International Intellectual Property Protection Research Articles

从高新技术产业论国际知识产权保护问题

从高新技术产业论国际知识产权保护问题

From rules to methods: application of international intellectual property treaties in domestic courts of China

Abstract This article reviews the methods taken by domestic courts in China in the judicial application of international intellectual property (IP) treaties. The proposition of the ‘Belt and Road’ initiative reinforced the significance of IP protection in China, and the emergence of IP courts allows for significant flexibility in the judicial application of international IP treaties. However, the domestic rules regarding treaty application provide rather limited guidance to domestic courts. Thus, the methods of treaty application in judicial practice have been inconsistent and unpredictable. This article finds that, in the vast majority of the cases, domestic law has been applied as the only legal authority. In a small number of cases, both treaty and domestic law were applied. In addition, an innovative approach should be noted in which international treaties are cited to interpret domestic law. Finally, the article puts forward some suggestions for improvement.

Development and Promotion Strategies of Chinese Agricultural Products in the Context of International Trade: Based on the Perspective of Intellectual Property Protection

In today's globalized economy, the means of economic competition between countries has shifted from relying primarily on tariffs and quotas to relying on talent, intellectual property rights and technical standards. The decisiveness and influence of international intellectual property rights on international trade is becoming increasingly obvious. As a big agricultural country, China possesses a large number of special agricultural products and is also a big exporter of agricultural products, so the protection of intellectual property rights of Chinese agricultural products is particularly important. Since the promulgation of the Agreement on Intellectual Property Rights (IPR), the United States will be linked to international trade and intellectual property protection and as a reason to continuously improve the international intellectual property protection standards. At present, China's agricultural products in international trade there are still many difficulties, from the perspective of intellectual property rights, mainly manifested in the lack of protection of agricultural patents, agricultural products, geographical indications. This paper will start from the beginning, with intellectual property protection as the entry point, analyse in the new situation of international trade in China's agricultural products development and promotion strategy.

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.

Historic Tensions Involving International Intellectual Property Protection of Medical Technology with Disastrous Public Health Consequences

Historic Tensions Involving International Intellectual Property Protection of Medical Technology with Disastrous Public Health Consequences

Historic Tensions Involving International Intellectual Property Protection of Medical Technology with Disastrous Public Health Consequences

Historic Tensions Involving International Intellectual Property Protection of Medical Technology with Disastrous Public Health Consequences

The Role of WIPO and WTO in International Intellectual Property Disputes

Concerning about the international intellectual property protection and dispute resolutions, it is cannot be denied that WIPO and TRIPS regime of the World Trade Organization have an important role in the whole issue. However, recent years some of the problems of international trade frictions have exposed challenges for these two international organizations. This paper aims to review the history and development of the two international organizations, and analyze their organizational nature and responsibilities. While discuss the new challenges, this paper analysis the role that the two international organizations can play in the current international protection of intellectual property rights. And explore the possibility that in the future, WIPO will gradually integrate into regional dispute settlement; WTO would might give a full play to the characteristics of trade agreements and the possible adjustment direction.

The effect of intellectual property treaties on international innovation collaboration: a study based on USPTO patents during 1976–2017

PurposeStudies have indicated that international innovation collaboration has promoted technology transfer and knowledge spillover between countries. The conclusion of various international intellectual property (IP) treaties has played an essential role in optimizing the international innovation and collaboration environment. This study investigates the effect of IP treaties on international innovation collaboration and whether international IP treaties can promote collaboration between a country and other economies in the world.Design/methodology/approachAfter collecting and extracting the patent record data from the United States Patent and Trademark Office (USPTO), a final dataset of 3,213,626 cooperative patents and 465,236 pairs of collaborations between two countries or regions is established. Based on the international patent collaboration data of 192 countries during 1976–2017, the changes in patent collaboration indicators after these countries joined 23 IP treaties are analyzed.FindingsInternational IP treaties have significantly increased the number of patent cooperation countries of a country and its importance in international cooperation networks. The role of IP treaties is more manifested by the increased opportunities for a country's international innovation cooperation than its influence on global innovation; this is of extreme significance for developing countries to introduce advanced technologies.Originality/valueGinarte and Park (1997) have confirmed that IP treaties have helped to raise the level of IP protection. In this study, the increase in the degree centrality of the international innovation network is evidence of IP treaties to promote innovation cooperation. For a developing country, joining an intellectual property treaty may strengthen intellectual property protection and optimize its own international innovation cooperation methods.

