Global Intellectual Property Laws (patents) & Biopolitics

This engaging and accessible study looks at the origins, evolution, purpose, and limitations of intellectual property. Detailing how intellectual property affects industry, politics, cultural expression, and medical research, Aram Sinnreich takes a multidisciplinary approach to uncover what’s behind the current debates and what the future holds for copyrights, patents, and trademarks.

Based on the notion that intellectual property law is not merely a property right but also a mechanism of cultural and economic regulation with significant consequences for democratic institutions, global businesses, arts, and the sciences, Sinnreich draws on media studies, communications, law, economics, and cultural studies as he provides a blueprint for understanding intellectual property rights and underlines the important and pervasive role that they play in everyone’s lives.

Publication Date (Yale Press): May, 2019.
Available for pre-order on Amazon: http://bit.ly/sinnIP

Trata del conflicto crucial por la apropiación y la regulación de la biodiversidad. En vista de la importancia y la urgencia del problema, el libro de
la profesora brasilera Andressa Caldas que presento en estas líneas
constituye un aporte muy oportuno a los debates actuales y futuros
sobre el tema. Con una mezcla excepcional de rigor analítico jurídico, agudeza política y sensibilidad a los conflictos sociales, la autora
examina el estado del derecho de la propiedad intelectual sobre los
recursos biológicos, así como sus orígenes y efectos políticos y económicos. En un campo donde las normas y los debates son muy recientes y están, literalmente, cambiando día a día, y donde las
investigaciones académicas son escasas, este libro constituye un
análisis pionero que ofrece al lector una introducción sólida al tema
de la regulación jurídica del conocimiento tradicional.

This paper deals with the registrability of non-conventional marks after the EU reform of trade marks and some technological developments, including the Internet of Things (IoT). Even if olfactory marks (scents or smells) are the chosen prism, most considerations apply also to other non-conventional marks, such as holograms, movements, and tastes. In the UK, whereas in theory olfactory trade marks can be registered, there have not been successful applications since the EU Court of Justice's decision in Ralf Sieckmann v Deutsches Patent- und Markenamt. This paper suggests that scents may be more easily registered in the near future as a consequence of the EU reform of trade marks and of technological innovation. The impact of Brexit is critically assessed and the implementation of the EU reform is foreseen.
The yet-to-be-transposed Trade Marks Directive introduces a new definition of trade marks where the graphic representation of the mark is no longer required. Under the new regime, those who want to register a smell will only need to represent it ‘in a manner which enables the competent authorities and the public to determine the clear and precise subject matter of the protection afforded to its proprietor’ (art 3(b)). Some difficulties may remain because the Trade Marks Directive incorporated the so-called Sieckmann criteria, that the (then graphical) representation must be ‘clear, precise, self-contained, easily accessible, intelligible, durable and objective’ (recital 13). However, even not going as far as arguing that ‘the amendments will abolish the Sieckmann judgement’ (Sahin 2016, 513), it is not excluded that the seven criteria may be interpreted differently in the future, for example as meaning that a combination of description, chemical formula and sample may meet the new requirements for registration. Indeed, with the new definition of trade marks there is a shift from the ‘how’ to the ‘who’. It is immaterial how the trade mark is represented (whether graphically or otherwise), as long as the competent authorities and the public can determine the subject matter of the protection. Arguably, the said combination of description, chemical formula, and sample may suffice from the authorities’ perspective. When it comes to the public, it is likely that this requirement will be absorbed by the distinctiveness. An unusual scent used consistently on a range of products or services of a single undertaking and accompanied by heavy advertising would easily put the public in the position to determine the subject matter of the protection, especially if distinctiveness is acquired through use; thus, the requirement could be easily made out. One could foresee a return to the case law ante Sieckmann that valued the customers’ viewpoint and stated, for instance, that an olfactory mark described as freshly cut grass will be recognised immediately by anyone, reminding ‘of spring, or summer, manicured lawns or playing fields, or other such pleasant experiences’ (Senta Aromatic [14]). The customers’ scent-related power of imagination cannot be underestimated. A number of scents can evoke clear memories and feelings.

