Intellectual Property Law Research Articles

Global Commerce and the Law: A Comparative Exploration of International Commercial and Intellectual Property Law

This article explores the intricate landscape of international commercial law through a comparative analysis, focusing on the theoretical foundations, dispute resolution mechanisms, and intellectual property rights across different legal jurisdictions. By examining the roles of comparative law, the tension between harmonization and legal pluralism, and the variances in contract law, this study sheds light on the challenges and opportunities presented in global commerce. Furthermore, it delves into arbitration, mediation, and the influence of legal culture on dispute resolution, alongside a detailed examination of copyright, trademark, and patent laws in a globalized economy. This comprehensive analysis aims to provide legal practitioners and businesses with insights into navigating the complexities of international commercial transactions and intellectual property protection, highlighting the importance of strategic legal planning and international cooperation.

Divisional patents: a system prone to abuse

Abstract Divisional patents are derivatives to an already active patent or pending application used to separate part of the parent-patent’s subject-matter and create a new autonomous patent. They are extensively used in the pharmaceuticals sector to protect blockbuster medicines with multiple overarching patent rights, thus creating complex patent portfolios. These strategies have attracted the attention of competition enforcers and judicial bodies as potential abuses of dominant position because they aim to prevent and delay generic market entry for the patent holder to maintain their monopolistic prices. However, scrutinizing these strategies has proven challenging because the current rules are prone to exploitation, there is no unified approach to evaluating them, and the core of the issue is the much-debated interplay between IP and competition law. It will be shown that European case law varies across jurisdictions, with none of the current solutions fully addressing the issues. In the search for a functional, effective system, it is essential to understand the rationale behind patent rights, the unique features of the pharmaceuticals sector, and the arguments for and against the use of competition law to scrutinize patent strategies. On this basis, the article proposes a system which combines competition law enforcement with patent law amendments.

Intellectual property law protection for energy-efficient innovation in Saudi Arabia

Laws and policies are important instruments to protect and promote innovation. Intellectual property laws like copyright, patent, and confidential commercial information law facilitate can increase business outputs, economic growth, and green production standards. The objective of the article is to analyze copyright, patent, and confidential commercial information laws in Saudi Arabia to see the availability of these laws in encouraging and protecting energy-efficient innovation while contributing to achieving sustainable development. Content analysis, doctrinal research method, and comparative legal analysis were used to achieve the research objective. The research findings demonstrate that the three selected legislation could be extended to protect energy-efficient innovation in Saudi Arabia though there is a need to amend some of the provisions of the existing laws. However, creating public awareness of the availability of laws and proper implementation of the laws are necessary to protect energy-efficient innovation. The article proposes recommendations to the policymakers about the need for further improvement of the law and its enforcement. The findings of this research could fill the gap in the literature on the assessment of intellectual property law to protect energy-efficient innovation in Saudi Arabia.

Intellectual Property as Business Loan Collateral: A Taxonomy of Institutional and Economic Determinants

Abstract As a promising strategy to secure debt financing, firms can use their intellectual property rights (IPR) as collateral. Despite an ongoing shift to a more technology-based economy, the collateralization of IPR is still trailing behind the use of more traditional asset classes. In this paper, we address the challenges and opportunities of using IPR as collateral from a legal and economic angle by also exploring the role of and consequences for IP law. We develop a new taxonomy, i.e., a classification of the key determinants of using IPR as collateral. The taxonomy defines two pillars that govern the use of IPR collateral that distinguish between institutional and economic determinants. The institutional determinants cover contract law, IPR registries, and banking regulations. The economic determinants constitute the influence of IPR characteristics on the trade-off between the economic costs and benefits of collateralizing IPR. We apply the derived taxonomy to the legal and economic status quo in several industrialized economies to identify potential impediments to IPR-backed debt financing. Taken together, our taxonomy can be viewed as providing guidance for future research in the fields of law and economics on IPR as loan collateral for businesses.

