INTELLECTUAL PROPERTY RIGHTS IN BILATERAL AND REGIONAL TRADE AGREEMENTS

Transcription

1 INTELLECTUAL PROPERTY RIGHTS IN BILATERAL AND REGIONAL TRADE AGREEMENTS TRADE, INVESTMENT AND INNOVATION DIVISION Teemu Alexander Puutio Luca Parisotto 11 March 2016

2 Observations: the Role of the Multilateral Framework Part 1 Part 2 Part 3 Part 4

3 Observations: the Role of the Multilateral Framework TRIPS contains not only minimum standards, but also flexibilities and limits to IP protection (ceilings). Art.7 & 8 TRIPS express this balance and guide TRIPS interpretation Bilateral and regional treaties amongst WTO Members addressing IP are inter-se modifications of the WTO/TRIPS framework As such, they may not derogate from TRIPS rules which are crucial for giving effect to the object & purpose of TRIPS. Thus, flexibilities crucial for the balance which Article 7 establishes should not be restricted. 3

4 TRIPS Article 7 & 8 Article 7 Objectives The protection and enforcement of intellectual property rights should contribute to the promotion of technological innovation and to the transfer and dissemination of technology, to the mutual advantage of producers and users of technological knowledge and in a manner conducive to social and economic welfare, and to a balance of rights and obligations. Article 8 Principles 1. Members may, in formulating or amending their laws and regulations, adopt measures necessary to protect public health and nutrition, and to promote the public interest in sectors of vital importance to their socio-economic and technological development, provided that such measures are consistent with the provisions of this Agreement 2. Appropriate measures, provided that they are consistent with the provisions of this Agreement, may be needed to prevent the abuse of intellectual property rights by right holders or the resort to practices which unreasonably restrain trade or adversely affect the international transfer of technology 4

5 IPRs in FTAs Index 2016 Overview Part 1 Part 2 Part 3 Part 4

6 The IPRs in FTAs Index Caveat! This is not a review of the country s IPR laws We therefore cannot say the extent an agreement may surpass TRIPS or any existing domestic laws Calculated for the 80 agreements that include IPR provisions Scaled to range from 0 to 100 Based on tallying points for the presence of provisions concerning: Cooperation Reaffirming international obligations WTO coverage Commitments to technology transfer and access to technology Competition and consumer protection Coverage of the different types of IPR (1-3 scale) Enforcement 6

7 Proliferation of IPR Inclusive Agreements

8 Introduced by advanced economies Top Asia-Pacific Countries Number of IPR inclusive Agreements Turkey 21 Singapore 15 Japan 12 Korea, Rep.of 9 Malaysia 8 New Zealand 7 Australia 6 China 6 Thailand 6 Brunei Darussalam 5 Taiwan, POC 5 India 4 Indonesia 4 Lao PDR 4 Philippines 4 Viet Nam 4 Cambodia 3 Hong Kong, China 3 Kazakhstan 3 Myanmar 3 Top Partners Number of IPR inclusive Agreements Chile 7 EFTA 4 Peru 4 United States 4 EU 2 Total 78

9 Highest and Lowest rated agreements

10 Distribution of Index scores 70 Agreement reaffirms TRIPS Agreement does not reaffirm TRIPS

11 Global Innovation Index (2014) More innovative countries sign more comprehensive agreements Correlation between mean IPR index and Global Innovation Index by country Switzerland United States of America Singapore EFTA Hong Kong (China) Israel Korea, Rep. New Zealand Australia y = x R² = 0.35 Japan China Malaysia EU Mauritius Croatia Moldova, Rep. Russian Federation Thailand Romania Turkey Panama Belarus Montenegro Serbia Mexico Ukraine Viet Nam Jordan Georgia Kazakhstan India Peru Morocco Brunei Darussalam Indonesia Tunisia Albania Guatemala Azerbaijan Philippines Cambodia Kyrgyzstan Iran, Islamic Rep. Uzbekistan Tajikistan Pakistan Myanmar Chile Costa Rica Nicaragua Mean IPR Index 11