Since the mapping of the human genome and the technical innovations in the field of biotechnology, patent law has gone through great controversies. Protection is required for an investor to make an investment but how broad should the given protection be? Whether the invention is a micro-organism capable of dissolving crude oil, or the gene of a soya plant, the genetic engineering required for their production entails vast amounts of capital. The policy in that respect is tailored by legislative acts and judicial decisions, ensuring a fair balance between the interests of patent right holders and third parties. However, the policy differs from jurisdiction to jurisdiction, thus creating inconsistencies with regards to the given protection to the same invention, and as a result this could deter innovation and promote stagnation. The most active actors shaping the patent policy on an international level are the patent offices of the United States of America, Japan and the European Patent Organization. These three patent offices have set up a cooperation programme in order to promote and improve efficiency with regards to their patent policies on a global scale. However, recent judicial developments have shown that the policy in respect to the field of biotechnology differs between the patent regimes of the United States of America and the two-layer system of the European Patent Organisation/the European Union.

CULTURA LIVRE
Como a Grande Mídia Usa a Tecnologia e a Lei Para
Bloquear a Cultura e Controlar a Criatividade

Lawrence Lessig

Trama
Presidentes
André Szajman
João Marcello Bôscoli
Trama Universitário
Coordenadora Geral
Juliana Nolasco
Agência de Notícias Trama Universitário
Editor-chefe
Alexandre Matias
Editores
Dan Muscalu
Fabiana de Carvalho
Repórteres
Ana Cecília Chiesi
Tatiana K. Dias

Obs: todo o processo editorial do presente livro foi realizado em menos de dois meses, o que é um feito singular. O coordenador da edição gostaria de agradecer ao empenho de todos os colaboradores.

ISBN: 85-89362-52-3

COORDENADOR DA EDIÇÃO:
Arthur Dantas
TRADUTORES:
Rodolfo S. Filho
Cardoso
Joaquim Toledo Jr.
Isabela Vecchi Alzuguir
Mariana Bandarra
Alexandre Boide
PREPARADOR DE TEXTO:
Mateus Potumati
PROJETO GRÁFICO / DIAGRAMAÇÃO
Fritz von Runte
CAPA INSPIRADA NA EDIÇÃO ORIGINAL
Fritz von Runte

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What is the relationship between Foucault’s concept of biopower and Deleuze’s concept of control? Despite the similarities between these two concepts, there is not a single scholarly article that solely thematizes this question, nor a comparative survey of the answers given so far. This essay aims to fill this lacuna. Drawing on Deleuze's unpublished and untranslated lectures on Foucault, the original thesis of this essay is thus that biopower and control are the same concept of power in both content and form.

Increasingly, a range of 'things' (e.g. infrastructure, data, knowledge, bodies, etc.) are configured and/or reconfigured as assets, or capitalized property. Accumulation strategies have changed as a result of this assetization process, which characterizes a particular form of technoscientific capitalism. Rather than entrepreneurial strategies based on commodity production, technoscientific capitalism is increasingly underpinned by rentiership, or the appropriation of value through ownership rights (e.g. intellectual property), monopoly conditions, and regulatory or market devices and practices (e.g. investment dispute courts, exclusivity agreements, etc.). While rentiership and rent-seeking are often presented as negative phenomena (e.g. distorting markets, unearned income) in both neoclassical and Marxist literatures – and much in-between – it is my intention in this paper to unpack rentiership as an increasingly constitutive political-economic process underpinning technoscientific capitalism. Rather than being framed as a problematic 'side-effect' of capitalism, I argue that rentiership can help us to understand how different forms of value extraction are constituted by and come to constitute different forms of technoscience. This has significant analytical, political, and normative implications for understanding the relationship between science, innovation, and business (e.g. how do rentier rationales configure research agendas, how does innovation enable rentiership, what are the consequences for social equity, etc.).

