Intellectual Property Regime Research Articles

Reinscribing global hierarchies: COVID–19, racial capitalism and the liberal international order

Abstract The COVID–19 pandemic led to debates within International Relations (IR) as to the extent to which it would cause a rupture in the so-called liberal international order (LIO). This article is concerned with why such a rupture did not occur and draws on theories of racial capitalism to answer this question. It explores the political economy of three dynamics of the global response to the pandemic—lockdowns, border controls and vaccine distribution—and argues that rather than causing a rupture, COVID–19 has reinscribed various domestic and global racial hierarchies. The global divisions of labour and hierarchies of expendability that manifested in the unequal burdens of COVID–19; the border policies that both included and excluded based on racialized notions of who carries disease and the necessity of keeping capital in circulation; and the intellectual property regime and profit motives of pharmaceutical companies that led to inequitable vaccine distribution, are all intimately linked with key ideational and material institutions of the LIO. By drawing theories of racial capitalism into the IR literature on global health, the article points to the need for domestic and global health policy to address the deep-rooted racial inequities that characterized the COVID–19 pandemic ahead of future disease outbreaks.

After biosovereignty: The material transfer agreement as technology of relations.

Increasingly, countries in the Global South-notably South Africa, Brazil, and Indonesia-are introducing material transfer agreements (MTAs) into their domestic laws for the exchange of scientific material. The MTA is a contract securing the legal transfer of tangible research material between organizations such as laboratories, pharmaceutical companies, or universities. Critical commentators argue that these agreements in the Global North have come to fulfill an important role in the expansion of dominant intellectual property regimes. Taking Indonesia as a case, this article examines how MTAs are enacted and implemented differently in the context of research involving the Global South. Against the conventionally understood forms of contract that commodify and commercialize materials and knowledge, the MTA in the South can be understood as a legal technology appropriated to translate a formerly relational economy of the scientific gift to a market system of science. As a way of gaining leverage in the uneven space of the global bioeconomy, the MTA functions as a technology for 'reverse appropriation', a reworking of its usage and meaning as a way of countering some of the global power inequalities experienced by Global South countries. The operation of this reverse appropriation, however, is hybrid, and reveals a complex reconfiguration of scientific exchange amidst a growing push for 'open science'.

The Battle for Geographical Indication Protection of Basmati Rice: A View from Nepal

This article is a contribution to the debate on geographical indication (GI) protection for basmati rice, stressing its relevance to Nepal. After providing an overview of Nepal’s intellectual property regime, this article gives a detailed account of justifications for Nepal to oppose India’s European Union GI registration of basmati rice. The analysis, which highlights the connection between basmati rice and Nepalese society, focuses on the social and cultural values of basmati rice in local communities. The basmati rice controversy provides an opportunity for Nepal to brand its local product in order to penetrate both national and international markets. The GI system may be an auxiliary agent in achieving these goals.

(Il)legitimacy of international intellectual property regime?

AbstractThe recent Covid-19 global health crisis not only brings into sharp relief the current problems afflicting the international intellectual property regime (IIPR) but also calls into question its legitimacy as an international authority. Against this backdrop, the article aims to launch an investigation into the legitimacy of the IIPR, as an international co-ordinative authority, designed to protect IP rights without prejudice to international trade norms. Drawing on Raz’s service conception of authority, it explores whether the IIPR lives up to its promises by enabling co-ordination between states over IP rights without undermining the initial balance on which it is founded, struck between developing and developed countries, as well as between international protection of IP- cum-trade rights and domestic regulatory autonomy. It does so by classifying the historical evolution of the IIPR under three different phases: (i) its foundation, (ii) before, and (iii) after the TRIPS-plus. Upon showing the legitimacy challenges inherent in its undemocratic foundation, the article points to the success of the regime in finding a balance between conflicting interests before the TRIPS-plus era. Later, it underlines the many challenges that come with linking the IIPR to the investment regime and argues that the FTAs and frequent regime-shifting activities put further pressure on the authority and legitimacy of the regime. Stressing the importance of democratic participation for the legitimacy of any co-ordinative authority, the article casts doubt on the IIPR’s legitimacy and concludes by raising some points to overcome the ongoing legitimacy challenges.