12 Ginarte Park IPR Index (2010) A reflection of domestic policy? 5 Correlation between mean IPR index and Ginarte-Park IPR protection index Chile Japan United States of America Singapore Korea, Rep. China EFTA Israel Romania Ukraine Turkey Philippines Hong Kong (China) India Mexico Taiwan, POC Russian Federation New Zealand Malaysia Morocco Guatemala Peru Viet Nam Panama Jordan Tunisia Thailand Egypt Indonesia Costa Rica EU Australia Nicaragua y = 0.029x R² = Switzerland Mauritius Iran, Islamic Rep. Pakistan Syria Mean IPR Index 12

13 Top participants and partners Number of IPR inclusive Agreements Medicines and Medical Devices Committee. Standard deviation Overall Index Top Asia-Pacific Countries Mean Overall Minimum Maximum Index Overall Index Overall Index Turkey Singapore Japan Korea, Rep.of Malaysia New Zealand Australia China Thailand Brunei Darussalam Taiwan, POC India Indonesia Lao PDR Number of IPR inclusive Agreements Standard deviation Overall Index Top Partners Mean Overall Minimum Maximum Index Overall Index Overall Index Chile EFTA Peru United States EU Switzerland Total

14 Index value Agreements involving developed countries are more comprehensive 70 Distribution of IPR Index by agreement member s status Australia - U.S. TPP Mean + Std. Dev China - Chile Mean Mean Std. Dev. 0 Min Developing countries Developed countries Developing and developed countries 14

15 IPR Index value Ratcheting up? Mean, Minimum, and Maximum IPR Index per year Max Mean No. Agr Min 15

16 IPR Index value Or business as usual? Mean IPR index per year and member status 70 Yearly Mean Index (Developing countries) Yearly Mean Index (Developed and Developing countries) Yearly Mean Index (Developed countries) No. Developing Agr No. Developed Agr No. Developed and Developing Agr

17 A means to complement multilateral agreements

18 IPRs in FTAs Index 2016 Focusing on patents Part 1 Part 2 Part 3 Part 4

19 Patent Index Constructed in a similar manner as the IPR index Covers: Specific pharmaceutical provisions Compulsory licensing Exceptions to patent rights Patentability criteria Test data exemption Patent linkage Term extensions Patenting period Security exemptions Parallel importing Border measures Novelty grace period 19

20 Example of provisions related to patents Score of 1: New Zealand China Score of 2: Japan Philippines 20

21 Examples of provisions related to patents Score of 3: EU Korea, Rep. 21

22 Mean Patent Index Patent index also rising Mean Patent index per year

23 Patent Index More comprehensive agreements cover patents more comprehensively 120 Correlation between IPR index and Patent index 100 AUSTRALIA-US KOREA-US 80 US-SINGAPORE EFTA-KOREA JAPAN-THAILAND EFTA-SINGAPORE US-LAO EU-KOREA TURKEY-EFTA TURKEY-EU TRIPS NICARAGUA-TAIWAN,POC CHINA-SWITZERLAND EFTA-HONG KONG, China MALAYSIA-AUSTRALIA AUSTRALIA-CHILE JAPAN-VIET NAM JAPAN-SWITZERLAND TPP JAPAN-INDIA JAPAN-INDONESIA 20 0 KOREA-SINGAPORE JAPAN-PERU ASEAN-KOREA JAPAN-MALAYSIA CHILE - HONG KONG, CHINA KOREA-CHILE ASEAN-AUSTRALIA-NEW ZEALAND COSTA RICA-CHINA NEW ZEALAND-MALAYSIA NEW ZEALAND-CHINA JAPAN-CHILE JAPAN-SINGAPORE TRANS-PACIFIC SEPA IPR Index 23

24 Patent specific clauses

25 Health-Relevant Provisions? Medicines and Medical Devices Committee. 25

26 Example of compulsory licensing In the Investment Chapter of Australia US Agreement Most agreements follow exactly this structure 26

