Intellectual Property and Development: Understanding the Interfaces: Liber amicorum Pedro Roffe

450 Pages·2019·5.818 MB·English

by  Carlos Correa, Xavier Seuba

Carlos Correa · Xavier Seuba Editors
Intellectual
Property and
Development:
Understanding the
Interfaces
Liber amicorum Pedro Roffe
Foreword by Abdulqawi A. Yusuf
Intellectual Property and Development:
Understanding the Interfaces
Carlos Correa Xavier Seuba
(cid:129)
Editors
Intellectual Property
and Development:
Understanding the Interfaces
Liber amicorum Pedro Roffe
Foreword by Abdulqawi A. Yusuf
123
Editors
Carlos Correa Xavier Seuba
Centrefor Interdisciplinary Studies on CentreforInternationalIntellectualProperty
Industrial PropertyandEconomicsLaw Studies (CEIPI)
(CEIDIE) UniversitédeStrasbourg
University of BuenosAires Strasbourg, France
BuenosAires, Argentina
ISBN978-981-13-2855-8 ISBN978-981-13-2856-5 (eBook)
https://doi.org/10.1007/978-981-13-2856-5
LibraryofCongressControlNumber:2018963989
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Foreword
ThetitleofthisbookinhonourofPedroRoffe—withitsfocusonthedevelopment
impact of the interface between intellectual property rights (IPRs), technology
transfer and investment—is most befitting. If we consider the positive impacts on
developmentthatmaybeachievedinthefieldsofintellectualproperty,technology
transferandinvestment,wefindonepersonconstantlyatthecentreofresearchand
advocacyinthisarea:PedroRoffe.Pedro’slifelongworkhasconsistentlysoughtto
place the development and the interests of developing countries at the forefront of
processes related to intellectual property and technology transfer that might have
otherwise excluded them. The creation of conceptual links between the afore-
mentionedfieldslikewiseowesagreatdealtoPedro’sworkoverthepast45years.
Pedro joined the Secretariat of the United Nations Conference on Trade and
Development(UNCTAD)in1972soonaftertheUNCTADIIIsessionwasheldin
Santiago,Chile.Hestartedworkingshortlyafterwardsonthewell-knownreporton
“The Role of the Patent System in the Transfer of Technology to Developing
Countries” (hereinafter “the Report”), published by UNCTAD in partnership with
theWorldIntellectualPropertyOrganization(WIPO)in1975.Thisseminalreport,
which has influenced and informed most of the subsequent international debate on
intellectual property, transfer of technology and development, was very well
receivedinternationally,particularlyindevelopingcountries.Itcalled,amongother
things,fortherevisionoftheinternationalpatentsystem,thepurposeofwhichwas
to be “that of making patent laws and practices capable of effectively comple-
menting other instruments of policy for national development”.
It was with this clarion call by Pedro and the Report’s co-authors that the
international debate on the interface between intellectual property (at the time,
industrial property), technology, transfer and development was launched. But the
Report contained a cautionary statement couched in the following terms:
v
vi Foreword
Theissuesinvolvedinafuturerevisionoftheinternationalpatentsystemarecomplexand
thereforeneedtobeconsideredverycarefully.Itisimportanttoensurethatthemainlines
ofsucharevisionarepursuedwithoutcreatingagreatdealofmisunderstanding,confusion,
uncertaintyandpossiblemajorconflictsofinterpretationofnationallawsandinternational
standards—the very conditions which are highly prejudicial to an orderly acceleration
ofthetransferoftechnologyfromdevelopedtodevelopingcountries.
AlthoughtheReportwasaresultofteamworkandIcannotthereforesayitwith
certainty, I have the feeling that these words were written by Pedro himself. They
are vintage Pedro language. They reflect his pragmatic, problem-solving, case-by-
case approach to international cooperation based on mutual understanding and
compromise. What Pedro and his co-authors cautioned against was nonetheless
broughtaboutbythedevelopedcountriesthroughtheAgreementonTrade-Related
Aspect of Intellectual Property Rights (TRIPS Agreement) of the World Trade
Organization (WTO)—but that is another story to be discussed in some of the
chapters of this book.
Pedrodidnotstopshakingthetreeoftheinternationalindustrialpropertysystem
to find a way of harvesting its fruits for the socio-economic development of
developing countries and to improve the terms of technology transfer to their
enterprises and institutions. His next opus, in the context of UNCTAD’s work,
which would lead to international negotiations on the subject, was a study entitled
“ThePossibilityandFeasibilityofanInternationalCodeofConductonTransferof
Technology”. The study constituted an excellent exposition of the economic, legal
andpublicpolicyreasonsforsuchacodeofconductandtheprocessofdraftingitat
the international level.