Traditional knowledge can be protected, to some extent, under various intellectual property laws. However, for the most part, there is no effective international legal protection for this subject matter. This has led to proposals for a sui generis regime to protect traditional knowledge. The precise contours of the right are yet to be determined, but a sui generis right could include perpetual protection. It could also result in protection for historical communal works and for knowledge that may be useful but that is not inventive according to the standards of intellectual property law. Developing countries have been more supportive of an international traditional knowledge right than developed countries. At the same time, developing countries have been critical of the impact of intellectual property rights on social issues such as access to medicines and access to educational materials. In light of developing country concerns about the negative effects of strong global intellectual property rights, this paper uses a development-focused, instrumentalist approach to assess the implications of a sui generis traditional knowledge right. It concludes that some of the measures sought may not achieve the desired outcome. Although intellectual property can play a role in protecting traditional knowledge, a sui generis intellectual property style right may hinder the equity-oriented goals of some traditional knowledge communities.

This chapter describes and problematizes the specific turn to assetization that patents have taken, more specifically, the transfiguration of patents into speculative financial assets. Whereas intellectual property rights are commonly presumed to be key assets in the so-called knowledge economy, the mechanisms by which they are transformed and performed as assets are less examined. This chapter takes a closer look into the ways in which patents are turned into assets by practices and specific knowledge techniques both in and outside of law. With an emphasis on the processes of legal and financial abstractions, it identifies and discusses the modes and practices in which patents act and are transacted as assets that go beyond practices of commodification and monopoly rent-seeking: in patent portfolios, as real options and as instruments of financial hedging. Whereas law has enabled the creation of a market in patents as assets, the argument is that it has now become a financialized market object itself.

This article sheds light on the pressing issue of software patents by giving an account of the approaches followed in Europe, the US and India. The occasion of this study is the adoption in 2016 of the final version of the Indian guidelines on the examination of computer-related inventions, which have been surprisingly overlooked in the legal literature. The main idea is that the Internet of Things will lead to a dramatic increase of applications for software patents and if examiners, courts, and legislators are not careful, there is a concrete risk of a surreptitious generalised grant of patents for computer programs as such (in Europe) and for abstract ideas without inventive concept (in the US). The clarity provided by the Indian guidelines, following a lively public debate, can constitute good practice that Europe and the US should take into account. Conversely, the sea of patent software looks very stormy in the US, where, after some reversals of the leading case Alice Corp v CLS Bank International, there seems to be the risk of swelling the ranks of speculative schemers who make it their business to watch the advancing wave of improvement, and gather its foam in the form of patented monopolies. Some good news, however, comes from a dissenting opinion that innovatively suggests bringing free speech into the reasoning on patents.

PLEASE CITE AS: Guido NOTO LA DIEGA, Software patents and the Internet of Things in Europe, the United States, and India, in European Intellectual Property Review, 2017, 39(3), 173-184.

Individuals in low-income countries ("LICs") often lack access to appropriate medicines. The multidisciplinary nature of this problem requires a holistic approach. Whereas, other writings on the topic tend to focus on one or a small number of issues, often from the perspective of a single discipline, this paper seeks to consider the major issues from a multidisciplinary perspective. It first considers mechanisms for improving the availability of medicines in LICs, through grants, prizes, treaties, advance market commitments, priority review and product development partnerships to incentivize and fund R&D for neglected diseases. The paper then assesses mechanisms for improving affordability of medicines in LICs, such as differential pricing mechanisms, monopsonies, patent law flexibilities and human rights obligations. Next, the paper reviews mechanisms for improving the efficacy of medicines in LICs, including authentication, criminalization, international and national enforcement and communication and education. Finally, the paper examines mechanisms for improving the obtainability of medicines in LICs, through low-cost intervention, task-shifting, efficient regulation, grassroots service provision and education. The paper concludes by identifying areas warranting further research. The multidisciplinary nature of the problem of access to medicines in LICs requires a holistic approach, especially one that identifies and examines the areas where cross-disciplinary collaboration is valuable. The need for such a discussion was the primary reason for convening the Roundtable. The Roundtable proceedings included presentations on all participants' areas of expertize, reflections across