The Basic Orientation of Changes in Intellectual Property Law in China

The theory and practice of intellectual property law in China have gone through a process of transplantation, introduction, self-reliance and innovation. In the past 40 years of reform and opening up, starting from basic national conditions and development needs, China has correctly grasped institutional attributes and functions, shaped legal value objectives, constructed operational mechanisms for the rule of law and development, proactively carried out institutional transformation and reconstructed the spirit of law, thus achieving the localization of intellectual property law. At the same time, China has been active in responding to the issues of pluralism, stages, risk and non-modernity in the development of legal modernization and has promoted the development of the knowledge economy through institutional innovation in intellectual property; at the same time, it has effectively coped with the issues of diversification, fragmentation and unilateralism in the course of legal integration and has participated in the construction of a global governance system for intellectual property, thereby providing a new impetus for the international protection of intellectual property. On the basis of the sinicization or localization of intellectual property law, China has found its own means of achieving the modernization of law and its own road to the choice of legal integration. The basic orientation of its legal changes offer rich innovative connotations and a clear practical direction.

Proteção jurídica das cultivares na UPOV, no TRIPs e os limites na legislação brasileira: o embate entre interesse público e privado

O avanço da ciência e da biotecnologia na área agrícola e a aproximação entre a ciência e o mercado pelo fomento aos investimentos na área, levam à pretensão de proteção dos direitos de propriedade intelectual sobre a inovação produzida. Uma das formas de proteção das criações de novas variedades de vegetais —sui generis— são as Cultivares. Para desenvolver esta temática, parte-se da análise da proteção internacional da propriedade intelectual sobre cultivares pela UPOV e suas alterações e do TRIPs, para, em seguida, verificar o regime jurídico de propriedade intelectual sobre cultivares no Brasil, identificando se os limites da proteção sobre cultivares previstos possibilita o equilíbrio entre os interesse privados e públicos (coletivos).

Interactions between hard and soft power: The institutional adaptation of international intellectual property protection to global power shifts

Prevailing power transition theories focus on hard sources of power to explain why international institutions do, or do not, adapt to shifts in the balance of power among their members. This article argues that, in the wake of such a shift in the balance between emerging and established powers, institutional adaptations depend on both their hard and soft power resources. Soft power matters for institutional adaptations because both emerging and established powers have to justify the use of hard power to their respective audiences. Whether emerging or established powers are able to use the hard power they have depends crucially on rhetorical resources, such as claims of legitimacy and their (transnational) societal resonance. We provide empirical support for our argument through an analysis of the adaptation of the Trade-Related Aspects of International Property Rights agreement and the adaptation of the Convention on Biological Diversity. Emerging powers such as Brazil, India and South Africa were able to bring about institutional adaptations because they not only had the hard power to undermine the respective institutions, but could also build on civil society support that legitimized their demands or constrained established states’ use of hard power to fend off their demands.

Internet freedom and copyright maximalism: Contradictory hypocrisy or complementary policies?

ABSTRACTU.S. advocacy for increased international intellectual property protection and a free and open Internet has been criticized as being inconsistent at best and hypocritical at worst. Placing U.S. copyright and Internet policy in a historical context and using Susan Strange's concepts of structural power and knowledge structures, we argue that copyright and Internet policies cannot be analyzed in isolation, but are intimately and inextricably linked forms of knowledge regulation. All knowledge regulation policies involve balancing access and restriction. Our analysis suggests that the current U.S. policy of Internet freedom and strong copyright protection represents a particular, historically situated strategy designed to exert structural power in the global information economy: Free flow of information creates markets by exposure to intellectual properties, while copyright secures economic benefit to copyright holders from the flow. We argue that a full and honest debate over issues of information access requires acknowledgment of contemporary and conflicting values, with the realization that different societies and interests will weigh access and dissemination differently. Recognizing as legitimate and incorporating these different perspectives into the global governance structures of the Internet comprise the key challenge facing those who favor truly democratic global Internet governance.

