Intellectual Property Negotiations Research Articles

China engages with the global intellectual property governance: The recent trend

AbstractAs China becomes the second largest economy in the world, there have been increasing domestic demands requesting China to engage with the global governance of various issues more closely. In intellectual property (IP), China has recently engaged with global IP governance both responsively and actively. This paper answer the questions (a) how did China respond to the global IP up‐ratchet which sets higher IP standards; and (b) how did China actively promote its agenda for the global IP governance. This paper argues that China has a clearer and more consistent position in its responsive engagement than in active engagement. In other words, China is more affirmative in making defensive coalitions opposing TRIPS‐plus standards proposed by developed countries than promoting its own IP initiatives regionally or plurilaterally. China's positions in these defensive coalitions are the classic pro‐development, developing country positions. Its active IP engagement is more diversified. Specifically, China keeps a low profile and does not attempt to take the lead in IP negotiations at the Regional Compressive Economic Partnership. By contrast, China has emerged as a model exporter, focusing on IP capacity building in its IP arrangements in the Belt and Road Initiative (BRI) and BRICS.

Do Developing Countries Have a Say? Bilateral and Regional Intellectual Property Negotiations with the EU

Bilateral and regional agreements concluded with the European Union (EU) and the United States are extensive and include high levels of IP protection and enforcement standards. Such protection is crucial to enhance their competitiveness, but it does not seem to be a priority for developing countries (DCs). This paper analyses how DCs should best address trade negotiations in which high standards of IP protection and enforcement are sought and few balancing (safeguard and flexibility) provisions, or such that can stimulate technology transfer, are on offer. The Max Planck Institute for Innovation and Competition’s “Principles for Intellectual Property Provisions in Bilateral and Regional Agreements” cover many issues that are worth discussing as to how these can be incorporated in the negotiating process. Data collected from the CARIFORUM region when negotiating the EU-CARIFORUM Economic Partnership Agreement reconfirm the Principles’ main recommendations; so do the experiences from India, Central American countries, Colombia and Peru in negotiations with the EU. The argument made here, however, is that a crucial factor in achieving more favourable outcomes for DCs is through an increase of their bargaining power. It will be examined what structural factors influence bargaining power and how this impacts the use of negotiating strategies.

An Application of Nash Bargaining to Intellectual Property Negotiations

In what follows we propose a solution to a hypothetical bargaining problem that is likely to arise when the owner of an invention, which is assumed to lower the marginal cost of production, negotiates a patent license with producers. We show that, under various assumptions about the downstream market structure, the solution that maximizes the Nash product in a specific market context need not require an even split of the available surplus. This conclusion about the equilibrium allocation of surplus is appropriate whether one adopts the original axiomatic treatment by Nash or the later dynamic non-cooperative bargaining model of Rubinstein and others. Initially, we describe the use of the Nash solution when there is a single patentee negotiating a license with a monopolist producer. We subsequently describe the more-recent Nash-in-Nash bargaining solution of Horn and Wolinsky, assuming there are two downstream rival producers with market power who independently negotiate a non-exclusive license with the patentee. Throughout, we pay particular attention to the complexities of defining disagreement payoffs, properly including attention to their credibility in the sense of Binmore.