Improving Indicators in Intellectual Property Rights Enforcement in Pakistan: A Study of Impact of Integrated IP Management Model

This study highlights the present situation of enforcement of Intellectual Property Rights (IPRs) and its improvement as an impact of implementation of integrated IP management system in Pakistan. The key initiatives taken by the national government and the organization to achieve the target have been discussed in this study. The major steps include centralized IP administration, new IP legislation, up-gradation of IP Laws, introduction of special IP courts as IP tribunal, capacity building of IP personnel, digitization & automation, cooperation & interaction between law and enforcement agencies & departments, accession to international treaties and IP awareness across the country etc. The aforesaid actions made positive image of the country in IPRs situation by improvement in global IPR ranking index.

Leveraging intellectual property: The value of harmonized enforcement regimes

This paper examines the role of intellectual property (IP) law as a determinant for external debt financing of innovative firms. For identification, we exploit exogenous variation in patent right enforcement arising from the 2004 EU Enforcement Directive. This major policy reform strengthened IP rights and, thus, raised patent owners' asset position. We find that patenting firms significantly increase their use of debt and benefit from lower interest rates in response to the amendment, especially if they own valuable patent portfolios. These effects are most pronounced for relatively small and financially constrained firms, emphasizing the importance of the legal framework in fostering debt financing activities of innovation-oriented firms.

Ownership and Objectivity: Judging Varieties for Plant Breeder's Rights in Australia

To receive intellectual property protection under the International Convention for the Protection of New Varieties of Plants, new plant varieties must pass a Distinctness, Uniformity and Stability (‘DUS’) trial proving that they are distinct from existing varieties, uniform in their relevant characteristics, and stable across generations. This article examines how this scientific-legal judgement process occurs in Australia, contrasting its relatively decentralised approach with the centralised assessment systems used in most European countries. I argue that the pursuit of objective judgement is the central tenet of the plant breeder’s rights systems, and that calls to increase objectivity with technological changes can obscure embedded value judgement and power relations. The DUS criteria serve to reinforce this objectivity, and to discipline mutable and heterogenous plant life into a form which approximates a consistent and identifiable object – a necessity for the operation of intellectual property law, despite consequences for agricultural genetic diversity and resilience.

The Role of Saudi Arabia’s Intellectual Property (IP) Law in Governing the Modern Video Game Landscape

Saudi Arabia’s billion-dollar gaming industry is experiencing a rapid transformation marked by exponential growth and substantial investment. The Kingdom is the 19th biggest gaming market worldwide, with an investment of $6.4 billion to support the industry’s development. The exponential growth and substantial investment in the Kingdom’s gaming industry emphasize the significance of understanding the role of its Intellectual Property law, particularly copyright, in administering this dynamic landscape. Understanding this role will help to demonstrate the Kingdom’s dedication to encouraging the growth and development of the video game industry. As part of its 2030 Vision, Saudi Arabia’s Public Investment Fund (PIF) has entered the gaming sector by establishing Savvy Gaming Group, which invested $1.05 billion to acquire FACEIT and ESL, forming the ESL FACEIT Group. This article examines the intersection of video games and Intellectual Property law, focusing on copyright to explore how the Kingdom’s current copyright framework accommodates the distinctive elements of the video gaming industry and addresses the legal ambiguities that potentially undermine the industry’s copyright protection and overall growth and development. The article analyses the levels of existing copyright protection and legal ambiguities in the Kingdom of Saudi Arabia. Consequently, this article proposes a copyright system tailored to the video gaming industry to address the Kingdom’s specific challenges in this domain. Conclusively, it contends that existing copyright laws do not adequately accommodate Saudi Arabia’s dynamic video gaming industry. It advocates for discussions on a new regime that caters to the industry’s unique aspects and safeguards the interests of publishers and creators in the emerging gaming sector.

