Journal of World Intellectual Property最新文献

The European Union (EU) text and data mining (TDM) provisions are a progressive move, but the horizon is still uncertain for both generative artificial intelligence (GenAI) models researchers and developers. This article suggests that to drive innovation and further the commitment to the digital single market, during the national implementation, EU Member States could consider taking the Japanese broad, all-encompassing and “nonenjoyment-based” TDM as an example. The Japanese “nonenjoyment” purposes, however, are not foreign to the European continental view of copyright. A similar concept can be found under the German concept of “Freier Werkgenuss” or enjoyment of the work. A flexible TDM exception built upon the German notion of nonenjoyment purposes could become an opening clause to foster innovation and creativity in the age of GenAI. Moreover, the article argues that an opening clause allowing TDM with “nonenjoyment” purposes could be permissible under the so-called three-step test. This article further suggests, if there is no political will to safeguard “the right to read should be the right to mine” and to provide a welcoming environment for GenAI researchers and developers, when shaping the legal interpretation through national case law, the EU Member States could consider the following: (1) advocate for 72 h of response if technological protection measures (TPMs) are preventing TDM, and (2) Robot Exclusion Standard (robot.txt) as a warning when TDM is not allowed on a website. It is now in the hands of the EU Member States, whether to protect the interests of rightholders or to create a balance between safeguarding “the right to read should be the right to mine,” protecting rightholders exclusivity, and creating a supportive environment for the GenAI models researcher and developers.

Art 17 Directive 2019/790 on copyright and related rights in the Digital Single Market (CDSMD) offers not only a new perspective on service provider liability but also on user rights in the digital sphere of copyright law. The Directive obliges Member States to enable users of online content sharing service providers to assert the use of an exception or limitation before a court or another judicial authority. Hence, art 17 CDSMD foresees a subjective, that is, enforceable, right of the user deriving out of the exceptions and limitations of copyright and related rights. Yet, there is no clear guidance on how to transpose this requirement into national law, neither in art 17 CDSMD nor within the judgment of the CJEU in the annulment proceeding or the guidance of the EU Commission. This generates uncertainty for Member States, for which the concept of enforceable user rights is novel. The paper examines the requirements which art 17 CDSMD sets out for digital user rights and the difficulties for Member States to comply with them. The example of the German transposition of art 17 CDSMD shows that a high standard of user protection is not necessarily accompanied by a respective enforceability mechanism.

Coronavirus disease 2019 (COVID-19), a highly contagious infectious disease caused by severe acute respiratory syndrome coronavirus 2 (SARS-CoV-2), has had a devastating effect on world demographics and emerged as a significant global health emergency since the influenza pandemic of 1918. It emphasized the significance of international cooperation in battling SARS-CoV-2 efficiently ever since the discovery and publication of the virus's genome in January 2020. The world took significant steps to combat the disease, ranging from increasing personal protective equipment production and emphasizing the importance of social distancing/masking to the Emergency Use Authorization of remdesivir/therapeutic antibodies. Despite significant advances in clinical research that have led to a better understanding of SARS-CoV-2 and COVID-19 management, limiting the virus's and its variants' spread, has become a growing concern as SARS-CoV-2 continues to cause chaos around the world, with many countries experiencing a second or third wave of outbreaks attributed primarily due to the emergence of mutant virus variants. Considering the potential threat of this global outbreak, scientist and medics have rushed to identify possible treatment regimens and effective therapeutic drugs and vaccinations. As a matter of fact, several COVID-19 vaccines candidate have been researched, created, tested, and reviewed at a breakneck pace. Finding patents, examining relevant patents for current research activities and assessing them plays a key part for the best possible research and development before establishing and executing a trading strategy, especially with recent technology advancements. Therefore, to support current research and development we have evaluated patents relevant to various COVID-19 vaccine technology platforms. The aim of the present research work is to map the existing work through an analysis of patent literature in the field of Coronaviruses, particularly COVID-19 vaccines which will subsequently help the organization launch campaigns, as well as academics and research-driven institutions with the aid of patent literature information for a range of initiatives to combat this circulating demon.

The Covid-19 pandemic inflicted socioeconomic harm on an unprecedented scale. Across the world and to varying degrees, cinemas were closed, festivals were cancelled or postponed, and film releases were moved to future dates or delayed indefinitely. In 2020 the entire global theatrical and home/mobile entertainment market totalled $80.8 billion, the lowest figure since 2016 and a decline of 18% from 2019. Theatrical entertainment accounted for only 15% of the total global entertainment revenue, compared to 43% in 2019. While some has been written about the effects of Covid-19 on both international and local film industries, this article seeks to provide an African perspective focusing on the realities in Nigeria and South Africa, respectively. This article examines the importance of filmmaking industries in Nigeria and South Africa as well as the difficulties faced during the Covid-19 pandemic. Copyright laws in both terrains are critically reviewed based on the capacity of these laws to protect the interests of film industries pre and post-Covid-19.

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.