Interest Groups in International Intellectual Property Negotiations

This paper parts with the assumption that a perspective that takes interest group dynamics into account has great explanatory power for the interpretation of international intellectual property (IP) negotiation outcomes like TRIPS and ACTA. The research questions will consequently revolve around contextual conditions that affect the generation of different interest group systems, which in turn heavily influence the negotiation outcomes: Who exactly are today’s relevant interest groups in comparison to the TRIPS era and what are their stakes and interests? Why did they gain influence in the area of international IP policymaking and what are their strategies to exercise their influence? What implications does the changed interest group system have for international IP policy-making? What insights can be gained from the analysis of the TRIPS and ACTA negotiations about the role of interest groups in international IP negotiations?In order to allow a profound analysis of these research questions, the scope of this paper will be narrowed down to the case study of the European Union (EU) concerning two international IP negotiations: The TRIPS agreement, currently providing the status quo on minimum standards of IP rights and the ACTA negotiations. The EU has been chosen as the object of analysis, because the recent rejection of the ACTA agreement by the European Parliament seems contradictory to the pro-TRIPS standpoint and support for high international IPR standards that usually constituted the EU interest in international IP negotiations since the TRIPS negotiations 18 years ago. The hypothesis that will be tested with this paper is that certain contextual factors altered the EU interest group system concerning international IP politics in the time period between TRIPS and ACTA, which in turn considerably contributed to the transformation of the EU standpoint in international IP negotiations.

Ethics in Intellectual Property Negotiations: Issues and Illustrations

Negotiating – formally or informally – is a characteristic aspect of law practice. The requisite skills are acquired “on the job” and, for some, via the formal study of negotiation processes and attributes. The negotiator has much to consider, including the client’s goals and interests, likely litigation outcomes should negotiations fail or any ultimate agreement be breached, and what the counterparty is likely seeking to accomplish. The challenges include negotiating within the limits imposed by the ethics rules. This paper identifies key authorities relevant to negotiation ethics and illustrates their operation in the context of hypotheticals based on intellectual property practice. In particular, it highlights some hotly debated aspects and implications of the professional conduct rules relating to representing clients in negotiations.

Governing Knowledge: Discourses and Tactics of the European Union in Trade-Related Intellectual Property Negotiations

: With global shifts in the format of international trade negotiations—from multilateral to bilateral and regional fora—possibilities for the unequal exercise of power have amplified. At risk are the trade-related interests of “developing” economies, as well as public policy issues like access to medicines. In response we analyse some of the emerging governmental approaches currently being employed for trade-related intellectual property (IP) rules. Our concern is to provide a deeper understanding of the ways power is exercised internationally. Here, we explore the European Union (EU) approaches towards trade negotiations. Examining the role of the EU in IP-related trade negotiations, recent actions towards “economic partnership agreements” with African, Caribbean and Pacific countries are discussed. Rather than exercise a singular approach, the EU has pursued a range of tactics, including educational and incentive-based measures, but also surveillance of foreign country IP protection, and increasingly overt disciplinary tactics in their negotiations. A veneer of inclusiveness masks a more sophisticated, diversified governing strategy still ultimately concerned with the sovereign or judicial enrolment and compliance of economically/technologically poorer nations to a regulatory apparatus of security that favours European IP interests.

Intellectual Property and Healthcare

This paper on “Intellectual Property and Healthcare” intends to explore the relationship between the two, within a global perspective. Over the years, with the intensification of globalized trade, harmonization of patent law worldwide has become an important goal of intellectual property and trade negotiations. In fact, most of the trading area in this regard deals with the harmonisation of patent law worldwide. Ever since the early 1980s, there have been concerted efforts to bring in harmonization of patent administration, but which has been strongly opposed by the developing nations. A breakthrough in this area was however, achieved with the negotiation of TRIPs at the end of the Uruguay Round of the General Agreement on Tariffs and Trade (GATT) in 1994, which provided for the globalisation of Intellectual Property Rights. In this regard, it becomes important to understand the intricate link between IPR and healthcare needs of the people, which is what this paper aims to do. The scope of the area of Intellectual Property and Health is very vast. Hence, for ease of understanding, the paper has been divided into three sections. The first section focuses on how a balance between IPR and healthcare has been sought by the current IPR regime. The second section discusses about the chinks in the supposedly-balanced IPR regime of today with regard to aspects of healthcare. The third section hopes to look at various ways to overcome the problems faced in healthcare distribution among the people, and come up with a viable option.