Intellectual Property Protection for Sports Performances and Sports Moves: An Analysis Under the U.S., EU, and Indian Laws

Fostering innovation and creation in every aspect of life has made intellectual property rights (IPR) more prominent. Sports being an inseparable part of human life, are no exception and have seen massive growth in recent times. However, the same is not adequately addressed as its regulation is governed through piecemeal legislation in India. This article aims to analyze the feasibility of extending protection to the performances and moves of sportspersons under the intellectual property regime. Given the dearth of analytical study on this aspect, the present article will make a significant contribution considering the recent advancements and participation of Indian contestants in various sports, including aesthetic sports, such as gymnastics. With a divide in the scholastic views about extending intellectual property protection to sports performances and moves in special reference to adversarial and aesthetic sports, it is relevant to analyze this challenge to offer concrete solutions for carving a better future for the sports industry and the athletes. Part I of this article introduces the premise of the issue under study along with the interface of sports and intellectual property. Part II of this article deals with issues pertaining to the protection of sports moves and performances under the three most important types of intellectual property: patent, trademark, and copyright. Part III concludes the article with recommendations for the challenges under study.

“Blighted Futures: The Soybean Assemblage and Argentina’s Agro-extractive Turn”

Argentine GM soybean producers find themselves in an untenable situation. They must produce more even though pressures like weed resistances, global commodities price fluctuations, and an unpredictable tax regime pose ever greater challenges. Meanwhile, public sentiment has largely turned against the rural sector for its opposition to tax increases and the under-regulated use of agrochemicals. There are, however, no easy alternatives now that producers find themselves in the grips of this agro-economic complex. Argentine GM soybean producers' experiences of how they arrived at a point of agro-extractivist lock in is the focus of this article. To better understand their perspectives, this article elaborates the “soybean assemblage.” This consists of histories, politics, actors, and more-than-human agents that stabilized the GM soybean industry in Argentina, keep it in place, and render it fragile. This includes how autogamous soybeans and an intellectual property regime function in Argentina, the country’s famously fertile land and its position within the national imaginary, Kirchnerist politics that rely on soybean exports to fund social programs, producers' economic interests and sense of duty to the nation, the discipline of agronomy as a site of agrochemical knowledge production, and how agrochemicals, namely glyphosate, created long-term dependence under the guise of safe use.

An (un)common remedy to Indigenous communities’ subsistence: revisiting Traditional Knowledge Commons

Indigenous Traditional Knowledge (ITK) has been at the centre of heated debates about patent and intellectual protection for a long time. Efforts to normatively regulate the protection of ITK are imbued by a property-based logic associated most prominently with intellectual property regimes, which focus primarily on its economic value. However, such an approach collides with the spiritual, cultural and sacred character of Indigenous Traditional Knowledge. This article aims to provide an alternative for ITK protection through the revamping of the Traditional Knowledge Commons (TKC) concept. It elucidates those TKC traits beneficial to Indigenous communities and identifies potential challenges associated with TKC implementation. The article highlights instances of successfully enacted TKC as evidence of the economic and social capacity of such communitarian schemes, which can further empower Indigenous communities. Lastly, the article explores the viability of establishing a commons-alike ITK management regime on a global scale given the divergent views and aspirations both of communities providing ITK and potential ITK users.