Is there a case for non-discrimination in the international protection of intellectual property?

We evaluate the case for non-discrimination in international patent protection. When trade is not subject to any frictions/barriers, requiring national treatment (NT) does not affect the rate of innovation (and welfare) since unfavorable discrimination suffered abroad by innovators in the absence of NT is fully offset by favorable discrimination enjoyed by them at home. When trade barriers exist, however, such international offsetting in patent protection is incomplete and innovation incentives are actually lower under NT. By lumping domestic and foreign patent protection together, NT blunts the overall effectiveness of patent protection in incentivizing innovation in the presence of trade barriers.

Private Governance of Knowledge: Societally-Crafted Intellectual Properties Regimes

The evolutionary challenge global society faces is the decentralized development of legal rules that multilaterally protect social autonomies from violating each other. At the national level, democratic constitutions provide for the resolution of conflicts between different normative worlds, although the focus here is certainly on the protection of autonomies from political encroachment. However, political constitutions make sure that legal orders consider a plurality of normative perspectives. In contrast, international lawmaking can exclusively link to a specific social rationality, lacking any impartial forum for normative reconciliation. This is of special importance for the governance of intellectual resources. The incorporation of international intellectual property protection into the framework of trade relations has resulted in a unilateral economic interpretation of intellectual property (IP) rights. This biased international IP lawmaking does not satisfy the demands of knowledge production in society and the various types of social interaction requiring the use of copyrighted material, as the increasing number of privately-crafted IP regimes indicates. These private regimes reconfigure property rights in a way that is reflective of the environmental conditions of knowledge-sharing in social systems. As it seems, constitutionalization of global knowledge-sharing must take place through the recognition of the jurisgenerative power of societal rule production together with the public role of private law in the judicial review of private ordering. Under conditions of normative fragmentation, the constitution gets dispersed into ecological integrity rules that take account of the multilateral social effects of rights.

Horizontal Inventive Step and International Protection of Intellectual Property

This paper studies the intellectual property protection in a global setting where the protection is based on the patentability requirement. When two countries with similar research efficiencies open trade with each other, the world patentability requirement will rise above the autarky levels of both countries. When two countries with sufficiently different research efficiencies open trade with each other, they will both lower their patentability requirements from their respective autarky levels. The model shows that there is under-protection for patents in the second case, which suggests that these countries may want to strengthen their coordination in patentability requirement.Published as Yang, Xuebing, 2013. Horizontal inventive step and international protection of intellectual property, International Review of Economics & Finance, Elsevier, vol. 25(C), pages 338-355.

Plant Genetic Resources for Food and Agriculture: Legal and Institutional Frame and New Perspectives

This document begins by describing and analysing the international institutional framework, within which both the Convention on Biological Diversity (Cbd), the Trip's about international protection of intellectual property and the International Treaty on Plant Genetic Resources for Food and Agriculture (Itpgrfa) had been originated. The regimes on access and benefit sharing applying to Pgrfa's (plant genetic resources for food and agriculture) are looked into in detail. Then, the new proposal under finalization within Cbd (Cbd Abs) is analized, which could become effective very soon. Finally, a particular focus is put on the research sector on Pgrfa's and how it has been treated and regulated. In connection to this, Itpgrfa 2001 is compared with the forthcoming new Cbd Abs regime, that could open new scenarios and new perspectives for this sector.