It was also on the basis of this ground-breaking study that the United Nations
(UN) convened global negotiations on an International Code of Conduct on the
Transfer of Technology first through an intergovernmental group of experts and
laterthroughaUNconference.Unfortunately,theydidnotleadtoafinalagreement
on a code of conduct and had to be abandoned in 1985. Pedro was at the helm of
those negotiations. He prepared draft texts, proposed compromise formulas,
brainstormed with delegates, forged consensus on many points, failed to resolve
other points—but he always kept faith and confidence in the ultimate usefulness
of the exercise.
I met Pedro through this code exercise, during my participation as a Somali
delegate in the intergovernmental expert meetings of 1978 and 1979. However,
I got to know him much better when, a few years later, I joined his team in
UNCTAD and started working under his guidance on the code negotiations.
For more than 10 years, from the mid-seventies to the late eighties, Pedro was
“Mr. CodeofConduct”.Hewasgenerallyseenasthepointmanoftheeffortsthat
the UN General Assembly called for in 1974, in the context of its Programme of
ActionontheEstablishmentofaNewInternationalEconomicOrder,to“formulate
aninternationalcodeofconductforthetransferoftechnologycorrespondingtothe
needs and conditions prevalent in developing countries”. Rather than the grand
Foreword vii
schemeofa“NewInternationalEconomicOrder”,itwasthespecificissuesrelated
to the interface between industrial property, technology transfer and development
that were the subject of his focus.
Nonetheless, his contribution and advice were not limited to matters related to
the code negotiations. He worked very closely with national governments in
developing countries to assist them with domestic legislation on intellectual
property and transfer of technology geared to their development needs. He also
continuedtopublishextensivelyonintellectualpropertyanddevelopmentissuesto
raise awareness in developing countries on their connectedness.
Thelack ofsuccessonthecodenegotiations didnotcurbPedro’scommitment,
intellectual contributions and enthusiasm in bringing about incremental changes in
the field of intellectual property in favour of development goals and in promoting
balanced and fair solutions to international issues related to IPRs, in general. He
saw opportunities everywhere, even as UNCTAD’s convening power and leader-
ship in international negotiations in the field of international economic relations
startedtowane.Thus,whentheMinisterialDeclarationontheUruguayRoundwas
adopted,soonafterthecollapseofthecodenegotiations,hesawtheopportunityfor
developing countries to make a connection between trade and the IPRs standards
that were proposed. At his behest, we decided, at the UNCTAD Secretariat, to
encourage developing states to put forward proposals that would highlight the
importance of public policy objectives underlying national IPRs systems, the
necessity of recognizing those objectives at the international level, and the need to
specify some basic principles, which could subsequently elucidate the application
ofIPRsstandards.Pedrowasfurtheroftheviewthattheworkdoneduringthecode
negotiationsonrestrictivepracticesinlicensingagreementscouldbeintegratedinto
an eventual TRIPS Agreement.
Pedro’s approach finally paid off when developing countries, after a period of
resistancetotheelaborationofnewsubstantivestandardsintheGeneralAgreement
onTariffsandTrade(GATT)context,decidedtosubmittheirownproposals,which
included some of the principles and objectives originally proposed in the code
negotiationsaswellasalistoffourteenrestrictivepracticesinlicensingagreements
mirroringthoseofthedraftcode.Althoughnotalloftheseproposalsmadeittothe
final text of the TRIPS Agreement, some of the principles and objectives are
reflected in Articles 7 and 8 of the Agreement. Also, Article 40.2 of the TRIPS
Agreement allows members to specify in their legislation licensing practices or
conditionsthatmay,inparticularcases,constituteanabuseofintellectualproperty
rights, and to adopt appropriate measures to prevent or control such practices.
Thus, the influence of the work on the code survived, to a certain extent, the
collapseofthenegotiationsandinspiredsome oftheprovisionsthat wefindtoday
in the TRIPS Agreement. This impact of the code negotiations on subsequent
international discussions on intellectual property, technology transfer and devel-
opment was examined in a work that Pedro and I edited, together with Surendra
Patel, on “International Technology Transfer, The Origins and Aftermath of the
United Nations Negotiations on a Draft Code of Conduct”.
viii Foreword
AfterleavingtheUNCTADSecretariat,PedrojoinedtheInternationalCentrefor
Trade and Sustainable Development (ICTSD), where, for the past fifteen years, he
continued to work on intellectual property and development. Free from the
administrative and bureaucratic responsibilities of a senior UN official, Pedro was
abletofocusonhisintellectualpursuitsandtopublishnumerousworksonmultiple
aspects of intellectual property affecting climate change, free-trade agreements,
transfer of technology, technical standards, health and medicines, sustainable
development and the policy space for development. It was also during this period
that he put together, in collaboration with many experts, what has now become a
classic work in the field, his “Resource Book on TRIPS and Development”.
