WTO: US and Argentina settle dispute over patents and data protection

In May 2000, supplementing an earlier complaint filed in May 1999, the US filed a complaint against Argentina, alleging that its patent laws violate the World Trade Organization's Agreement on Trade-Related Aspects of Intellectual Property (the TRIPS Agreement). The gist of the US complaint was that Argentina's law failed to provide: (1) adequate protection against "unfair" commercial use of undisclosed test data submitted in order to get market approval of pharmaceutical products; (2) certain safeguards for compulsory licences on an invention granted on the basis of inadequate working by the patent holder; and (3) adequate measures to prevent infringements of patent rights. The US also alleged that Argentina denies certain exclusive rights of patent holders, such as the exclusive right to import the patented product into the country. At the end of May 2002, the US and Argentina notified the WTO that they had reached a "mutually agreed solution," without prejudice to their respective rights and obligations under WTO agreements, and the US has withdrawn its complaint.     

US files WTO complaints against Brazil over requirement for "local working" of patents

At the end of May 2000, the US (later joined by the European Communities) filed a complaint against Brazil at the World Trade Organization (WTO), alleging Brazil was in violation of its obligations under the Agreement on Trade-Related Aspects of Intellectual Property Rights (the TRIPS Agreement) and the 1994 General Agreement on Tariffs and Trade. Brazilian legislation that came into force in 1997 establishes that, in order to enjoy exclusive patent rights in Brazil, the holder of a patent on an invention must satisfy a "local working" requirement. In other words, the patent holder must "work" the patent in Brazil to enjoy full patent protection. If it fails to do this, the law says it shall be subject to the possibility of the government issuing a compulsory license, allowing someone else to use the invention and pay a royalty fee to the patent holder.     

Canada loses appeal of WTO panel ruling on minimum patent terms

In the last issue, we reported on a ruling of a Panel of the World Trade Organization (WTO) that Canada was in breach of the international Agreement on Trade-Related Aspects of Intellectual Property Rights (the TRIPS Agreement). The Panel found that Canada's Patent Act does not provide the minimum patent terms required by the trade agreement. Canada appealed that decision, but on 18 September 2000 the WTO Appellate Body upheld the Panel ruling.     

TRIPS from Doha to Cancún ... to Ottawa: global developments in access to treatment and Canada's Bill C-56

In November 2003, Canada introduced legislation to amend the Patent Act so that manufacturers could obtain licences to make generic versions of patented pharmaceutical products for export to countries lacking sufficient capacity to produce their own. Bill C-56 aims to implement an August 2003 decision of the World Trade Organization (WTO) that relaxes its rules on pharmaceutical patents to allow this kind of measure. While the bill is a welcome development, it contains several serious flaws that will undermine the initiative and render it largely meaningless. Civil society organizations, including the Canadian HIV/AIDS Legal Network, have called on the Canadian government to remedy the flaws before Bill C-56 is enacted. This article provides an overview of recent global developments leading up to Canada's initiative, as well as an analysis of Bill C-56 itself.     

The contractual alternative to patents

A patent grants the holder a monopoly over the use of the patented invention for a specified time period. Although economists are generally opposed to monopoly, there seems to be a general consensus that the patent system is desirable.¹ The rationale for the patent system is that without ownership rights in inventions, there would not be optimal allocation of resources to inventive activities, just as with any other valuable resource over which there are not well-defined property rights. However, the patent system, since it confers monopoly rights, has its drawbacks as well. If independent parties are working simultaneously toward an invention, the first to produce the invention will receive a monopoly over its use, even though others may have been only a month behind. This may encourage inventors to work too intensively toward a patent, and could also have the effect of producing monopoly in a market that was characterized by competition before the patent was issued. In addition, competitors have an incentive to develop substitute processes to avoid infringement of the patent, when the use of the patented process would be more economical. A substitute for patents which provides ownership rights in an invention without governmental grant of a monopoly is the trade secret. The purpose of this paper is to introduce and develop the idea of the law of trade secrets as a contractual alternative to patents.     

