International Intellectual Property Law Research Articles

The hand that sets the table... The political economy and self-reflexive project of intellectual property law in relation to traditional knowledge

The article critically examines the political economy of intellectual property (IP), and the encounter within TRIPS between traditional knowledge holders and a Western-led international IP law regime that is turning ever more global. Patents, copyright and trade marks are protected by intellectual property rights. The international regime which governs these is based on Western thinking around ownership and has most recently culminated in the Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS). TRIPS is an attempt to harmonize and enforce intellectual property on a global scale. But this globalizing IP regime has difficulty accommodating the more localized interests of developing countries and indigenous communities who find themselves rich in traditional knowledge (TK). For a number of reasons, TK is not easily accommodated by Western IP law categories. Therefore, TK often remains unprotected by law, and this can lead to uneven commercial and cultural exploitation of agricultural, medicinal and biodiversity-related knowledge, as well as of expressions of folklore in music, dance, song, designs, stories, artwork and handicraft. The article calls for a renewed focus on moral philosophy in addressing the power relations and the negotiations between different IP interests. A brief history of Western IP law is included to illuminate these interests, and global IP law is challenged to develop novel self-reflexive identities to reflect heterogeneity and difference. At the same time, the interests of traditional knowledge holders are discussed, and an attempt is made to group these into categories including articulations for remuneration, recognition, and return of traditional knowledge. The article suggests that these various articulations themselves use, directly or indirectly, traditional Western categories of intellectual ownership and protection. The article further argues that in circumstances in which the international IP law regime is associated with an over-homogenized legal self-identity, and with legal-legislative imperialist practices, a global regime should build cultural bridges and incorporate legal hybridities and heterogeneous identities.

The International Treatment of Biological Material as Intellectual Property

AbstractThe Agreement on Trade Related Aspects of Intellectual Property (TRIPS) of the World Trade Organization was negotiated prior to the commercialization of any plant-based biotechnology. While the negotiators of the TRIPS anticipated biotechnology a number of important international issues in the treatment of biological material as intellectual property have arisen in the wake of commercialization. This paper analyses the international treatment of biotechnology and other plant genetic resources in the light of this experience. In particular, the problem of monopoly rents, the differential treatment of scientific discovery versus traditional knowledge in international intellectual property law and differences in scientific capacity are examined. The paper ends with some suggestions for the reform of the international regime for the protection of intellectual property.

United States v. Martignon & Kiss Catalog v. Passport International Products: The Anti-Bootlegging Statute and the Collision of International Intellectual Property Law and the United States Constitution

United States v. Martignon & Kiss Catalog v. Passport International Products: The Anti-Bootlegging Statute and the Collision of International Intellectual Property Law and the United States Constitution

Going global in R&D.

Economics and politics are making offshoring an increasingly attractive option for biobusinesses

The International Intellectual Property Law System: New Actors, New Institutions, New Sources

It is now ten years since the Trade-Related Aspects of Intellectual Property Rights (TRIPS) Agreement was concluded, subsuming that seemingly comprehensive intellectual property treaty into the institutional apparatus of the World Trade Organization (WTO). For many ob servers, TRIPS and the WTO established the framework of a new international intellectual property system. They were the center of the new system, into which other institutional com ponents would feed, and from which other institutions would draw their agenda. The norms that TRIPS and the WTO articulated would inform all aspects of international intellectual property lawmaking. Indeed, around that time, a group of scholars published a collection of essays under the title GATT or WIPO, contemplating the extent to which the WTO would displace the World Intellectual Property Organization (WIPO) as the dominant institution of international intel lectual property law. Ten years on, the answer to that question is neither the WTO, nor WIPO. It is the WTO WWIPO

Patenting genetic materials' unresolved issues and promoting competition in biotechnology

This paper addresses the broader unresolved issues posed by the patenting of genetic materials that are central to dealing with the tension between the patenting and competition schemes, namely distinguishing between what has already been `discovered' and economically useful innovations (including the thresholds for novelty and non-obviousness), the exclusion of some subject matter from patenting and the restrictions on access to genetic resources to facilitate further innovation. The possible solutions of raising the threshold patenting standards, taking advantage of international intellectual property law developments and compulsory licensing are examined as ways to ameliorate the possibly detrimental consequences of current genetic material patenting practices.

