International Intellectual Property Law Research Articles

From defending the “opposite of property” to the fundamental right to property, the case for the application of human rights law and philosophy to the international intellectual property regime.

International intellectual property law has extended so far in scope, both substantially and geographically, that it plays a role in aggravating poverty, creating crises in access to medicine and in the exploitation of indigenous peoples’ resources, to cite a few of its impacts. This expansion of intellectual property law has been extensively criticised, most famously by “cultural environmentalists”, who compare the public domain to a natural resource which is being depleted by intellectual property rights. While this criticism aptly brings into question the international intellectual property regime, the binary it relies on, between the public domain and intellectual property, does little to address the nefarious human impacts of the regime. Instead, bringing intellectual property law within the ambit of international human rights law allows for a more comprehensive evaluation of ethical concerns and human consequences, bringing nuance that the cultural environmentalists’ public domain rhetoric lacks.

A Double-Edged-Sword Approach to Fighting Pandemics: Patent Waivers and Incentives to Innovate

Although continents recently experienced an apoc­alyptic pandemic that posed a mortal danger to millions of people, a new, even deadlier pandemic could soon emerge… The paper seeks to address the role played by patent waivers and current contractual arrangements in the pharmaceutical indus­try in addressing the dangers caused by the current and future pandemics. The process of waiving patents is explored where it is argued that it sadly cannot amount to the knight in shining armour that everyone has been expecting. Due to the lack of coordination, the tremendously long process, and the potential block in innovation arising from pharmaceutical companies having smaller incentives, more attention must be paid to other alternative institutional solutions. Drawing from the economics literature on innovation in the pharmaceutical sector, a concep­tual framework is proposed for improved legal intervention in the case of patent waivers in international intellectual property law instruments. In addition, the paper provides a comparative law and economics treatment of current patent waivers in US, EU, and international law instruments.

To Me My X-Men: An Analysis of the European Union’s Engagement with International Intellectual Property Law Through the Prism of a Trade Agreement with the Mutant Nation of Krakoa

The purpose of this Article is to examine the European Union’s external relations with the hypothetical mutant nation of Krakoa through the perspective of intellectual property and human rights filtered through a trade agreement between the parties. In doing so, the potential trade agreement with Krakoa allows for the critical reflection of the scope and application of international intellectual property protection, enforcement, and development but also allows for challenges to this existing standard that are not possible elsewhere due to broader economic and political reasons. It discusses the progressive inclusion of TRIPS-Plus provisions in EU international agreements and how this sets the stage for this trade agreement. This paper identifies the extent to which the EU is seeking higher levels of intellectual property protection in the global sphere and discusses to what extent the use of TRIPS-Plus provisions has clashed with the objective of the promotion and protection of human rights in the EU external action. In essence, what can be learned from a trade agreement between the EU and Krakoa, and how this can be applied to future negotiations of the EU and its trading partners at the international level.

Ensuring access to treatment for victims of sexual violence as part of the state biosecurity

Keywords: intellectual property rights, access to treatment, medicines, sexual violence,humanitarian disaster, war, biosafety
 The article focuses on solving the problems of accessto medicines, medical devices in the realities of wartime by the mechanisms of intellectualproperty rights to ensure the biosecurity of the state. As of today, part of the south andeast of Ukraine is under temporary occupation, where war crimes, in particular (sexualviolence/rape) are committed. A victim of sexual violence may need emergency medicalcare for fractures, soft tissue injuries and other injuries, but also needs means of preventingsexually transmitted infections. Committed war crimes: sexual violence, poses agreat danger to the biological security of the country. The provision of medical care andaccess to prevention methods for sexually transmitted infections, hepatitis B and HIV,pregnancy prevention, are all threats to biosecurity, which will lead to the spread of infectiousdiseases and HIV. Ukraine, as a member of the TRIPS Agreement, aiming to treat or provide preventionto a larger number of victims of sexual violence, in accordance with Article 39(3) of theTRIPS Agreement, has legal opportunities to ensure the right to life and health of victims,and therefore to provide access to treatment for post-exposure prophylaxis of HIV,prevention of pregnancy, prevention of sexually transmitted diseases through the mechanismof intellectual property rights, namely to increase the availability of generic antiretroviraldrugs in accordance with the requirements of the TRIPS Agreement. Intellectual property rights play an important role in times of war in expanding accessto medicines and medical devices. It is significant to emphasize the importance andtimeliness of applying the mechanisms of limitation of intellectual property rights tosave people's health, as war is one of the factors that allows a TRIPS Agreement Memberto use Article 73. Article 73 of the TRIPS Agreement provides for security exceptions thatMember States may invoke to defend their non-compliance with the TRIPS Agreement.This provision is unique in the context of international intellectual property law. The applicationof such mechanisms will allow the state to treat more people who need immediateprevention and treatment. In our opinion, the application of this provision means theapplication of the security exception to suspend the rights of patent holders to facilitateeither the import or local production of essential medicines and medical devices.

