponents have used forum shifting and public pressure to promote their interests. The chapter demonstrates that the development of laws and policies impacting access to medicine is a dynamic process in which competing patent perspectives (as well as their confluence) play an important role.

This chapter focuses on the role of the House of Lords in relation to intellectual property. It begins with a discussion of the place of the House of Lords in IP up until 1952. By and large it performed a valuable and cohesive function. The chapter then presents cases: they are of two sorts, those about the core rules of IP law and those which, although having an IP right in the background, were really about some more general question. It argues that the House has generally served IP well, and has particularly served patents very well. IP law is a lot better off for the second tier of appeal.

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.

In May 1851, the Great Exhibition of the Works of Industry of All Nations was held at Hyde Park in London, England. There was so much in this Exhibition that was copied, imitated, die-cast, lithographed, electroplated, stereotyped, daguerreotyped, galvano-plastic, and so on, that the Exhibition itself posed questions about the relationship of monetary to aesthetic value and the status of the ‘real’ and ‘original’ in an emerging economy of reproduction and imitation. This chapter argues that the reform of the patent law at mid-19th century was profoundly affected by a literary lobby, including Charles Dickens and other members of the Society of Arts, which maintained the analogies with copyright law despite the evidence that industrial innovation had now become a largely corporate, and not an individual, endeavour. The chapter shows the crucial importance of the close juxtaposition of artworks and machines at the Exhibition of 1851 to the subsequent discussion of the status and intellectual property of artists and inventors.