Enough is Enough - The Notion of Binding Ceilings in International Intellectual Property Protection

Traditionally, international agreements on IP rights are built on the concept of minimum protection which members must implement in their national laws. The concept implies that members are free to provide more extensive protection. However, that observation needs to be qualified in certain regards. First some agreements do contain provisions which seem to impose ceilings, i.e. maximum rights, or mandatory limitations. Examples for this are the express anchoring of the idea/expression dichotomy in TRIPS and the WCT, and the citation right to be found in Art.10 (2) Berne Convention. Furthermore, pursuant to TRIPS Art.1:1, more extensive protection may only be granted "provided that such protection does not contravene the provisions of this Agreement". In spite of that, the general perception in international IP regulation so far has been that above the prescribed minimum standards there is no ceiling or limit other than the sky. This construction results in a spiral movement - driven by bilateral agreements - towards ever-increasing levels of protection, and reducing the flexibilities and policy space left open under the TRIPS Agreement. In this situation, the concept of maximum rights or "ceiling rules" which provide for a binding maximum amount of IP protection WTO Members can offer in their national laws gains in importance: It might offer a way to ensure and maintain a balanced approach towards IP protection, and to protect members states' autonomy in preserving public policy goals vis-a-vis pressure exerted against them in bilateral trade negotiations. However, as appealing as the concept may be, it also has potential drawbacks that must be thoroughly explored. This concerns substantive issues - such as the risk that to espouse the principle of maximum rules might reduce instead of enhance member states' flexibilities - as well as institutional and procedural questions - in particular, how this would fit with the current WTO/TRIPS system. The paper will address those issues. In addition, the meaning and possible impact of existing maximum rules will be set forth, and initiatives will be presented which may give the concept of ceilings a broader range of application than to-date.

Comment: Compulsory Licensing of Patented Pharmaceutical Inventions: Evaluating the Options

In this Comment, the author traces the relevant legislative history pertaining to compulsory licensing of patented pharmaceuticals from the TRIPS Agreement of 1994 to the 2003 waiver to, and later proposed amendment of, article 31, which enables poor countries to obtain needed medicines from other countries that possess manufacturing capacity. The Comment then evaluates recent, controversial uses of the relevant legislative machinery as viewed from different critical perspectives. The Comment shows how developing countries seeking access to essential medicines can collaborate in ways that would avoid undermining incentives to innovation and other social costs attributed to compulsory licensing. It ends by defending the legality of recent measures taken to promote public health in developing countries, and by reminding developed countries that unilateral retaliation against such measures is demonstratably illegal under WTO foundational law and jurisprudence.

U.S.-Based Global Intellectual Property Creation: An Analysis

The Patent Cooperation Treaty (PCT), concluded in 1970, offered a means for inventors to safeguard their intellectual property in multiple countries with a single application. This global effort to streamline the process of achieving international intellectual property protection evidences the importance of this protection in today's economy. International intellectual property rights ensure that creators can reap the rewards of their endeavors, encouraging future innovation and, ultimately, economic growth. The PCT patent applications filed in the United States arguably represent some of the most sophisticated inventions developed in this country. Not only does the perceived need for international intellectual property protection indicate that the inventions are characterized by a higher level of sophistication than those submitted only to the United States Patent and Trademark Office (USPTO), but also the costly and time-intensive application process for PCT patents suggests that inventions described in these applications largely have market potential in multiple countries, global visibility, or diverse applications. This report summarizes results of an analysis of this database focusing on its geographic characteristics. It offers an opportunity to understand where this measure indicates that innovation is happening in the United States, which organizations are driving change, and the technical areas that are the focus of U.S. filing.

TRIPS post-2005 and access to new antiretroviral treatments in southern countries: issues and challenges

Until 2005 some developing countries with pharmaceutical manufacturing capacities especially India used the transitional period allowing local manufacturers to produce and sell generic versions of first-generation ART drugs patented in industrialized countries and originally produced and sold at high prices by Western pharmaceutical companies. Thanks to international competition between generic manufacturers and these companies significant price reductions were achieved for the large majority of these drugs. This was a key factor in the implementation and strengthening of access to AIDS treatment in developing countries and a strategic element in the World Health Organization (WHO) 3by5 plan. However with the end of the extended deadline for TRIPS compliance the scenario is likely to change radically. Considering the end of the transitional period which effectively will prohibit the free manufacture of newer and innovative antiretroviral generations to mark a key episode in the history of the fight against AIDS in developing countries this review will provide an overview of the meaning and consequences of this turning point and to present some of the new challenges of the post-2005 period. (excerpt)