Политика в области интеллектуальной собственности в условиях развития искусственного интеллекта: подходы и направление развития

As practice shows, every year the interest of society in the development of artificial intelligence is noticeably growing. Intelligent systems can multiply the productivity and efficiency of work and, at the same time, provoke discussions around the future of intellectual property. The study of the issue of the protection ability of objects created by artificial intelligence showed that they are subject to legal protection within the framework of two institutions of law, depending on the degree of human intervention, determined by its functions (technical, organizational, controlling). Firstly, objects created with the help of artificial intelligence, which acts as a tool in the hands of a person, are subject to legal protection within the framework of the current legal regulation. Secondly, these are objects created autonomously by artificial intelligence, including with the participation of a person, but who made only an organizational and technical contribution or controls the process: such results should be equated with objects of related rights. The owner of objects created by artificial intelligence autonomously can be considered a user of artificial intelligence, and in his absence - the owner of a computer program - artificial intelligence. In order to unify the norms of international intellectual property law, it is necessary to consider the issue of introducing new objects of related rights into the lists of major international agreements in the established area: in particular, the Agreement on Trade Aspects of Intellectual Property Rights (Marrakesh, April 15, 1994) and Rome Convention (Rome, October 26, 1961). Technical solutions created by artificial intelligence can also be patentable, but the issues of regulating artificial intelligence in patent law still require detailed study.

Medical Countermeasures for Pandemic Response and Intellectual Property Rights

Abstract The current article addresses the question of whether and under which circumstances access to medical countermeasures against pandemics, such as COVID-19, may constitute a community interest under international law. First, the intertwined concepts of global public goods and community interests are fleshed out. Second, the analysis expounds whether the protection against pandemics, including immunization, can be framed as a community interest, and which obligations would result. Third, the relationship between community interests and intellectual property rights as enshrined in international law is explored. Fourth, the conclusions try to reconcile the goals of international intellectual property rights and the protection against pandemics. Positive obligations to furnish medical countermeasures may not attain the consent of a sufficiently large number of states. Nevertheless, articulating the protection against pandemics as a community interest should entail obligations to refrain from resorting to international intellectual property law to impede developing patent-protected medical countermeasures in other countries.

The COVID-19 pandemic and long-term incentives for developing vaccines: Patent law under stress.

Continents are facing an apocalyptic pandemic that is terribly dangerous for millions of their inhabitants. This paper seeks to address the role of intellectual property (IP) law in addressing the problem of the COVID‐19 pandemic. We suggest that the current international IP law regime and the Trade‐Related Aspects of Intellectual Property Rights Agreement are not insurmountable obstacles for access to a successful COVID‐19 vaccine. The publicly advocated fundamental reform or even abolition of the present IP law regime under serious information asymmetries might be counterproductive and distortive. Via existing compulsory licensing, advance purchase agreements and the employment of patent‐pools, research subsidies, reward mechanisms and reputational sanctions, governments can take the steps needed to effectively overcome any IP‐associated barriers to access to crucial medicines/vaccines, particularly during the COVID‐19 pandemic. Moreover, the current wave of medical research on COVID‐19 suggests the previous vaccine R&D ‘failures’ were driven by the modest demand for such vaccines and were not due to an inadequate IP‐incentive stream. The paper also suggests today's EU competition law rules on the horizontal exchange of information could be seen as an impediment to innovation and thus be temporary suspended.

