Journal of World Intellectual Property最新文献

Patents help in protecting research and development efforts in an organisation. They are known to increase valuation during merger and acquisition and act as signal for investors to make investment decisions in startups. Despite the value that patents add to a firm, vast majority of patents remain unutilised across organisations. Environmental, social, and governance (ESG) investing is gaining popularity and investors are increasingly using ESG analysis to make investments. In this paper, we study patents filed by Indian startups which pertain to one or more ESG factors, that is, environmental, social, and governance factors. The startups selected were externally funded startups. We believe that startups having patents pertaining to ESG factors will foster sustainable innovation, responsible investments, and better patent utilisation in startups.

The existence of standard essential patents (SEPs)—and the associated litigation—has potentially disruptive consequences for the manufacture, marketing and distribution of complex products that incorporate many patented standards, for example, information and communication technology (ICT) products such as smartphones that incorporate a camera, video, web browser, wireless communications, text messaging, and so on, as well as an increasing number of ‘connected’ Internet of Things products such as wearable devices and ‘smart home’ devices. Indeed, SEP owners may use the patent enforcement system to prevent implementers of these technologies from bringing to market competing products that use the same standards. As is known, this raises concerns about competition in the market and the need to maintain interoperability to ensure the development of the ICT industry. One of the legal tools which can be used by implementers to (try to) neutralise SEP holders' anticompetitive behaviours is the ‘antisuit injunction’ (ASI). ASIs are not uncommon in common law jurisdictions while they are foreign to civil law countries within the European Union (EU). ASIs are particularly useful to SEP implementers when patent holders disrespect their commitment to license their patents on a FRAND basis. For example, a judge who is in the process of assessing whether the SEP owner complies with FRAND terms may at the same time grant an ASI to stop the patentee taking patent infringement actions in other jurisdictions until the FRAND litigation has been concluded. In February 2022, the EU filed a complaint at the World Trade Organization (WTO), arguing that China's use of ASIs prevents EU-based companies from properly protecting their SEPs. Indeed, ASIs have recently been granted in several Chinese disputes, including in Huawei v Conversant and Xiaomi v. InterDigital. More specifically, China's Supreme People's Court held that Chinese courts can use ASIs to prevent SEP owners from filing disputes in any foreign courts to enforce their patents; and that anyone who does not comply with the injunction should be fined €130,000 per day. In the WTO case the EU notes that such a case law jeopardises innovation and growth in Europe, ‘effectively depriving European technology companies of the possibility to exercise and enforce the rights that give them a technological edge’. From a legal perspective, according to the EU, China's conduct is in violation of various Trade-Related Aspects of Intellectual Property Rights (TRIPS) provisions, including Article 28 which grants exclusive rights to patent owners. The paper focuses on this EU–China WTO/TRIPS dispute and more generally, on the relevance of ASIs within SEP cases.

Regulatory data protection is mandated in the Agreement on the Trade Related Aspects of Intellectual Property Rights (TRIPS Agreement) for two kinds of goods: medicinal products and plant protection products (PPP). In the European Union (EU), the level of their protection has been set far beyond the minimum TRIPS standards and the adopted model of protection has been, for the most part, based on temporary exclusivity. Innovative plant protection products benefit from data exclusivity combined with a compulsory data sharing regime. Data exclusivity refers to products being authorised for the first time for the market of the EU on the grounds of a complete authorisation procedure, based on submission of a full data dossier. Within the period of exclusivity, these data may not be referred to in the authorisation procedure of a generic product—an equivalent to the reference one. In this way, data exclusivity creates a period of factual monopoly for the innovative products and constitutes a sui generis intellectual property right. This paper presents the regime of regulatory data protection in the European Union law as an instrument of legal protection for innovative products in the agrochemical industry. It first analyzes the purpose and functions of regulatory data protection in EU law and in the TRIPS Agreement. Then, the rules of protection by means of data exclusivity and compulsory data sharing are examined. This allows for further considerations on the role of regulatory data protection and compulsory sharing of data in the overall legal protection for innovative products in the agrochemical industry. In view of the above, this chapter discusses both the instruments of protection for PPP regulatory data and poses several questions concerning their rules, practical meaning and possible future modifications. In particular, it is considered whether data exclusivity is the optimal regime of protection for registration data and recommend that a data sharing approach could be used instead of the data exclusivity rule, as is the case with compulsory vertebrate data sharing, to the benefit of the industry and public interest. This chapter allows for evaluation and assessment of the economic and social value of data exclusivity in said areas for fostering primary and secondary innovation, while acknowledging other vital interests such as protection of public interest and safeguarding competition in the relevant markets. Finally, this chapter maps challenges of the current model of protection and indicates areas for further consideration in both creating a coherent and balanced framework of PPP data protection and the possible extrapolation of the data sharing rules to systems of data protection for other life science products.

Traditional knowledge of indigenous communities often overlaps with spiritual traditions in which certain biogenetic resources are understood to be “sacred”. Accordingly, one of the key concerns of these communities is to retain control over the manner in which the knowledge is used so as to ensure that its sanctity is preserved. While much of the literature on the protection of traditional knowledge revolves around defensive protection, some commentators have argued for positive protection using patent law by recognizing the entire community as inventors and vesting property rights in perpetuity with the community as a whole. This paper observes that such positive protection through patents is consistent with the TRIPS Agreement and is likely to be successful in combating biopiracy but suffers from one crucial flaw—even if the community owns patent rights over a biogenetic resource, the community has no means to ensure that a potential licensee of the patent would adhere to the religious protocols of the community. Accordingly, it argues for the incorporation of collective moral rights rooted in indigenous law into the legal framework governing the licensing of traditional knowledge patent with a view to ensuring that indigenous communities can preserve their cultural heritage even after such community patents are licensed.