ANALYZING THE IMPACT OF EMERGING TECHNOLOGIES ON INTELLECTUAL PROPERTY RIGHTS (IPR): A COMPREHENSIVE STUDY ON THE CHALLENGES AND OPPORTUNITIES IN THE DIGITAL AGE

The rapid integration of emerging technologies into various facets of society has brought about a paradigm shift in the realm of Intellectual Property Rights (IPR). This comprehensive study seeks to unravel the intricate dynamics surrounding the intersection of emerging technologies—such as artificial intelligence, blockchain, and biotechnology—with IPR in the digital age. The overarching objective is to scrutinize the challenges and opportunities that emerge from this synergy, thereby contributing to a nuanced understanding of the evolving landscape of intellectual property. An extensive literature review explores the historical evolution of IPR, providing a foundation for comprehending the traditional principles underpinning this legal domain. Building upon this historical context, the study delves into the impact of contemporary technologies on patent law, copyright, and trademark regulations. Notable advancements in artificial intelligence present challenges related to patentable subject matter and algorithmic inventions, prompting a critical analysis of their implications. Similarly, biotechnological innovations introduce ethical considerations, necessitating an examination of their effect on the patentability of novel inventions. The research concludes by offering recommendations for legal adaptations, ensuring that intellectual property laws remain robust and adaptable in the face of the challenges and opportunities ushered in by the digital age.

The patentability of ai inventions: Navigating the grey area between human vs computer innovation

One of the most controversial topics today in the realm of Technology and Intellectual property Law is the patentability or not of inventions wrought by Artificial Intelligence. Significant progress in law has been made in this regard in jurisdictions like the United States and the United Kingdom where the consensus of judicial opinion is that inventions made by Artificial Intelligence, to wit, robots, digital assistants etc. are not eligible to be granted patent. However, there have been growing scholarly exhortations in legal cycles for possible review of this position. This article is a new addition to that increasing scholastic demand for the expansion of the parameters for patentability especially as it relates to Artificial Intelligence. It suggests amongst other things that while the patentability of each case of AI-driven invention ought to be decided on the merits of its own peculiar facts, nonetheless, the relative levels of involvement of the said Artificial Intelligence in the process of making the invention sought to be awarded a patent, and the substantiality or not of its contribution to the project, should also weigh high in the overall consideration of whether the resulting invention should be patented or not.

Creation of a Unified Technological Solution for Automating the Activities of Educational Organizations

The article examines the issue and substantiates the development of a standard technological solution (core) for automating the activities of educational organizations in order to ensure technological independence and sovereignty. The normative documents for the creation of a standard solution for automating the activities of educational organizations in the Russian Federation in the field of higher education of the domain «Education» are considered. The purpose of the proposed development is to achieve such an organization of work when the IP is created, accompanied and developed by the university of participants who are interested in it. In order for universities that do not have specialized areas and resources to freely receive the same quality solution as everyone else. It is proposed to define the norms of intellectual property law for the technologies and software being developed within the framework of the consortium (development, discussion, audit, formalization). development of the concept of a unified technological solution for automation of educational organizations (technological independence, software and hardware solutions).

COMPLIANCE AND LEGISLATION IN THE FIELD OF INTELLECTUAL PROPERTY

This article is devoted to the study of the institute of compliance, the need to implement compliance procedures in an organization regardless of the form of ownership, type of legal entity, organizational and legal form. This business process has been widely implemented in the financial sector, but due to the spread of the introduction of economic sanctions and threats of secondary sanctions, it has become particularly relevant in Kazakhstan. This article analyzes the issues of the essence of compliance, procedures, goals and objectives, functions of services, types of compliance, negative consequences of non-compliance with legal requirements, corporate norms, ethical standards and internal regulatory documents. In the article, the author substantiates the need to include in the functions of compliance controllers the study of risks in the sphere of intellectual property turnover, which is a necessary measure of compliance with legal norms on intellectual property, not limited only to the introduction of anti-corruption, sanctions or antimonopoly compliance. In practice, these areas are well-established. However, illegal turnover of intellectual property, violations of exclusive rights create serious legal risks and financial consequences. In this regard, the author considers it necessary to implement compliance depending on the type of activity of the company, including for compliance with intellectual property legislation. This position is based on numerous facts of judicial proceedings, criminal and administrative prosecution of offenders who, when applying this type of compliance control, could have prevented violations of intellectual property law in advance. The introduction of compliance control in this area would prevent the onset of legal consequences and financial losses (fines, confiscation).