Similar tothe intergovernmental reports which he initiated or authored whilein
UNCTAD, his publications in ICTSD will undoubtedly have a lasting impact
not only on the global debate on intellectual property, technology transfer and
development,butalsooninnovation,environmentalprotection,healthpoliciesand
climate change.
All those who have worked in the aforementioned fields of intellectual
endeavour are therefore indebted to Pedro for his trail-blazing contributions, from
which we have all benefited and to which future generations of researchers and
scholars on intellectual property will undoubtedly turn for inspiration. He is the
personification of “access”—a concept he often referred to in connection with
technology and innovation—by virtue of his approachability, openness and con-
stantreadinesstosharehisideaswithyoungscholars,researchers,policymakersas
well as a wider public.
Pedro’s “open-source” ideas and conceptualizations regarding the development
dimensionofintellectualproperty,technologytransferandinvestmenthavealways
been available without a licence and have generated over the years abundant col-
laborationamongscholars.ItrustthatPedrowillcontinuetomakehisfuturework
availabletous all, for he knowsnot themeaningof theword“retirement”. That is
whyIamdelightedtowritethisForewordforabookinhonourofPedroRoffe—a
book which I consider to be both timely and topical in relation to the changes that
havetakenplaceinthelastfourdecadesinintellectualproperty,technologytransfer
and investment.
The Hague, Netherlands Abdulqawi A. Yusuf
President, International Court of Justice
Contents
Part I International Trade and Technology Transfer
PolicySpaceinIntellectualPropertyRightsandTechnologyTransfer:
A New Economic Research Agenda . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Keith E. Maskus
Legislative and Regulatory Takings of Intellectual Property:
Early Stage Intervention Against a New Jurisprudential Virus . . . . . . . 21
Frederick M. Abbott
Intellectual Property and Technology Transfer:
Why We Need a New Agenda . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
Padmashree Gehl Sampath
Intellectual Property as a Financial Contribution Under the WTO
Subsidies Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
Miguel Ángel Elizalde Carranza
Four Decades of Technology Transfer, Trade and Intellectual
Property. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81
Xavier Seuba and Mariano Genovesi
Part II Development and Public Policy
Development Bridge Over Troubled Intellectual Property Water . . . . . 97
Peter K. Yu
What Role for Intellectual Property in Industrial Development? . . . . . . 119
Carsten Fink and Julio Raffo
WIPO’s Assistance to Developing Countries: The Evolution
of Debate and Current Challenges . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 137
Carolyn Deere Birkbeck
ix
x Contents
The Twenty-First Century Intellectual Property Office . . . . . . . . . . . . . 181
Maximiliano Santa Cruz and Catalina Olivos
Least-Developed Countries, Transfer of Technology
and the TRIPS Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 199
Jayashree Watal and Leticia Caminero
Warner Lambert v Actavis: The Tricky Task of Examining Patent
Infringement in New Medical Use Cases . . . . . . . . . . . . . . . . . . . . . . . . 229
Christoph Spennemann
Part III Traditional Knowledge and Genetic Resources
Traditional Knowledge and the Public Domain in Intellectual
Property. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 249
Ruth L. Okediji
The Globalisation of Plant Variety Protection: Are Developing
Countries Still Policy Takers? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 277
Graham Dutfield
Why the Nagoya Protocol to the Convention on Biological Diversity
Matters to Science and Industry Everywhere. . . . . . . . . . . . . . . . . . . . . 295
Jerome H. Reichman
The Private International Law of Access and Benefit-Sharing
Contracts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 315
Henning Grosse Ruse-Khan
New Challenges for the Nagoya Protocol: Diverging
Implementation Regimes for Access and Benefit-Sharing. . . . . . . . . . . . 377
Daniel F. Robinson and Johanna von Braun
Marine Genetic Resources Within National Jurisdiction: Flagging
Implications for Access and Benefit Sharing and Analysing Patent
Trends . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 405
David Vivas Eugui and Hartmut Meyer