Bargaining over the climate: Lessons from intellectual property negotiations

Does the evolution of the intellectual property regime hold any lessons for the climate change regime? The paper argues that the architecture of the intellectual property regime recognizes the complexity of free-riding behaviour and divides the problem amongst a number of treaties. The integration of intellectual property trade standards into the trade regime provides plaintiff states with a way to inflict both political and economic costs on free riders. Perhaps the most important lesson relates to the way in which a highly coordinated international business network was able to shift intellectual property into the multilateral trade regime and obtain standards most countries at the time did not really want because they were net intellectual property importers.

The implementation paradox: intellectual property regulation in the Arab world

PurposeAlthough a large number of Arab countries are members of the World Trade Organisation and the Agreement on Trade‐Related Aspects of Intellectual Property Rights, most of these countries were unable to structure a national intellectual property protection regime which takes into consideration their development plans. The purpose of this paper is to shed light on the history of Arab countries' participation in multilateral trade and intellectual property negotiations and calls for the maximum utilisation by these countries of the intellectual property policy space available to them under international law.Design/methodology/approachThe paper draws from the texts of international agreements and from the available literature on intellectual property. The paper also makes use of various international reports and studies on intellectual property and development.FindingsThe paper argues that due to the minimal participation and involvement by Arab countries in international trade and intellectual property negotiations, officials in these countries lacked deep knowledge and understanding about the technical and legal issues engulfing the regulation and implementation of intellectual property. The paper finds that those countries mostly active in negotiations were more able to capitalise on the system and to benefit from the available policy space in terms of national development. Finally, the paper provides recommendations aimed towards enhancing the policy space and utilising intellectual property for development purposes.Originality/valueThese findings are important for policy makers, officials and those interested in understanding the relation between intellectual property protection and development and how developing and Arab countries would be able to maximize the benefits from the international protection regime.

Three decades of bilateral copyright negotiations: Mainland China and the United States

Abstract The study analyzes the dynamics of intellectual property (IP) negotiations between mainland China and the United States from the late 1970s to 2007. As China has industrialized, it has faced significant pressure from its international trading partners led by the United States to improve protection for intellectual property rights (IPR). Analysis of the progress of IP protection in China provides an opportunity to test and modify a model of IP policy development in developing countries, and the impact of U.S. actions on internal IP politics and cultural development.

Forging Successful University–Industry Collaborations

OVERVIEW:In an increasingly global, networked market for R&D it is more important than ever to collaborate. In the past, intellectual property negotiations have been formidable barriers to forming effective collaborative university–industry arrangements. Experience has shown that it is possible to reduce negotiation from 20–26 to 1–2 months by using a model to build a team, agreeing on a pre-determined process, and being committed to finding creative ways to reach agreement. Hewlett-Packard's experience in using such a model with the University of California at Berkeley and the (California) Bay Area Science and Innovation Consortium has shown how creativity and insight are essential to achieving convergence and also helps explain why standard agreements cannot effectively address the situational challenges.

The dynamics of bilateral intellectual property negotiations: Taiwan and the United States

Abstract This study analyzes the progress of copyright enforcement in Taiwan in the period from 1985 to 2000. As a rapidly industrializing region, Taiwan has faced significant pressure from its international trade partners to improve intellectual property protection. This pressure has been strongest from the United States, Taiwan's largest partner. Analysis of the progress of intellectual property protection in Taiwan provides an opportunity to learn more about the dynamics of intellectual property policy development in developing countries, and the impact of U.S. actions on internal IP politics and cultural development. The paper will survey the significant milestones in Taiwanese copyright policy development over the last two decades and conclude with a conceptual model that can be tested by analysis of other case studies of cross-jurisdiction intellectual property relationships.

Chip detectives [reverse engineering

The chip industry is finding new uses for reverse engineering-to defend patents, spur innovation, and trace product failures. Intellectual property negotiations rely on technical ammunition, and over the last decade or so, a handful of laboratories specializing in IC reverse engineering (including Taeus) have sprung up to provide it. As their clients will attest, the ability of these labs to dissect even the most complicated IC is essential for pinpointing cases of patent infringement, and also determining whether a patented technology is worth licensing or buying. Beyond that, semiconductor manufacturers turn to these reverse-engineering houses to get a sense of how their products stack up against the competition, to test the quality of their products, and to trace the root cause of device failures.

