International International Intellectual Property Research Articles

Intellectual Property Responsibility: A Manifesto

This opinion is an attempt to provoke a debate about exploring the responsibility narrative of international intellectual property (IP). It aims to offer a lens for interpreting IP norms within the system and outside IP when it interacts with other branches of law. After providing the context, this opinion first engages with the concept of responsibility, followed by examining responsibility in international IP. Then, it explores how access, sustainability, and empowering less developed countries are facets of responsibility that are embedded in the IP system. The opinion, therefore, is a call to develop a fair and responsible IP system.

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.

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.

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.

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 EU and China in International Negotiations on Trade-Related Intellectual Property Rights – Cooperation and Challenges

Abstract In the multilateral forum of the WTO, trade-related intellectual property issues constitute one of the reasons for the dilemma in Doha negotiations. It is interesting to note, however, an increasing convergence between the EU and China’s policies in supporting the improvement of international intellectual property (IP) protection, and these two actors have even formed an alliance to promote stronger protection for the geographical indications. In order to understand the EU’s and China’s standpoint in international IP regulatory cooperation, it is necessary to examine their interaction and proposals in the WTO framework. This examination will provide insight into the issues on which these two major actors are readily able to reach agreement. It will also reveal the issues on which their differences still remain or have gradually narrowed to facilitate a rapprochement of views; accordingly, this paper reviews cooperation between the EU and China in multilateral negotiations on genetic resources and protection of geographical indications. The study will further examine the challenges leading to obstruction of the Doha negotiations.

Economic Nationalism in Intellectual Property Policy and Law

The long-standing battle between economic nationalism and globalism has again taken center stage in geopolitics. This article applies this dichotomy to the law and policy of international intellectual property (IP). Most commentators see IP as a prime example of globalization. The article challenges this view on several levels. In a nutshell, it claims that economic nationalist concerns about domestic industries and economic development lie at the heart of the global IP system. To support this argument, the article summarizes and categorizes IP policies adopted by selected European countries, the European Union, and the U.S. Section I presents three types of inbound IP policies that aim to foster local economic development and innovation. Section II adds three versions of outbound IP policies that, in contrast, target foreign countries and markets. Concluding section III traces a dialectic virtuous circle of economic nationalist motives leading to global legal structures and identifies the function and legal structure of IP as the reason for the resilience and even dominance of economic nationalist motives in international IP politics. IP concerns exclusive private rights that are territorially limited creatures of (supra-)national statutes. These legal structures make up the economic nationalist DNA of IP.

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.

Interest Groups in International Intellectual Property Negotiations

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

Developing Country Coordination in International Intellectual Property Standard-Setting

International intellectual property (IP) standard-setting is becoming more complex and diversified. However, many developing countries are not well prepared to face the challenges arising from this evolution. This is reflected in the lack of coordination amongst them as well as in the inconsistencies in their positions in different fora dealing with IP matters. This paper examines developing country coordination in international IP standard-setting and underlines the need for developing countries to bring coordination at the forefront of their concerns in their participation in international IP rule-making. Developing country coordination in international IP standard-setting encompasses coordination by developing countries at the national level and coordination between developing countries at the international level. Both aspects of coordination are inextricably linked as coalitions of developing countries are most likely to emerge, on a sustained basis, only among countries that have a coherent and coordinated approach to IP policy making at the national level.

Beyond the Text: The Significance of the Anti-Counterfeiting Trade Agreement

The Anti-Counterfeiting Trade Agreement (ACTA) aims to combat the proliferation of counterfeit and pirated goods ‘through enhanced international cooperation and more effective international enforcement’. Despite news reports and academic commentary to the contrary, the first part of this article demonstrates that the finalized version of the ACTA does not meaningfully enhance the international intellectual property (IP) law framework as it relates to international cooperation or international enforcement and therefore does not pose a substantial risk to the public or to domestic sovereignty. This is not to say that the ACTA does not have value; the second part of the article argues that the real significance of the ACTA lies not in its textual obligations but more in the effect it will potentially have as a starting point in multilateral and bilateral trade negotiations, as an alternative forum for IP rulemaking and on the ‘governance’ of international IP more generally.