The fourth industrial revolution, as it is popularly known, is transforming the overall ecosystem of business and is swiftly affecting the structure of organizations with respect to their working strategy. It is leading to enhanced collaboration and cross-application of center-specific fundamentals across various industries. As a result, collaboration and cross-licensing of technologies have become the norm rather than an exception. Open innovation, therefore, plays a critical role in various horizontal applications of industry-specific concepts. As a result, choices such as “keep or sell” or “make or buy” research and development (R&D) supplies have become extremely critical and significant. Therefore, patent-based research is required as an enabling tool for assisting research on an open innovation-based approach. This article projects an in-depth review of the research articles related to various aspects of open innovation and patents and their overall impact on firm performance. This article also suggests an open innovation model that cumulates the role of patents and institutional participation with a focus on firm performance. The impact of open innovation on firm performance is evaluated with respect to variables on market positioning, R&D capacity building with respect to technology lifecycle, the impact of intellectual property, for instance, the existence of valid patents and know-how, and the process of acquisition of technologies by such organizations.

An internationally standardised system of intellectual property protection for new varieties of plants is outlined by the Union for the Protection of New Varieties of Plants Convention. Within this system, member States must determine who will be responsible for assessing plant varieties. Jurisdictions have adopted divergent approaches to this question, with varying degrees and modes of government involvement in the assessment process. Taking Australia as a case study, this article explores a decentralised system of expert judgement where individuals accredited as Qualified Persons are authorised to judge new plant varieties. Drawing on extensive interviews, this article outlines Australia's Qualified Person system, including the accreditation, training, and supervision of Qualified Persons. I argue that the formal system of varietal assessment is underlaid and buttressed by a multiplicity of informal elements, including the tacit knowledge of Qualified Persons, audit processes, apprenticeship-like learning practices and interpersonal relationships of trust between Qualified Persons and government officials.

Standard-essential patents (SEPs) are patents that are deemed essential to a specific technology standard, such as those used in wireless communication technologies. With the increased use of artificial intelligence (AI) and machine learning in a variety of applications, there is a greater demand for SEPs in the field of AI-based apps. However, licencing SEPs can be a complicated process, and there is no agreement on best practises for SEP licencing in AI-based apps. The adoption of a multifactor approach for determining FRAND royalty rates, the use of ex ante licencing to prevent patent hold-up, and the establishment of specialized dispute resolution mechanisms for SEP disputes are some of the proposed best practices for SEP licencing in AI-based apps. As potential solutions to the challenges associated with determining FRAND royalty rates in AI-based apps, this study proposed alternative royalty schemes, such as the use of a per-unit royalty rate or a revenue-sharing scheme.

Believing that space pharmaceuticals might be the key to winning the battle against COVID-19, global pharmaceutical companies such as AstraZeneca and Sanofi Pasteur are currently collaborating with the International Space Station National Laboratory (ISS-NL) on research projects aiming to develop vaccine-and-immunotherapy products. The present legal regime for outer space, however, does not provide clear guidelines on safeguarding intellectual property rights (IPRs), due to the difficulties of reconciling the territorial nature of patent law and the nonterritorial nature of space law. Responding to such a legal gap, this research paper argues how pharmaceutical companies can protect such medical innovations by taking into consideration the international principles of space law addressing IPRs and extraterrestrial jurisdiction, as well as the legal regime of the ISS-NL. With the exception of the possibility of the barriers between the two areas of law not being insurmountable, the proposed COVID-19 TRIPS Waiver furthermore impacts space pharmaceuticals' IPRs and commercialization, which leads to the identification of some advantageous forms of agreements, including the Joint Endeavor Agreement, the Space Act Agreement, as well as the Cooperative Research and Development Agreement, for pharmaceutical companies defined as agreement partners with the National Aeronautics and Space Administration.

Patent protection emerged as one of the most challenging barriers to the access to medicines, medical equipment, and vaccines as well for the treatment and containment of Covid-19 when it became a pandemic. The severe scarcity of vaccines and pharmaceutical products were weakening the fight against Covid-19, and endeavor to contain the recurrence of pandemic waves while mutation of the SARS-CoV-2 was also on the full swing. Therefore, India and South Africa jointly proposed for patent waiver at WTO in October 2020 to effectively deal with the short-supply of medicines, medical equipment, vaccines and high price concern related to these products. After 20 months of consultation and negotiations with major stakeholders, the WTO came up with decision on patent waiver in 12th Ministerial Conference (12th MC). The time taken to reach to the decision in the pandemic situation and the narrow scope of the decision is a serious concern for the entire world to deal effectively with Covid-19 and its variants. This paper attempts to analyse the patent waiver in the context of the agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS). It discusses patent barriers, alternative measures and needs for equitable access to vaccines and pharmaceuticals amidst the pandemic. Paper applies the qualitative methodology of research mainly content analysis method in the framework of contextualisation, decontextualisation, and recontextualisation. Results show that suspending certain provisions of the TRIPS required for the production of vaccines and medicines would prove a crucial tool for economies to return to its pre-Covid-19 era. Paper concludes that, patent waiver can be one of the most important tool to fight the Covid-19 (as WHO has not yet declared the end of pandemic) and will pave the way to deal with any such unknown future pandemic effectively.