Intellectual Property Negotiations: A Managerial Perspective of Basic Intellectual Property Issues for Small Pharmaceutical Companies in Research Contract Negotiations with Contract Research Organizations

This article is intended to present a series of issues related to intellectual property negotiations. Although the article is written from the perspective of a small pharmaceutical company, the topics covered are applicable to other industries and to larger companies within the same industry. Because of the heavy investments required in pharmaceutical development, it is crucial for research companies to establish their rights to the intellectual property that they develop. Research companies can begin to assert their rights by properly defining company policies toward intellectual property, specifying key research contract terms, and establishing clear procedures within the research contract both for acquiring intellectual property rights and for filing for intellectual property protection. Although basic company guidelines can and should be established for the negotiation of intellectual property, the extent to which they are followed in specific situations depends greatly on a multitude of factors beyon...

U.S. Industry's Influence on Intellectual Property Negotiations and Special 301 Actions

U.S. INDUSTRY'S INFLUENCE ON INTELLECTUAL PROPERTY NEGOTIATIONS AND SPECIAL 301 ACTIONS Paul C.B. Liut I. INTRODUCTION International bilateral and multilateral trade negotiations and investigations under the so-called Special 301 provisions of the U.S. trade law' have become more serious and difficult for the international community to deal with in recent years. The sometimes bitter and heated disputes among the different parties involved have further ignited strong passions, nationalist senti- ment, and international incidents. Although government representatives are the ones who en- gage in the actual negotiations, an invisible strong hand, at least in the United States, has always played a major role in the pro- cess, from identifying issues to formulating strategies on the trade front. The influence of U.S. industries and industrial orga- nizations is evident in recent legislative actions. Although Con- gress still accommodates different, and sometimes conflicting, interests in a given issue, industries have gained enough govern- ment recognition, if not sufficient protection, for their special in- terests. For example, congressional action was the direct result of industry lobbying in each of the following cases: the revision of the fair use doctrine under section 107 of the Copyright Act of 1976,2 the expansion of the criminal penalties for copyright in- fringement, 3 and the passage of the Omnibus Trade and Compet- itiveness Act of 19884. t Associate Director and Affiliate Professor of Law of Competition, Trade and Technology Projects, the Asian Law Program at University of Washington School of Law. 19 U.S.C. § 2242(a) (1993). Pub. L. No. 102-492 (Oct. 24, 1992). Pub. L. No. 102-561 (Oct. 28, 1992). Pub. L. No. 100-418 (Oct. 3, 1988).

Should Patent Protection Be Extended to All Developing Countries?

HE Uruguay Round has extended the scope of GATT multilateral trade negotiations well beyond the tariffs that had occupied most previous negotiations.’ In addition to various non tariff barriers (which had also been dealt with to a degree in the Tokyo Round, as discussed in Deardorff and Stern 1983 and 1986), the Uruguay Round dealt with issues of trade in services, international investment, and intellectual property. Since these ‘new issues’ have conceptually quite different characteristics than the tariffs of previous negotiations, it is appropriate to examine them afresh to determine whether the objectives of the Uruguay Round negotiations can be considered economically sound. This paper describes such an analysis for a particular aspect of the intellectual property negotiations patent rights and in the process voices some skepticism about this aspect of the Uruguay Round’s objectives. Inclusion of ‘Trade Related Intellectual Property’ issues, or TRIPS, in the Uruguay Round agenda was done largely at the insistence of the United States. Firms in the United States have long been concerned that their position at the cutting edge of technological progress was being eroded by unauthorised copying of their intellectual property elsewhere in the world. While export of such ‘copied’ products back into the United States might be restricted under US law, this would provide little help in competition with the ‘pirate’ firms in third-country markets.