The Revised Case of IP Regimes Under the GloBE Rules: A Canadian Perspective

After action 5 of the base erosion and profit shifting (BEPS) project identified intellectual property (IP) regimes as harmful, the Organisation for Economic Co-operation and Development (OECD) proceeded to recommend that favourable tax treatment be available only under a nexus approach. More than 25 countries now offer a form of IP regime. The introduction of the global minimum tax may limit the effectiveness of IP regimes. The impact of this tax will vary with the circumstances, however. A comprehensive examination of the optimal alignment of innovation tax incentives for multinational enterprises (MNEs) must be undertaken under the GloBE rules. In this paper, the authors begin by providing an overview of the global context of IP regime adoption, and they summarize some research findings with respect to the effectiveness of this type of preferential tax regime in achieving the objectives set by governments. Next, they present examples to illustrate, in simple terms, some of the interactions that must be considered when these regimes are being designed in a Canadian context. From the MNEs' perspective, the impact of the interaction between the GloBE rules and research and development (R & D) incentives will depend on, among other things, (1) the location of the IP income, tangible assets, and R & D activities; (2) the proportion of IP income; and (3) the possibility of leveraging the corporate structure. From a tax policy perspective, the introduction of the GloBE rules will in some cases not alter the suitability of an IP-preferential regime when the effective tax rate remains above 15 percent. When the GloBE rules apply, however, the characteristics of the tax regime—for example, IP regime tax rates, R & D incentive mechanisms, and (most of all) the additive effect of the measures (federal plus provincial measures, and R & D credits plus IP deductions)—will alter the results. From the perspective of tax competition, the opportunity to adopt an IP regime also depends on the perceived risks of losing or deterring R & D activities now that IP regimes are related to local R & D activities and are widespread. Finally, the federal-provincial context complicates the design and the deployment of a tax policy that is aimed at stimulating innovation and that will require some form of negotiation, if not cooperation, with the implementation of a global minimum tax.

Defining Trade Secrets in the United States: Past and Present Challenges – A Way Forward?

When approaching an analysis of a particular area of law, one must initially locate and understand the definition of its core concept. Yet in trade secret law serious obstacles impede the process. Unlike other intellectual property (IP) regimes, such as copyright and patent law, the core concepts of which are subject to unitary definitions governed by international treaties or domestic statutes, the trade secret concept has received no parallel treatment and, until recently in the United States, remained mainly defined under common law. Subtle differences in the way trade secrets were judicially conceived often generated conflicts between courts, opening the door for the application of divergent rules on similar points. This confusing background prompted the individual U.S. jurisdictions to gradually orient towards implementing statutory provisions in defining trade secrets. Despite the fact that U.S. trade secret law has since seen several statutory interventions at state and federal level, the precise meaning and definitional parameters of the concept remain elusive. This paper probes the existing trade secret definitions applicable in the U.S. via analysis of the divergent sources of law that underscored their formulation from the past until the present and identifies the challenges pertinent to their application in practice. Its aim is to analyze and compare these legal sources: first, to determine whether the current definition for the concept of a trade secret is adequate, or whether perhaps the existence of the multi-tier system impedes a party’s ability to identify trade secrets in a cross-border context; and second, to investigate whether a unanimously accepted definition under a pre-emptive statute complementary to one under an elaborated internationally binding treaty might remedy this issue.

RELEVANCE OF PATENTS IN THE GROWING FASHION INDUSTRY

Design patents are always considered as not an important tool for protection of designs under the India fashion scenario. Despite the fact that India's fashion industry is one of the most primitive industries and is estimated to be at around 110 billion dollars in the present time, and also is expected to cross 200 billion dollars by 2022. The textile and apparel industry in India is vital to economic competitiveness around the globe, as it contributes to almost 26% of India’s foreign exchange earnings. Employing at least 30 million people and many more in allied activities, the sector promises to build an ever-increasing job generation scheme and accounts for around 18% of the nation's industrial employment. In order to furnish this growing demand and supply by the consumers, the industry is constantly trying to incur changes through inventions, creations, designs through technology based advancements and also increase the productivity by lowering down the expenses for the same and achieving high generation of revenues. Many designers do not effectively try to protect their design through the regime of intellectual property, which stands as the most crucial when considering design as an aesthetic element. multiple efforts have been initiated by various designers, but have been mostly stalled or have caused problems in implementation may be due to lack of adequate laws in this area, but the growing space for copied designs and the relative impact of knockoffs and counterfeiting - serves as a threat to the fashion industry. as a result of which both emerging as well as established designers have to suffer and face the brunt of it. While a statue protecting fashion designers, does not find its existence under the Indian law, though there are certain laws in under the IP regime in India, where the designers are trying to sought protection and taking a legal stand against serious cases of infringement and piracy. This paper discusses about the crucial role of patents in the industry of fashion, how knockoff goods create a serious threat in the digital world, consider why designers do not usually choose to protect their work under the existing intellectual property protection, and show how patents can serve as an effective yet feasible way for designers to protect their designs.