PATENT HOLDUP AND OLIGOPSONISTIC COLLUSION IN STANDARD-SETTING ORGANIZATIONS

Current controversies over patent policy place standard-settingorganizations (SSOs) on a collision course with antitrust law.Recent theoretical research conjectures that, in an SSO, patentowners can "hold up" patent users in the sense of demandinghigh royalties for a patented input after the SSO has adoptedthe patented technology as an industry standard and manufacturerswithin the SSO have incurred sunk costs to design end productsthat incorporate that standard. Consistent with this conjecture,actual SSOs have recently sought no-action letters from theAntitrust Division for a variety of amendments to SSO rulesthat would require or request, at the time a standard is underconsideration, the ex ante disclosure by the patent owner ofthe maximum royalty that the patent owner would charge underthe regime of fair, reasonable, and nondiscriminatory licensing.This price information—which is characterized as the "cost"of the patented input—would, under at least one recentSSO rule modification, be a permissible topic for potentialusers of the patent to discuss when deciding whether to selectit in lieu of some alternative standard. This exchange of informationamong horizontal competitors would occur ostensibly becausethe cost of the patented technology had been characterized assimply one more technical attribute of the standard to be set,albeit an important technical attribute. The Antitrust Divisionand the Federal Trade Commission have jointly stated that suchdiscussion, by prospective buyers who are competitors in thedownstream market, of the price of a patented invention thatmight become part of an industry standard should be subjectto antitrust scrutiny under the rule of reason rather than therule of per se illegality. The rationale that the antitrustagencies offer for applying the rule of reason to such conductis that such horizontal collaboration might avert patent holdup.The Antitrust Modernization Commission (AMC) similarly endorsedthe view that rule-of-reason analysis is appropriate for exante discussion of royalty terms by competing buyers of patentedtechnology. This rule-of-reason approach, however, is problematicbecause it conflicts with both the body of economic researchon bidder collusion and with the antitrust jurisprudence oninformation exchange and facilitation of collusion. Put differently,because of their concern over the possibility of patent holdup,the U.S. antitrust agencies and the AMC in effect have indicatedthat they may be willing in at least some circumstances to forgoenforcement actions against practices that facilitate oligopsonisticcollusion by encouraging the ex ante exchange of informationamong competitors concerning the price to be paid for a patentedinput as an implicit condition of those competitors' endorsementof that particular patented technology for adoption in the industrystandard. However, neither the proponents of these SSO policiesnor the antitrust agencies and the AMC have offered any theoreticalor empirical foundation for their implicit assumption that theexpected social cost of patent holdup exceeds the expected socialcost of oligopsonistic collusion. This conclusion does not changeeven if one conjectures that such collusion will benefit consumersby enabling licensees to pass through royalty reductions intheir pricing of the downstream product incorporating the patentedtechnology. Proper economic evaluation of the plausibility ofthe pass-through conjecture will require information about thecalculation of royalty payments; the demand and supply elasticitiesfacing the licensees; and the structure of any industries furtherdownstream between the manufacturer and the final consumer.Consequently, the magnitude of this effect will likely be amatter of empirical dispute in every case. Moreover, such ajustification for tolerating horizontal price fixing finds nosupport in antitrust jurisprudence. Given the analytical andfactual uncertainty over whether patent holdup is a seriousproblem, it is foreseeable that antitrust questions of firstimpression will arise and affect a wide range of high-technologyindustries that rely on SSOs. However, there is no indicationthat scholars and policy makers have seriously considered whetheroligopsonistic collusion in SSOs is a larger problem than patentholdup.     

知识产权法律中责令停止侵权罚则的探讨

以武汉晶源诉日本富士化工、华阳电业一案为例,在分析我国法律法规和国际条约相关规定的基础上,探讨法院在什么情况下可以不支持权利人关于“责令停止侵权行为”的诉求.通过比较公共利益强制许可与法官做出继续执行判决的起因、二者适用的实体法和程序法等,探讨了以公共利益为由责令不停止侵权与公共利益强制许可的区别与联系.根据对武汉晶源案的分析,提出了完善和修改专利法相关规定的几点思考.     