A Iniciativa BRICS para Estudos Agrários Críticos (Bicas) é uma rede de pesquisa que combina estudos e engajamento sobre Brasil, Rússia, Índia, China, África do Sul. O principal objetivo da Bicas é promover pesquisas e intercâmbios sobre mudanças no campo, a partir da cooperação e competição dos estados e investimentos governamentais, resultando não só em desenvolvimento e apoio em políticas públicas de agroinvestimentos, mas em transformações agrárias e ambientais, conflitos e (in)segurança alimentar interna e regional nos BRICS. As reflexões deste livro têm como base trabalhos e análises da VI Conferência sobre Desenvolvimento e transformações agrárias: BRICS, competição e cooperação no Sul Global, realizada na Universidade de Brasília (UnB), em 2018.

Currently, the enforcement of a patent that is registered in several countries involves the risk of getting different and conflicting decisions from the national courts. In 2013, 25 European countries entered in an agreement that aims to homogenise the patent system by creating the European patent with unitary effect and a Unified Patent Court (UPC). This article focuses on the UPC, which aims to have a single court proceeding for cross-border patent conflicts. Does the UPC system represent an advantage compared to the current litigation system? The paper argues that it does and explores what it considers to be the two main advantages of a UPC over the current system of cross-border litigation of patents: the ability to drag several conflicts to a single procedure and the neutrality of the decision makers. These advantages are consequently compared to the characteristics of arbitration. Then, an explanation is provided with regards to how the UPC system is going to work in terms of jurisdiction, preliminary injunctions , the choice of law and enforcement of decisions, comparing those same procedural aspects to arbitration. The article finds that arbitration involves many of the same advantages (as compared to the UPC) and that the procedural issues studied in both means are, so too, similar. Therefore, arbitration represents a viable alternative to the UPC when it comes to reducing the risks in solving cross-border patent conflicts.

Traditional Knowledge (TK) is a central component for the daily life of millions of people in developing countries, including India where access to “modern” health care services and medicine is limited due to economic and cultural constraints. Some TK is codified, that is, formalized in some way (eg Ayurveda) however, a great part of it is non-codified, such as, “folk”, “tribal” or “indigenous” medicine which is based on traditional beliefs, norms and practices accumulated during centuries old experiences of trial and error, and passed to successive generations through oral tradition. The protection under Intellectual Property Rights (IPRs) of traditional and indigenous knowledge has received growing attention since the adoption of the Convention on Biological Diversity (CBD) in 1992. However, the concept of Protection in case of TK is understood and interpreted in different ways by different groups; hence there exist two schools of thought-as per one belief protection essentially means to exclude the unauthorized use by third parties; whereas others regard protection as a tool to preserve traditional knowledge from uses that may erode it or negatively affect the life or culture of the communities who are in possession of such knowledge and have developed / applied it.

Scholars in science and technology studies (STS) – and no doubt other fields – have increasingly drawn on Michel Foucault's concept of biopolitics to theorize a variety of new 'bio-concepts'. While there might be some theoretical value in such exercises, many of these bio-concepts have simply replaced more rigorous – and therefore time-consuming – analytical work. This article provides a (sympathetic) critique of these various bio-concepts, especially as they are applied to the emerging 'bio-economy'. In so doing, the article seeks to show that the analysis of the bio-economy could be better framed as a political economy of nothing. This has several implications for science education, which are raised in the article.