Geographical indications as global knowledge commons: Ostrom's law on common intellectual property and collective action

AbstractIn this article, we reconceptualize, using an extended discrete and dynamic Ostrom's classification, the specific intellectual property (IP) regimes that support geographical indications (GIs) as ‘knowledge commons’, e.g. a set of shared collective knowledge resources constituting a complex ecosystem created and shared by a group of people that has remained subject to social dilemma. Geographical names are usually considered part of the public domain. However, under certain circumstances, geographical names have also been appropriated through trademark registration. Our analysis suggests that IP laws that support GIs first emerged in Europe and spread worldwide as a response to the threat of undue usurpation or private confiscation through trademark registration. We thus emphasize the nature of the tradeoffs faced when shifting GIs from the public domain to shared common property regimes, as defined by the EU legislation pertaining to GIs. In the context of trade globalization, we also compare the pros and cons of regulating GIsex-anterather than engaging inex-posttrademark litigation in the courts.

„Marka”w krzyżowy ogniu dyskursu prawnego i ekonomicznego. „Marka” jako dobro osobiste

This paper is a small glimpse of a study whose objective is to ascertain the relationship between the legal and economic notions of a brand. It also seeks to establish whether a brand can lawfully be regarded as a “personal interest” distinct from products covered by an intellectual property (IP) regime under Polish law. This pilot article is the outcome of an initial investigation conducted to launch grant-funded research. Strong brands are said to improve customer relationships, reduce price sensitivity, and boost the value of organisations, all of which are desirable outcomes for firms, according to marketing and economics studies. As a result, knowledge in branding and brand man-agement is an essential yet underappreciated element of business success. Regarding the legal perspective, while some judgements appear to use the term ‘brand’ as an entrepreneurship , the great majority of rulings appear to view a brand as a good name or reputation.

The Jurisprudence of Patentable and Non-patentable Inventions: Nigerian in Perspective

Patent is an industrial property right granted by the government of a state to a patentee. It is an intangible, incorporeal and exclusive right granted under the Law to an invention. While an invention is something that has never been made or existed before. Patents are granted to inventions, but not every invention qualify for grant of patent, hence there are patentable and non-patentable inventions. An invention is patentable if it is new, results from an inventive activity and is capable of industrial application (s.1(1) of the Patent and Designs Act 2004). Several textbooks, case laws, statutes(local and International), internet sources reveal that Nigerian legislation inadequately granted patent to inventions, wherein it did not grant patent to some inventions which International intellectual property regime stated patent should be granted. The Laws of developed countries like USA have wider protection of inventions than Laws of developing countries like Nigeria. Hence the Nigerian Law is narrow in the inventions that should be patentable as against the International Intellectual Property Regime.