Інформаційні технології для забезпечення захисту права інтелектуальної власності: адміністративно-правові аспекти

The article is devoted to a comprehensive study of technologies designed to protect intellectual property rights. The scientific basis for the study of information technologies for ensuring the protection of intellectual property rights is analyzed. Attention is paid to the close connection between the development of information technologies and challenges to the protection of intellectual property. This issue is considered in the context of administrative and legal aspects of such protection. The author formulates proposals aimed at improving administrative and legal acts in the area under study. The trends in the development of intellectual property law are analyzed, revealing a range of directions for its further advancement, notably expressed in the processes of globalization of legislation and the transition from protecting rights fixed on material carriers to protection of information. Emphasis is placed on the fact that the transfer of modern technologies is one of the main avenues for the creation and utilization of intellectual property, which is also provided for in international legal acts. The stimulation of creating fundamentally new technologies and developments, along with their broad industrial utilization, greatly depends on a systematic approach to structuring the strategy for the development of the national innovation system. This system integrates fundamental scientific research and the commercialization of their results, employing legal mechanisms for the circulation of property rights over intellectual property objects. Particular attention is paid to the legal regime of blockchain protection. Attention is drawn to the complexity of legal protection of the blockchain, which consists of both information and intellectual property. It is indicated that this object is a system for recording, storing and processing information and a technology for performing actions in the digital environment. It is proved that blockchain is a value associated with objects with exclusive rights and has the ability to issue invoices. It is emphasized that blockchain can be considered within the framework of the Law on Information - as an information product in the form of a document containing information.

Enthusiastic claimants, reluctant courts: The empirical and critical analysis of punitive damages in Chinese intellectual property law

AbstractThe availability of punitive awards varies across different common law jurisdictions. In recent years, China, as a civil law jurisdiction, has progressively introduced a comprehensive punitive damages system in Intellectual Property (IP) law in recent years. To investigate how this common law product functions in the civil law system, this paper scrutinizes the evolution and functions of punitive damages and depicts the map of punitive damages in Chinese IP law. Then this paper reports and analyses 657 IP judgments involving the application of punitive damages that were tried and decided in all parts of mainland China by all levels of courts from June 1, 2021, to May 31, 2022. Our empirical data shows that punitive damages are frequently sought by claimants, yet courts are reluctant to award them due to the complexities in determining the basis for calculation and judges' reluctance towards detailed legal reasoning. Furthermore, a critical analysis of the application of punitive damages in IP trials is provided, critiquing the court's preference for statutory damages, the complexity in determining the basis and multipliers for calculation, and the strict standard of proof, which accounted for the small portion of punitive damages awarded in judicial practices.

Intellectual property rights in the digital age

In today's rapidly developing world, where information technologies are becoming an indispensable component of social life, the "digital age” concept is gaining special importance. This era is characterized by the pragmatic use of digital technologies in all spheres of economic, social, and cultural activity. In this context, an important aspect of the functioning of modern society is intellectual property law, which in the digital age acquires new challenges and opportunities.
 Intellectual property law recognizes and protects the intellectual and creative achievements of an individual or collective, giving them the right to own and control these achievements. Importantly, intellectual property law helps stimulate creativity and innovation, as it provides appropriate economic incentives to intellectual property owners.
 The growing use of digital technologies and the Internet raises several new questions and challenges related to intellectual property rights. On the one hand, the digital age creates unique opportunities for the creation, distribution, and use of intellectual property, leading to new forms of creativity and supporting cultural exchange. On the other hand, it creates problems regarding the control, protection, and reproduction of this property in the digital environment, particularly the growth of piracy and copyright infringement.
 In the digital age, intellectual property rights become the basis for innovation, technological development, and cultural exchange. Understanding its functions, challenges, and prospects is an important task for the further development of society in the digital age. In this context, the study highlights key aspects and solutions to the problem of intellectual property rights in the digital age, in particular, the role of legal norms, protection measures, innovation, and cooperation at the international level.