Does International Law Need a Conscience? Evaluating the India–South Africa Proposal to Suspend TRIPS Obligations and the COVID-19 Vaccines

Abstract There is undoubtedly a consensus within the international community that ‘vaccine nationalism’ is an undesirable state of affairs. However, states are self-interested actors and in the absence of constraints imposed by international economic law this pursuit of rational self-interest is likely to result in an outcome that is unjust on a global scale. The recent proposal by India and South Africa to suspend TRIPS obligations for the duration of the COVID-19 pandemic has been rejected within the WTO. This proposal constitutes a recognition of the inadequacies surrounding the TRIPS compulsory licensing scheme. Yet, the immersion of intellectual property law within international investment law together with the proliferation of free trade agreements containing TRIPS-plus obligations would likely have made such a proposal unworkable. We argue that the fundamental problem is that the TRIPS Agreement lacks a defined concept of conscience that governs both its operation and interpretation. Such a principle exists in the common law within the field of private law. The principle, in its various doctrinal iterations, navigates the tensions between different parties while serving an underlying purpose of justice within the common law. It has much to offer international intellectual property law.

The Adoption of International Arbitration as the Preferred ADR Process in the Resolution of International Intellectual Property Disputes

Abstract This article, which is intended for arbitration practitioners, demonstrates that international arbitration as a subset of the field of alternative dispute resolution (ADR) offers a useful toolkit for the expeditious resolution of international intellectual property law disputes. The article demonstrates how the theory and practice of international arbitration is particularly well poised to address some of the specific considerations and requirements of paramount concern to the international intellectual property lawyers and their clients. The article will explain how the inherent features of the international arbitration legal landscape combine to indicate that it should be considered as the preferred method of ADR and explain how each of these features can provide both time and cost efficiencies. The article will identify the legal reasoning behind the benefits inherent to choosing international arbitration and will also address those circumstances when international arbitration may be precluded or otherwise considered unsuitable for intellectual property matters. The article examines several distinct benefits that international arbitration uniquely offers to international intellectual property law users and highlights some areas of the field that require additional caution.

The Intellectual Property Turn in Global Health

International intellectual property (IP) law for pharmaceuticals has fundamentally shifted in the twenty-first century from a property-centric to a human rights view. Scholars tend to explain this transformation in the context of both the power struggle between developing and developed countries, and the influence of a social movement that criticized IP rights as hindering access to essential medicines. Yet, these explanations leave out the central role of two international organizations, the World Trade Organization (WTO) and the World Health Organization (WHO), and particularly their permanent staffs, whose boundary disputes have shaped international IP law at the intersection of trade and global health. Bringing into conversation historical and legal literatures on global health and IP, this article traces how a human rights perspective on IP emerged as a strategy to reconcile the WHO staff’s sociomedical views of health with an increasingly dominant set of global IP rules. It shows how the WHO staff used the language of economics—an analytical frame favored by the WTO—to advance a then unorthodox economic understanding of IP as a type of governmental regulation. This allowed the WHO to argue that states should enjoy regulatory autonomy to curtail IP rights in order to meet broader state objectives, such as human rights protection. Paradoxically, despite their divergent views on the nature of IP, both WTO and WHO engagement with it heralded the emergence of a new technocratic view of global health that focuses on patentable medicines and technologies, and that has ultimately turned away from the WHO’s sociomedical roots.

Brief of International Intellectual Property Law Professors as Amici Curiae in Support of Neither Party - Ericsson v. Samsung

This brief seeks to draw to the Court’s attention historical, practical, and policy matters pertaining to technical standardization and dispute resolution that bear on the arguments made on appeal by Samsung and Ericsson, including by providing context on the use of anti-suit injunctions (ASIs) and anti-anti-suit injunctions (AASIs) in litigation involving global portfolios of standards-essential patents (SEPs) that are encumbered by “fair, reasonable, and non-discriminatory” (FRAND) licensing commitments.

The Role of National and International Intellectual\xa0Property Law and Policy in Reconceptualising\xa0the Definition of Investment

This article analyses the role of national and international intellectual property (IP) law in assessing IP as a protected investment. It offers two approaches for controlling investment arbitration related to intellectual property rights (IPRs), followed by an examination of the implications and challenges of those approaches. Its main argument is that even if a dispute arises from an investment (IP as an investment), it does not necessarily fall under the jurisdictional requirements of investment arbitration. Rather, assessing IP as an investment must be done by referring to national laws. This is more relevant in the case of IPRs as they are territorial. This means that rights and obligations are derived from national IP legislation. Essentially, only those IPRs that are “protected” by national regimes should be treated as investments. This article also examines the language used in investment agreements and arbitral awards to analyse the role of national law, particularly in determining the validity and scope of IP investments. Then it examines three IP-related arbitral cases to discuss how arbitral tribunals have used national law. Finally, it suggests approaches for controlling investment arbitration by integrating the territoriality principle and the social objectives and bargains achieved through international IP treaties.