Financing Intellectual Property Under Revised Article 9: National and International Conflicts

This is the second of two companion articles on intellectual property secured financing. This one discusses the conflicts with national and international intellectual property law in Revised Article 9. The companion article, Financing Intellectual Property Under Federal Law: A National Imperative, discusses federal law. The essential purpose of intellectual property law is to provide the public with new creations by allowing creators to collect royalties as an incentive to create. Lenders who fund creators look to the intellectual property rights and the resulting royalty stream from licensees to repay the loan. The purpose of Revised 9, however, is to allow licensees to direct royalties to their own secured creditors ahead of creators and their lenders, despite any agreement with a licensor to the contrary. The result conflicts with federal civil and criminal intellectual property law. Revised 9's treatment of assignments and exclusive licenses as really security interests that cannot be cancelled for material breach but only foreclosed by sale at public auction is incompatible with basic federal law. Its in the ordinary course construct has been repeatedly repudiated by the federal courts and held to constitute both civil infringement and criminal piracy. Its embedded and software license as chattel paper rules are preempted by the Copyright Act and endorse infringing conduct. The provisions of Revised 9 that render void all restrictions on assignment of IP licenses are, as even the Official Comments admit, contrary to federal law. Revised 9's in the ordinary course and its prohibitions on anti-assignment clauses can prevent a trademark owner from stopping naked licensing, risking invalidation of the entire mark. Revised Article 9 also confuses the filing and priority rules. By ignoring the difference between a lien creditor and a bona fide purchaser, it now directs most U.S. IP security interests to be perfected by filing in the local UCC office in the District of Columbia. Absent federal preemption, existing U.S. IP security interests not refilled in D.C. by Revised 9's effective date (July 1, 2001) can become unperfected without a grace period. For international interests, Revised 9 requires a U.S. lender loaning against a patent of a Japanese company to be used in the U.S. to perfect by filing, not in the PTO, but in Tokyo, contrary to treaty obligations. Similarly, a U.S. lender loaning against copyright royalties payable to a U.S. debtor from a French company perfects against a U.S. bankruptcy trustee by filing in Paris. The article digests more than 40 countries with national IP registers in which Revised 9 will now require filing, often at considerable expense, to perfect against IP royalties remitted to U.S. debtors. And if a lender does not file against any licensee wherever located worldwide within one year, the security interest can become unperfected retroactive to day one. Revised 9 decimates export financing for the nation's leading export industries. Revised Article 9, in its basic philosophy and statutory mechanics, conflicts with significant aspects of national and international intellectual property law. It raises manifold risks for anyone using it to finance intellectual property.

The New Information Age and International Intellectual Property Law—Emerging and Recurring Issues for the Next Millennium

This paper examines the impact that globalization and technological advancements, particularly the Internet, have had on world intellectual property law, and will attempt to identify trends and developments for the future. As any good economist or stock market analyst will know, a review of the past and an examination of the present are not perfect indicants or predictors of the future, but together, if understood in proper context, they provide some of the best tools we have for divining the imminent and, perhaps, the inevitable. Accordingly, this paper will begin with an examination of the past and present developments in global intellectual property law, with particular emphasis placed on the Agreement on Trade‐Related Aspects of Intellectual Property (‘TRIPs’) and its requirements, loopholes, and ambiguities. Thereafter, a review of the stakeholders in the intellectual property debate, with special focus on the concerns and demands of developing countries, will take place. Finally, the effects of the collision of newly emerging, high‐tech information with the laggard paradigm of intellectual property law will summon forth some predictions on emerging legal and business issues. Oddly enough, these issues for the next century and beyond will be quite recognizable, even familiar, despite the rapid changes that have occurred with the technological revolution of the last quarter century. Indeed, they never die, but appear merely to be recast in different form. Moreover, the paper will conclude that these historic struggles will never cease, but must, by design, form the essential tensions that characterize intellectual property’s core basis.