Este trabajo trata sobre los desarrollos biotecnológicos susceptibles ser protegidos, principalmente a través del sistema de patentes en Argentina, EE.UU y Europa. Es un trabajo que integra conocimientos científico - tecnológicos y derecho de patentes, mostrando los diferentes requerimientos legales para la protección, ventajas y desventajas.

The law of patents in India is governed by the patent Act 1970 as
amended by the patent Act 1990. A bill named patent bill 1999 which
had proposed substantial changes in the law was introduced in the
parliament  in  December  1999,  and  was  passed  as  the  patent  Act
2002.A  patent  is  monopoly  right  granted  to  a  person  who  has
invented a new and useful or an improvement of an existing article or
a new process of making an article. After the expiry of the duration
of patent, anybody can make use of the invention. A patent is a form
of industrial property or as it is now called intellectual property. The
owner of the patent can sell this property. A patent being a creation
of statute is territorial in extent. A patent granted in one stated cannot
be enforced in another state unless the invention concerned is also
patented in that state. A patent is not granted for an idea or principal
as such, but for some  article or the process of  making some article
applying the idea.
The object of granting a patent is to encourage and develop new
technology and industry. An inventor may disclose the new invention
only  if  he  is  rewarded;  otherwise  he  may  work  it  secretly.  In
consideration  of  the  grant  of  monopoly  for  a  limited  period,  the
inventor discloses the details of the new invention and the method
working it so that after the expiry of monopoly period others can use
the invention or improve upon it.

Applying the Roman Catholic Church's set of moral principles on social concerns called Catholic social teaching (CST) and utilizing some secondary data and scientific research literature, this article examines the morality of India and South Africa's request to the World Trade Organization (WTO) to temporarily suspend the property rights and patents of top pharmaceutical companies to their vaccines to allow low-income countries to locally manufacture them to save the lives of the poor during the current pandemic. Applying the theological method of "See-Judge-and-Act, this article argues that the suspension of patents for COVID vaccines is morally justifiable in the light of Catholic social teaching's (CST) principles on the universal destination of earth goods, the common good, and preferential option for the poor. It recommends that Catholics and Christians must join this crusade for the suspension of patents as part of their spirituality of social transformation.

FROM THE WHITE HOUSE to the World Trade Organization (WTO), heated debates have flared up around the compulsory licensing of COVID-19 vaccine technologies, producing a flurry of op-eds in all of the major US newspapers. Should patent protections, these op-eds ask, be temporarily relaxed to enable developing countries to produce and distribute cheaper shots to ensure timely global immunization? Can compulsory licenses actually achieve that goal, or would the efforts of developing countries be thwarted by other constraints, like limited production capacity, equipment, and skills? Conversely, would the granting of such licenses stymie medical innovation?
These exchanges provide a window onto today’s patent politics and the chasm between the financial interests of the Global North and the health needs of the Global South. They also highlight the rhetorical dimensions of health policy discourse as it plays out in the media, not through scholarly articles and data sets but in compact op-eds.

Diversity of expressions, especially within media, is arguably crucial for forming cognizant individual and collective identities and for building informed individual and public opinions. The cross-border exchange of goods and services can increase offerings within a state and thereby help generate a diverse environment. Increasing borderless and digitalized markets tend to develop mass markets, increase the integration of enterprises and so make goods and services readily accessible to a broad audience. While this does improve knowledge transfer and raises economic expectations, the increasingly small differentiation between goods and services in these markets poses a threat to their diversity and, therefore, to the diversity of expressions. Within this context, I argue that two identified regulatory deficits of the current global economic order (that is the absence of an international regulatory framework for competition coupled with strong copyright protection) disproportionately strengthen oligopolies in their market positions and insufficiently account for small market players and market participants of economically weak developed countries. Such displacement is detrimental to the diversity of expressions. I assert that erasing these regulatory deficits (namely by reducing barriers to international trade created by private operators and remediating the balance of interests for granting exclusive rights to incentivize the evolvement of creativity and innovation) would serve as corrections to the principles of free trade and reduce trade distortions caused by cross border active operators who dominate the culture and media industry. This would contribute to the creation of an environment more conducive to the diversity of expressions.