Technological Self-Sufficiency and the Role of Novelty Traps

The COVID pandemic has demonstrated the tragic consequences of technological dependency. Unable to manufacture vaccines for themselves, developing countries must rely on obtaining supplies from other nations. While strong arguments have been made to waive international obligations under the TRIPS Agreement to permit these countries to freely use of COVID-related patented inventions, it is not clear that this move would produce sufficient vaccine to meet global demand. Considerable scholarship has been devoted to the question of how to help these countries reach the technological frontier and become technologically independent. In this paper, we identify a novel source of their problem: a structural feature of modern patent law traps technologies in a legal limbo, where there are inadequate incentives to invest in the adaptations and efforts needed to make technologies effectively available in low-income countries. Moreover, the current regime deprives potential innovators of an opportunity to protect their intellectual contributions and begin to build robust innovative ecosystems. The paper proposes a modified patent regime designed to break what we call the 'novelty trap' and discusses its compatibility with international intellectual property law.

The People's Vaccine: Intellectual Property, Access to Essential Medicines, and the Coronavirus COVID-19

This paper explores intellectual property and access to essential medicines in the context of the coronavirus COVID-19 public health crisis. It considers policy solutions to counteract vaccine nationalism and profiteering by pharmaceutical companies and vaccine developers. This paper considers the campaign for the development of a People's Vaccine led by the People’s Vaccine Alliance, UNAIDS, Oxfam and Public Citizen. The WHO has established the ACT Accelerator in order to boost research, development, and deployment of COVID-19 technologies. However, the operation of COVAX thus far has been falling short of its original ambitions. The Medicines Patent Pool has expanded its jurisdiction to include the sharing of intellectual property related to COVID-19. Meanwhile, Costa Rica has proposed a COVID-19 Technology Access Pool – an idea for a new institutional structure which has been taken up by the WHO. In the context of the coronavirus public health crisis, there has also been discussion of the use of compulsory licensing and crown use to counteract profiteering and anti-competitive behavior. There has been a push by Universities Allied for Essential Medicines (UAEM) and others for the public licensing of COVID-19 technologies developed with government funding. The Open COVID Pledge has been taken by a number of intellectual property owners. In response to the assertion of proprietary rights in respect of COVID-19 technologies, the open movement has championed the development of Open Science models of science. India and South Africa have put forward a waiver proposal in the TRIPS Council to enable countries to take action in respect of COVID-19 without fear of retribution under trade laws. While the United States has been willing to support a TRIPS Waiver for vaccines, there remain a number of opponents to a TRIPS Waiver – including the European Union, Germany, Japan, and Switzerland. This paper makes the case that international intellectual property law should accommodate a People's Vaccine.

Does Pakistan’s Intellectual Property Law Conform to International Intellectual Property Law? An Overview

Piracy and counterfeiting are not a problem of any one country or region but these evils have engulfed the whole world. That’s why in the presence of these evils we are unable to take advantage of the benefits of intellectual property. To eradicate these evils, each country has its own laws in accordance with international intellectual property law. Pakistan also has intellectual property laws. This research seeks to determine whether Pakistan’s intellectual property law is in line with international intellectual property law. For this purpose, an overview of legal and institutional framework for intellectual property in Pakistan and at international level has been taken. This study concludes that Pakistan’s intellectual property law conforms to international standards and the only requirement is that these laws be enforced effectively.

Introductory Remarks by Rochelle Dreyfuss

I would like to thank the American Society of International Law for asking me to convene the Fifth Annual Detlev F. Vagts Roundtable on Transnational Law. When I was chosen back in 2019, I was very pleased to learn that the Society and the Vagts family were interested in hearing about international intellectual property law. As it has turned out, that choice was prescient. Given the current pressure to find and rapidly distribute treatments and vaccines to combat the COVID-19 pandemic, intellectual property rights have become a major focus of international concern. On the one hand, these rights encourage innovation. However exclusivity can also raise costs and pose obstacles to widespread distribution of the fruits of technological progress.