假冒专利罪疑难问题探讨

假冒专利罪保护的法益是超个人法益,因此,假冒并不存在的他人的专利,以及未获专利却谎称已获专利的行为,构成假冒专利罪;非法实施他人专利的专利侵权行为,从应然的角度讲,应纳入刑法规制的范畴,但从现行立法规定来看,无法以假冒专利罪定罪处罚;在生产、销售的伪劣商品上假冒专利,或者还假冒他人注册商标的,均应数罪并罚;专利权的刑法保护以选择集中型和散在型相结合的立法模式为宜。     

中国专利强制许可制度的完善

专利强制许可制度是保护社会公众利益和防止滥用专利垄断权的重要手段。TRIPS协议允许WTO的成员在一定情况下使用专利强制许可制度。我国社会保障制度不健全,现行立法对专利强制许可制度的使用限制亦过严,没有充分利用WTO规则所赋予的灵活性,许多规定甚至超过TRIPS协议的要求。这种状况与我国的经济发展水平和社会公共利益需要不相适应,有必要通过修订法律加以完善。     

专利侵权赔偿中的技术分摊难题——从美国废除专利侵权“非法获利”赔偿说起

在确定专利侵权的损害赔偿数额时，要把可归因于覆盖专利技术特征的那部分产品价值从产品整体价值中分摊出来，这可称为技术分摊规则。美国废除专利侵权中非法获利赔偿这一反常做法，引出专利法上的一个重要命题：技术分摊不可能性。在所失利润赔偿计算中，美国用市场分析法代替技术特征法，从而淡化技术分摊规则，扩张了全部市场价值规则。我国法院在审判实践中运用了技术分摊规则，但没有法律依据，这一现象亟待规范。     

修理、更换、回收利用是否构成专利权侵害

对专利产品进行修理、零部件更换或者回收利用是否构成专利权侵害，必须以专利权利要求保护的范围作为最基本的判断标准；即使对专利产品进行修理、零部件更换或者回收利用构成再造，也并不必然侵害专利权；在处理对专利产品进行修理、零部件更换或者回收利用是否专利权侵害的问题时，关键是处理好以生产经营为目的提供零部件的行为是否构成专利权间接侵害。     

公共健康和强制许可制度

TRIPS协定将传统的专利保护客体扩大到所有技术领域的任何发明,将医药产品及方法纳入了专利保护的范围,以致受专利保护的药品价格大幅上扬,在一些国家尤其是发展中国家和不发达国家产生健康危机。本文试图在分析《多哈宣言》及其《执行决议》中关于强制许可制度规定的基础上,提出我国可将其作为解决公共健康危机的基本途径。     

House of Commons committee releases report on Canada's drug strategy

On 17 May 2001, the House of Commons created a Special Committee on Non-Medical Use of Drugs based on a motion introduced by Randy White, Canadian Alliance MP (Langley-Abbottsford) and gave it a very broad mandate to study "the factors underlying or relating to the non-medical use of drugs in Canada" and to propose recommendations aimed at reducing "the dimensions of the problem involved in such use." In December 2002, the Committee released its report, entitled Policy for the New Millennium: Working Together to Redefine Canada's Drug Strategy. The report contains many good recommendations, but fails to deal adequately with the fundamental harms caused by Canada's drug laws and federal government inaction. Far better is the supplementary report written by NDP MP Libby Davies (Vancouver East), which contains an excellent, informed critique of the report. The supplementary report from the official opposition, written by MPs Randy White and Kevin Sorenson (Crowfoot, Alberta) also makes for interesting, if troubling, reading--it is based nearly exclusively on fiction rather than facts and science.     