Trade Secrets in Biologic Medicine

Can something be both open and secret? That is the conundrum facing society as trade secret rights chafe against patent rights in cutting-edge, biologic medicine. The conflict is unsurprising. Trade secret has emerged as a relatively late bloomer among the family of intellectual property rights and only recently has begun to establish the boundaries of its own space, a process in which it will inevitably knock against other intellectual property doctrines already occupying their own domains. Nor is it surprising that the clash would arise in a fast-moving area of medical science. From insulin products, to cancer treatments, to mRNA vaccines, companies are staking the health of their companies on biologics. There is a dearth of legal literature on the topic of trade secrets in the biologic space and almost nothing regarding how trade secrets interact with the patent system in that domain. These scientific and legal areas are sufficiently complex that even the most intrepid scholars fear to tread. This article explains in detailed and accessible language how the systems are working together to the detriment of society. To address the problem, this article argues that a company receiving a patent on a drug product should be required to disclose the full range of trade secrets necessary to make that drug. As the descriptions below will explain, patent applicants are able to satisfy the patent requirement of providing sufficient disclosure that “one skilled in the art can make and use” the invention, without actually providing the information to do so. The surrounding regulatory systems intended to facilitate sharing of clinical trial data suffer the same problem. As is frequently said in biologics, “the process is the product.” In other words, the only way to define something derived from elements of living organisms is by describing the process of producing it. Thus, lack of process information is particularly problematic with biologics. Being faithful to the theoretical underpinnings of the intellectual property regimes requires a resolution of this problem and the establishment of a more effective boundary line between trade secrets and patents for biologic medicine.

NAVIGATING THE COMPLEXITIES OF IP IN AGRICULTURE: MILESTONES AND CHALLENGES

The adoption of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS,) by the World Trade Organization (WTO) propelled the member countries towards the realization of the need to maintain certain minimum standards of protection for intellectual properties. Today, Intellectual Property (IP) has suffused through all spheres of our lives. It holds immense significance in boosting the economies of several nations. There is hardly any sector that has remained untouched by it. IP protection was not given much recognition in the agricultural sector. But, with time, considering the varied aspects of this dynamic and vast sector, IP has also yielded new tones from time to time. The protection mechanisms under the IP regime have taken different shapes for providing suitable protection to the various aspects of the agricultural sector. At present, we have several IP rights recognized in the sphere of agriculture, including, Farmers’ Rights, Breeders’ Rights, Community Rights, right over the protection of Traditional Knowledge, Right to Access and Benefit Sharing (ABS), etc. With this paper, the authors seek to delve into all the IP protection mechanisms traversing the wide-ranging dimensions of the agricultural sector. This article is an attempt at investigating: (i) the milestones which led up to the current scenario of IP protection in agriculture; (ii) the role that is played by Intellectual Property in strengthening & fortifying the agricultural sector, and (iii) the issues related to IP in Agriculture. An attempt has also been made to explore all the initiatives taken up globally to protect IP in Agriculture, along with the prospective measures that can be taken to address the prevailing issues.

Navigating Intellectual Property Rights: Fostering Innovation, Access, and Education in the Indian Context

This research paper aims to examine the current state of intellectual property rights (IPRs) and propose a way forward to address the challenges faced by various stakeholders in the global intellectual property landscape. Specifically, the paper will look at the state of intellectual property rights around the world. In this paper, researcher discussed the role that intellectual property rights (IPRs) play in fostering innovation, creativity, and economic growth. We also highlighted the controversies that surround IPRs, such as the debate on their impact on access to essential medicines and the balance between protection and competition. In addition to this, the article investigates the efforts made by education sector in India to promote IPR as an integral part of education and academics. The way forward that has been suggested involves taking a balanced approach that takes into account the interests of all of the stakeholders and acknowledges the changing nature of intellectual property in this age of digital technology. In its conclusion, researcheremphasizes the importance of continuing collaboration and conversation between policymakers, industry participants, and members of civil society in order to create a long-term and equitable intellectual property regime.

The Results of Scientific and Technological Activities: Possibility of Legal Protection

