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Christoph Spennemann, Legal Expert Intellectual Property Team

Intellectual Property Rights and National Development Goals – Ensuring Innovation in Russia St. Petersburg/Moscow Study Tour 2008. Christoph Spennemann, Legal Expert Intellectual Property Team Division on Investment and Enterprise UNCTAD. Overview of presentation.

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Christoph Spennemann, Legal Expert Intellectual Property Team

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  1. Intellectual Property Rights and National Development Goals – Ensuring Innovation in Russia St. Petersburg/Moscow Study Tour 2008 Christoph Spennemann, Legal Expert Intellectual Property Team Division on Investment and Enterprise UNCTAD

  2. Overview of presentation • Intellectual property rights (IPRs) and innovation • Multilateral IPRs: The TRIPS Agreement • IPRs and innovation • Striking a balance between exclusive rights and competition • IPRs & Innovation in Russia

  3. The TRIPS Agreement: Basic Principles • TRIPS objectives • Minimum standards of IP protection • Flexibilities in implementation

  4. TRIPS Objectives • IPRs should contribute to • The promotion of technological innovation; • the transfer & dissemination of technology; • to the mutual advantage of producers and users of technological knowledge • IP protection is not an end in itself, but one means to promote public policy objectives

  5. Minimum standards of IP protection • TRIPS provides for mandatory minimum standards of protection in most IP categories • In general, Members in domestic laws may not provide less protection than under TRIPS • Members may provide higher protection than under TRIPS

  6. Flexibilities in implementation • TRIPS obligations are drafted in general terms • Example: patents available for inventions that are new, inventive & industrially applicable (4 undefined terms) • In order to become operational on national level, most TRIPS provisions need further elaboration by domestic law makers • This leeway in implementation is referred to as « TRIPS flexibility »

  7. IPRs and Innovation (1) • IPRs: exclusive rights as incentives for inventors to invest in R&D • But innovation also needs competition • Competition as a main driver of product improvement • New ideas are mostly developed on the basis of existing know-how • « If I have seen farther, it is by standing on the shoulders of giants »

  8. IPRs and Innovation (2) • Governments must provide balance between need for IP protection and need for access by competitors to technology-related information (public domain) • TRIPS: leeway where to draw the line between IP-protected area and public domain • More exclusive rights  more innovation?

  9. Maximal innovation level Optimal protection level P Patents as a Policy MeasureProtection (P) vs.Innovation (I) Source: Swiss Federal Institute of Intellectual Property, October 2006 I Minimal protection level

  10. Striking a balance (1) • Where is the optimal protection level to reach maximum of innovation? • Historical evidence: no «one-size-fits-all» model (Europe, USA, Rep. Korea) • Early stages of technological development require broad public domain for indigenous learning • Advanced stages of development require higher level of protection of technological assets • Even technologically advanced economies depend on competition and follow-on innovation

  11. Striking a balance (2) • US Federal Trade Commission (FTC) in 2003 Report: • «Questionable Patents Are a Significant Competitive Concern and Can Harm Innovation» • Patents granted for trivial inventions block access to know-how needed for competitive product improvement

  12. Striking a balance (3) • FTC Report example from computer industry: • 90,000 different patents on microprocessors • Patents held by more than 10,000 parties • Many of these patents overlap  each patent blocks several others • Result: dense web of overlapping patents («patent thickets») • Companies seeking to commercialize technology have to pay considerable licensing fees or challenge blocking patents in costly & lengthy litigation

  13. Striking a balance (4) • Balance between IP protection and availability of essential information is also needed in various areas of public policy • Health (access to affordable medicines) • Biotechnology (use of genetic research tools) • Education (access to scientific materials) • Food & agriculture (food security & preservation of biodiversity)

  14. IPRs & innovation in Russia • WTO Accession: bilaterally negotiated standards often provide stronger protection for inventors/creators than TRIPS • Reduction of public domain/competition/follow-on innovation • National costs & benefits depend on technological level of domestic industry: careful assessment of strengths & weaknesses required • Expansion of bilateral standards through MFN rule

  15. Conclusions • IPRs: traditional means to promote domestic technological development • No «one-size-fits-all» model: level of IP protection needs to reflect particular level of development • IPRs must not be too broad to prevent competition and follow-on innovation • TRIPS provides flexibilities for these purposes • Policy makers need to be aware of TRIPS flexibilities • Benefits of TRIPS-plus standards depend on domestic industry’s technological capacity

  16. Contact Christoph Spennemann Legal Expert Intellectual Property Team Division on Investment and Enterprise (DIAE) UNCTAD E-mail: Christoph.Spennemann@unctad.org Tel: ++41 (0) 22 917 59 99 Fax: ++41 (0) 22 917 01 94 http://www.unctad.org/tot-ip

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