中美知识产权“刑事门槛”争端的法律问题

2007年4月美国就中国知识产权刑事保护机制问题提交WTO争端解决机构(DSB)以寻求解决。这是DSB受理的第一起就知识产权刑事保护机制问题所引发的争端。本案的争议核心是如何解释作为"刑事门槛"的《TRIPS协定》第61条所规定的"商业规模"。通过DSB解释实践,可以看出,"商业规模"的解释主权应属各成员所有,但解释边界受《TRIPS协定》第61条相关条件的限制,中国知识产权刑事保护立法机制符合《TRIPS协定》,没有必要继续下降"刑事门槛"。美国对中国知识产权的施压应由单纯要求"降低刑事门槛"转变为"如何在降低正版产品的价格情况下加大对盗版的刑事打击力度"。     

美国专利侵权损害赔偿中的分摊规则问题

在专利侵权损害赔偿确定中,以侵权产品的总价值中可归功于被侵权专利技术的贡献确定专利侵权损害赔偿的分摊规则,有助于解决全部市场价值规则所导致的过度赔偿及专利权排他权非法扩张等问题。美国一百多年相关实践对分摊规则进行了有益探索,我国应借鉴美国的经验对专利侵权损害赔偿制度进行完善。     

侵犯知识产权罪若干问题研究

随着知识经济时代的临近,侵犯知识产权的各种违法犯罪必将日益突出。针对刑法规制知识产权的犯罪存在的一些疏漏,应当从以下几个方面予以完善;反向假冒应纳入假冒商标罪的范畴;在非专利产品上擅自使用专利标记、以自己的非专利产品假冒他人的专利产品、实施专利的行为,是假冒专利罪的具体表现形式;用故意及商业规模来限制侵犯著作权罪的调控范围。     

美国“201条款”与新贸易保护主义政策分析

美国以国内贸易法“2 0 1条款”为依据 ,掀起了新一轮贸易保护主义浪潮。美国的“2 0 1条款”与WTO的“保障措施协定”存在抵触。钢铁贸易保护是一种单边主义行为 ,将对世界贸易组织的稳定带来巨大的冲击。中国必须作出应对的战略选择 ,维护国家经济主权     

The transfer of public science to patented technology: A case study in agricultural science

One of the most difficult challenges in technology transfer is to measure the movement of knowledge from basic scientific research to industrial technology. This paper will report on a study of the linkage between science supported by the Agricultural Research Service (ARS) and patented technology. This study traced the citations from U.S. patents issued in 1987–88 and 1993–94 to scientific research papers linked to the U.S. Department of Agriculture (USDA). The number of patent citations to ARS papers, and to other USDA-supported papers has increased fourfold over the six-year period. A distinct difference also exists between the patent-cited ARS papers and patent-cited extramural USDA-supported papers: ARS papers are in more agriculturally related journals, while the extramural papers were in more basic and biomedical journals. USDA-supported papers were overwhelmingly cited by U.S.-invented patents (in a patent system in which half the patents are foreign-invented). In the primary field of ARS papers (Biology), they are cited much more often by patents than Biology papers from any other publishing organization. Since the publishing organizations and support sources of all the papers cited in these patents have now been identified, we can study the transfer of scientific results to patented technology by institution, by agency, or by any other category of patent or paper holder. The authors thank the Agricultural Research Service of the U.S. Department of Agricultural, especially Dr. Richard Parry, for this paper' use of the study performed for them by CHI Research, Inc. (Grant number 59-0790-6-054)     

专利权垄断性的法哲学分析

专利权具有垄断性但不是法律上的垄断权。专利权客体的本质是技术方法。专利权客体通过权利说明书外化而具有可审查性;专利权客体内化和物化为专利产品而具有财产内容。专利权垄断性是专利法比照物权设立的对抗他人效力的权利逻辑范围。专利法是国家以技术进步为交易目的、在技术发明人和社会公众之间的“对价”或衡平机制。专利产品垄断市场份额是市场开发的结果而不是制度配给。