Crying “Fraud” and Cost-Shifting: U.S. Foreign Trademark Application Regulation and International Trade Law

This paper examines new U.S. regulation of foreign trademark applications through the lens of international trade and international intellectual property law treaties and conventions to which the U.S. is a member, and ultimately concludes that while there is unlikely to be a successful international challenge to a July 2019 USPTO regulation on these applications, the regulation itself violates American commitment under the Trade-Related Aspects of Intellectual Property (TRIPS) Agreement.

Avoiding the TRIPS Trap: A Path to Domestic Disclosure of Clinical Drug Data Consistent with International Norms

Should doctors, patients and policy makers have complete information about new drugs? Although complete transparency may seem like the obvious answer, the reality is that publicly available information is often incomplete. Before a drug may be approved for sale, a regulatory agency such as the Food and Drug Administration (FDA) will review extensive data created by a company seeking approval of such a drug. However, the FDA considers such information to be protected from public disclosure as a commercially confidential trade secret. In the United States, scientific papers concerning new drugs are often based on proprietary data and published articles often present skewed results compared to the complete data possessed by the FDA. The implications of articles based on proprietary data typically get short shrift. However, two articles on Covid-19 were recently retracted after independent scientists questioned the conclusions and the authors admitted that the articles were based on proprietary data that could not be verified, leading to their retraction. Although the intense public spotlight on Covid-19 highlighted this problem, doctors are generally forced to rely on incomplete information based on similar proprietary data in making prescribing decisions. This unnecessarily compromises patient health and safety. Although the EU and Canada have recognized the public health benefit of more transparency and increased publication of clinical data for new drugs, understudied aspects of international intellectual property laws may limit disclosure. In particular, all member countries of the World Trade Organization (WTO), including Canada and the EU member states, must comply with certain intellectual property minimum requirements, including one that governs the data at issue. Article 39(3) of the Trade Related Intellectual Property Agreement (TRIPS) requires WTO countries to protect data submitted to regulatory agencies from “uncommercial fair use.” This highly contested term has never been definitively clarified in the WTO’s dispute settlement process. Moreover, TRIPS permits countries to disclose such data under one of two exceptions that have been largely ignored in the literature so far. This Article provides the first comprehensive analysis of whether domestic disclosure of clinical data is permissible under either of these two exceptions. In doing so, this Article contributes to broader policy issues. First, although some policy makers have long recognized that international obligations may constrain domestic options, this Article provides a concrete case study of the dangers of creating new international intellectual property norms—especially when such norms are created by a select group of stakeholders that may not represent all interests. This is a timely and important issue since nations have generally been entering into international agreements with increasing levels of intellectual property rights since the conclusion of the WTO. Second, the Article suggests actions to consider in both the domestic and international contexts regarding clinical data, including specific suggestions to improve clinical data disclosure in the United States.

Facebook debate: facilitating international, intercultural knowledge exchange and collaboration in the field of international intellectual property law

ABSTRACTThe project discussed here involved an online debating activity between intellectual property (IP) law students in Egypt and the UK, using a closed group on Facebook. The aim was to harness freely available online social media technology to create a space in which valuable discussions and learning could take place. We showed that Facebook can be a powerful educational tool to encourage active learning and usefully connect learners across continents. In enabling the exchange of views between students in different jurisdictions, Facebook provides exposure to different cultures and different perspectives as well as different legal cultures and different legal systems, while also, importantly, enabling participants to identify commonalities. This debate focused on IP law, which is of increasing international importance, and specifically on the topic of access to medicines, which is highly contentious. Through the activity, students learned that they need not only to learn the law, but also to appreciate the socio-cultural and political complexity underlying policy issues in different jurisdictions. On reflection, the Facebook debate definitely enhanced the study of IP law through an interesting and enjoyable international, intercultural activity, led by staff and students, which successfully extended the classroom experience.

Human Rights and Global Pharma Converge

In this article, based on the annual public oration of the Australian Centre for Health Law Research at QUT, Michael Kirby explores the interaction between the discovery of life saving and health preserving pharmaceuticals and international intellectual property (IP) law. He explains the investigation of this topic in a number of transnational bodies in which he has worked. He outlines the specific benefits of antiretroviral medicines for treatment of HIV causing AIDS and HCV (Hepatitis C). He explains the advent of the United Nations Sustainable Development Goals in 2015 and his participation in a High Level Panel created by the UN Secretary General to ensure their attainment. The article closes with some suggested further directions in international IP law and health access.