Problems of Systematization of Contracts for Intellectual Products Creation

Systematization of contracts makes it possible to solve the problems of contractual regulation at the legislative level. The problem of contract systematization in civil law in general and in intellectual property law is that in science there is no unified approach regarding the choice of classification criterion that can be used as its basis. Systematization of contracts aimed at creating intellectual products is a «hot button» of the current legislation, the practice of its application and legal science. The paper reasonably points out that the legislative decisions presented in section VII of the Civil Code of the Russian Federation, are ill-conceived and ignore the principle of systematic construction of legislation on contractual obligations aimed at creating intellectual products. An analysis of the rules on contracts aimed at creating works as objects of copyright, and research and development agreements was carried out. The paper proposes amendments to the legislation as to transfer of the rules on the creation of intellectual products to Section IV of the Civil Code of the Russian Federation and changes in the structure and content of Chapter 38 of the Civil Code of the Russian Federation.

The Inadequacy of the Copyright System in Addressing Digitalization and Internet Challenges

At the international as well as the local level, several different legal frameworks have been developed to affirm and protect fundamental rights. Copyright law has developed in reaction to technological advancements; since its inception. The most recent breakthroughs in digital technology; such as digital communications networks like the Internet and personal computers; are generating headlines throughout the world. This study attempts to add to the current discussion on copyright law; change by doing extensive research. This research seeks to provide light on the confluence between existing intellectual property laws; and the growing digital ecosystem. Overall, the stud aims to explore all the related issues and laws associated with intellectual property in the Pakistan which is relatively in the early phases.

Fighting for IP Equity: A Zoom on the Forthcoming Who Pandemic Agreement

Faced with the impact of COVID-19, WHO Member States agreed to draft and negotiate an agreement on pandemic prevention, preparedness and response. A proposal for negotiating text of this WHO Pandemic Agreement was prepared by the Intergovernmental Negotiating Body’s Bureau and shared with its Drafting Group in October 2023 for its consideration. This process should lead to the adoption of a legally binding accord. This article considers the usefulness of this international instrument for pandemic prevention, preparedness and response in relation to intellectual property (IP) to ultimately recognise such usefulness but to argue that the negotiating text could be more ambitious. It focuses on the Agreement potential to mitigate the impact of IP regulations that favour developed countries and their pharmaceutical industries. The article first highlights how the international IP system, through the Agreement on Trade-Related Aspects of Intellectual Property Rights, disempowered developing countries in their battle against COVID-19. It then focuses on provisions relating to IP law found in the negotiating text to explore and question its potential to contribute to IP equity for developing countries for future pandemics. Finally, the article proposes recommendations to strengthen the impact of a WHO Pandemic Agreement in the fight for IP equity.

New Genomic Techniques and Intellectual Property Law: Challenges and Solutions for the Plant Breeding Sector ‒ Position Statement of the Max Planck Institute for Innovation and Competition

Abstract On 5 July 2023, the European Commission proposed a regulation aiming to ease the requirements for the marketing authorisation of plants obtained through certain new genomic techniques (NGTs) within the European Union (EU). While NGTs are expected to become more attractive to breeders and farmers, the complexity of the intellectual property (IP) landscape surrounding these techniques and resulting products may negatively impact technology diffusion and innovation. Given numerous concerns related to IP protection for NGTs and NGT-derived plants, this Position Statement from the Max Planck Institute for Innovation and Competition presents a set of policy recommendations for facilitating access to and utilisation of IP-protected NGTs and NGT-derived products in the breeding sector.

Round-up of IP decisions in Africa 2023

Abstract This contribution offers an analysis of selected important decisions in the field of IP law issued in the period 1 January to 31 December 2023 by national courts in individual African countries (Kenya, Nigeria, South Africa Tanzania, Uganda and Zimbabwe). Specifically, the industries covered in the decisions analysed in this contribution include digital music and the creative industries, pharmaceuticals and paint manufacturing. The contribution also highlights legislative reforms and other developments in various IP law fields in Africa in 2023.