27 Example of Test data exemption From Japan Switzerland agreement 27

28 Example of novelty grace period Australia Malaysia Article Patents 1. Subject to the exceptions set out in Article 27 of the TRIPS Agreement, each Party shall make patents available for any invention, whether a product or process, in all fields of technology, provided that the invention is new, involves an inventive step, and is capable of industrial application Each Party shall disregard information contained in public disclosures used to determine if an invention is novel or has an inventive step if the public disclosure: (a) (b) was made or authorised by, or derived from, the patent applicant, and occurs within 12 months prior to the date of filing of the application in the territory of the Party. 3. A Party may provide limited exceptions to the exclusive rights conferred by a patent, provided that such exceptions do not unreasonably conflict with a normal exploitation of the patent and do not unreasonably prejudice the legitimate interests of the patent owner, taking account of the legitimate interests of third parties. 4. Nothing in this Article will limit the scope of exceptions to patentability available in each Party s laws and regulations at the time that this Agreement enters into force. Article Exceptions to Copyright Each Party shall confine limitations or exceptions to the exclusive rights of copyright 28

29 any infringement proceeding, place on the defendant the burden of establishing that the allegedly infringing product was made by a process other than the patented process in one or more of the following situations: Example of term extension (a) the product obtained by the patented process is new; or (b) a substantial likelihood exists that the allegedly infringing product was made by the process and the patent owner has been unable through reasonable efforts to determine the process actually used. US Lao PDR In the gathering and evaluation of evidence, the legitimate interests of the defendant in protecting its trade secrets shall be taken into account. 10. Each Party shall provide a term of protection for patents that shall not end before the expiration of a period of twenty years counted from the date of filing. A Party may extend the term of patent protection, in appropriate cases, to compensate for delays caused by regulatory approval processes. 29

30 Example of Pharma.-specific provisions Korea US These provisions are only present in developed developed agreements Reimbursement by market means (FRAND), transparency of government regulation, marketing, ethical business practices, Medicines and Medical Devices Committee. 30

31 Setting the stage for discussions Part 1 Part 2 Part 3 Part 4

32 Observations and Problems associated with FTA IP Provisions IP as a Trade-off: 1. concessions driven by export interest do not always lead to a mutually beneficial regulation of IP 2. Trade preferences obtained may be eroded as soon as similar or better preferences are granted to other countries Increasing Comprehensiveness erodes Policy Space: 1. IP rules become increasingly comprehensive and prescriptive, transplanting detailed rules from the IPdemanding country 2. As treaty obligations, these rules are almost cast in stone with little options to adapt to changing domestic needs Lack of Transparency, Inclusiveness & Equal Participation: These deficits cannot be corrected in implementation processes if detailed rules leave no flexibility for a tailored implementation 32

33 Recommendations by Dr. Grosse Ruse-Khan Negotiation Mandate & Process: 1. Countries facing IP demands should adopt a proactive agenda on IP, based on input from all stakeholders. 2. No country should demand or agree to IP provisions which have not been subject to a public negotiation process where all stakeholders have an opportunity for review and comment. The negotiated Outcome: 1. TRIPS-plus rules should still allow for policy space, respect core TRIPS flexibilities and all other int. rules applicable between the parties. 2. Agreements should contain review clauses to asses the impact of IP rules and an option for renegotiating IP provisions in light of an impact assessment. 33

34 Recommendations by Dr. Grosse Ruse-Khan Interpretation and Implementation: 1. All other applicable int. law forms the interpretative context. 2. Interpretation should be in light of TRIPS balancing objectives. TRIPS-plus rules should be constructed to allow for sufficient policy space to implement this balance. When implementing them, states have the right to draft appropriate exceptions and limitations (E&Ls) 3. The notion of IP protection and enforcement encompasses also E&Ls and other balancing rules. This allows for a wider understanding of MFN: Countries facing IP demands should claim concessions regarding E&Ls secured by other (similar) countries. 4. IP-demanding countries should not use unilateral assessments of compliance; nor should they unilaterally withdraw benefits. 34