This text discusses the patenting and propertization of biological resources and traditional knowledge. This comes in many guises: some talk of ‘biopiracy’ while others prefer the term ‘bioprospecting’ or ‘biodiscovery’. The choice of words between ‘biopiracy’ and ‘bioprospecting’ reflects different ways to conduct and regulate patenting of biological resources: while the former is an act of exploitation the latter attempts to establish procedures that ensure an equal sharing of the benefits created. But these different discourses also reflect fundamentally different approaches to the phenomenon: if much of the opposition against biopiracy objects to the propertizing of biological resources and traditional knowledge as such, then the bioprospecting discourse accepts this moment of propertization as long as it is undertaken in a fair and equitable manner. By looking at the discourses over biopiracy and bioprospecting this chapter will discuss how different approaches to biopatents also reflect different understandings of property and how the negotiations over biopiracy and bioprospecting reflect contestation over the limits of propertization.

In Turkey, most university administrators and academic staff members are not yet fully aware of intellectual property rights (IPRs). Researchers often have difficulty in licensing opportunities that can provide additional revenue streams due to the lack of either strategic policies set by the administration or a dedicated technology transfer (or licensing) office (TTO). This paper attempts to shed some light
on the relationship between intellectual property rights and licensing awareness in Turkish universities as well as how this is affected by the lack of TTOs. Semi-structured exploratory interviews were conducted with 45 researchers in two different faculties (Medicine and Engineering). Results show that most of the participants, including a higher-than-expected percentage from the Faculty of Engineering,
were not aware of the importance of the technology that they had developed in terms of licensing and royalties that they could earn. In conclusion, it can be said that universities in Turkey have to undergo a policy change regarding managerial issues, especially with regards to Technology Transfer Offices. Increasing the visibility of technology transfer options and agreements, as well as further research on this topic, is recommended.

This contribution to the IMO-IMLI Comprehensive Study on Effective and Sustainable Global Ocean Governance addresses the following key questions: Is there a place for intellectual property (IP) considerations in regard to global ocean governance? And if so, which role should the World Intellectual Property Organization (WIPO) play, as the competent UN agency responsible for the development of a balanced and effective international IP system, in strengthening the contribution of IP to the global governance of oceans, in line with Sustainable Development Goals 14 (Life below water)?

Suggested Citation: Chiarolla, Claudio, The Work of the World Intellectual Property Organization (WIPO) and Its Possible Relevance for Global Ocean Governance (December 1, 2016). In D.J. ATTARD & M. FITZMAURICE (eds.) "Comprehensive study on effective and sustainable global ocean governance: UN specialized agencies and global ocean governance", IMO (International Maritime Organization)/IMLI (International Maritime Law Institute) research report to the Nippon Foundation, 2016.

The obligation to work a patent in the patent granting country contributes to a variety of public policy goals such as technology transfer resulting in narrowing the deep North-South gap in development levels. With the advent of the TRIPS Agreement, pre-existing rights of country members to continue to treat non-working as an abuse has turned into a controversial and divisive debate. There are two competing views concerning local working of patents. On the one hand, TRIPS enthusiasts and MNCs articulate that article 27.1 of the TRIPS ban working obligations of patents in the granting country. On the other hand, unwilling partners of the TRIPS, mostly developing countries, continue to treat local working obligations in their national laws. The study analyses origin of the local working requirement in the patent system, negotiating history, flexibilities and implications of the provisions related to local working requirements in the TRIPS; from developing countries' perspective in general, and India in particular; to interpret it to advance its own public policy goals. The paper establishes that the national laws of the WTO member countries containing local working obligations and relatively broad powers for granting compulsory licence are not in contravention of the TRIPS.