The legal regulation of science in Russia today is imperfect. This is especially noticeable in the example of the legal regimes of the results of scientific and technological activities. Neither domestic legislation nor scientific doctrine offers a detailed classification of such results. At the same time, the solution of the issue of effective protection of the rights of scientists to the results of their intellectual activity depends on this. The purpose of this work is to highlight and analyze the existing types of results of scientific and research activities from the point of view of the prospects for their legal protection. To achieve this goal, different methods were used. The comparative analysis made it possible to show the differences between different types of results of scientific and scientific and technical activities. The formal legal method made it possible to assess the state of Russian legislation in terms of regulating relations regarding the creation of the results of scientific and technical activities. As well as a comparative legal method, the application of which made it possible to evaluate international and foreign experience in regulating issues related to the legal regimes of scientific research results. The author proposes several classifications of the results of scientific and scientific and technical activities, using such criteria as the form of expression and content of such a result (results that are intellectual property and results that cannot be granted the intellectual property regime), as well as the sequence of creating the results of scientific and scientific and technical activities (primary and secondary results). The question is raised about the expediency of fixing provisions in domestic law that reflect the content of the concept of open science. In addition, proposals were formulated to improve Russian legislation in terms of introducing measures to increase the effectiveness of protecting the rights of subjects of scientific and scientific and technical activities to the results of research and development.

Intellectual property reform in the laboratory

This study experimentally captures the effects of reforming intellectual property (IP) and measures whether abolishing IP after a vote can reduce the creativity of the most talented innovators. The subjects start in a baseline setting with IP and then move to a second unannounced phase in which IP has or has not been abolished. First, we manipulate exogenously the presence or absence of the possibility to vote for or against IP. Second, we manipulate the information given to the subjects after the first phase. In the information treatment, we inform the subjects right before the vote that a previous experiment that used the same design (Brüggemann et al., 2016) showed that the no IP regime significantly increased players’ gains. Contrary to preregistered expectations, the results show that undergoing a vote does not reduce overall creativity. Actually, the most talented innovators do not vote in favor of IP. Rather, the subjects who vote in favor of IP are those who benefit relatively more from royalties. Surprisingly, no correlation is found between these two populations: the IP in our experiment seems to not reward the best players, but the players who choose an ‘IP-driven’ strategy of focusing on more extensible words while simultaneously relying on their own creations forego cross-fertilization with other players. These are relatively low-skilled players who choose a rent-seeking strategy that maximizes gains from the IP system itself. There are plausible arguments that this result is at least partly valid in the real world, especially for complex and highly sequential innovations where it has been proven that patent trolls and anti-competitive strategies are important.

The Morality of Informality: Exploring binary oppositions in counterfeit markets

In seeking to explain the persistence of the informal economy – defined as the set of economic activities that are illegal yet legitimate to some large groups – scholars often focus on instrumental economic factors; in doing so, the role of morality is often overlooked. In response, we conduct a qualitative study of Pakistani counterfeit bazaars, to understand how market participants construct moral legitimacy in a way that justifies participation in, and thus contributes to sustaining, the informal economy. We reveal how the terms ‘counterfeit’ (representing the informal economy) and ‘authentic’ (representing the formal economy) function as an oppositional pair, both within the emic perspective of market participants but also within a baseline etic perspective of Western Intellectual Property regimes. Compared with this baseline, we find that market participants engage in three types of semantic transformation (invalidation, reframing and inversion) that shape moral assessments of authentic and counterfeit consumption. Through our study, we first contribute to a better understanding of how legitimacy in the informal economy is constructed. We also contribute to theory on ‘legitimacy as perception’, indicating how moral legitimization can occur through a dynamic of binary opposition between what is deemed to be ‘moral’ and ‘immoral’. Our final contribution is towards understanding how morality around counterfeit consumption is constructed.

An institutional view on the leverage of external patent law expertise and patenting performance: Insights from China

Drawing on the institutional setting in China, this study examines how firms seek legal resources and their effects on patenting performance in a weak and transitional intellectual property regime. We illustrate that due to weak protection of intellectual property rights in China, firms rely on external legal resources, which are found to be positively related to patenting performance in terms of the capability of external patent law expertise, but negatively related in terms of knowledge diversity. The marginal effect of the level of external patent law expertise on patenting performance is positive when research and development (R&D) investment is low and negative when it is high, illustrating the negative interaction between R&D investment and the level of external patent law expertise. Furthermore, institutional pressure and support moderate the effect of the level of external patent law expertise on patenting performance. This study advances the understanding of the impact of patent institutions on patent strategies in transition economies and provides novel implications for policy and patent management.