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Coherence between Patent Law and Public Policies in Developing Countries and LDCs

This article explores the need for coherence between patent law and public policies in developing countries and LDCs, focusing on the areas of innovation, health, and trade. It discusses how patents operate, the tools for innovation, national innovation policies, and challenges faced in achieving coherence. The article also highlights examples of incoherence and offers solutions to address the issues.

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Coherence between Patent Law and Public Policies in Developing Countries and LDCs

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  1. Patent Systems in Developing Countries and LDCs: The Need for Coherence between Patent Law and Public Policies: Innovation, Health and Trade 2nd WIPO Inter-Regional Meeting on South-South Cooperation on Patents, Trademarks, Geographical Indications, Industrial Designs and Enforcement Cairo 6-8 May 2013 Dr. Mohammed El Said (UCLAN, UK)

  2. Themes • How patents operates? • Patents vrs public policy: coherence • Tools for innovation • Checks and balances • National innovation policies • Incoherence? • Challenges

  3. How patents operate? Incentives vrsmonopoloy

  4. Patents vrs public policy: coherence • Development relationship • Role of state • Stimulate innovation • Create a competitive environment • Curtail monopolistic practises • International obligations

  5. Patents vrs public policy: international coherence Under international law and the TRIPS Agreement, TRIPS Preamble • Recognizing the underlying public policy objectives of national systems for the protection of IP, including developmental and technological objectives; • TRIPS Art. 7: The protection and enforcement of IPRs 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… • TRIPS Art 8.1:…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…

  6. National coherence Tools: Patent-related • POLICY SPACE: wide incorporation & interpretation of flexibilities: • Transition periods if applicable • Compulsory Licensing + guidelines • Parallel importation • Patentability criteria (minimize evergreening) • Exceptions from patent protection • Exemptions from patent protection • Patent oppositions (pre and post grant) • Enforcement obligations

  7. Supportive Patent-related tools: Triggering innovation

  8. Supportive Patent-related tools • Innovation incentives (example neglected disease) • Open source drug discovery and development • Grants • Prizes • Advance market commitments • Patent pools • Tax breaks for companies • Priority review voucher • A global binding framework for R&D for neglected diseases • Patents information

  9. National coherence Tools : outside the Patent regime • Creation of checks and balances • IP as one element, other factors: • Role of competition law (deter, correct, balance) • Abuse, Mergers, Prevention of generics, Bids, cartel…etc • Patent offices • Pension schemes, national health insurance programs, national innovation agendas, procurement…etc • Role of Judiciary • Access to information laws

  10. FACTORS: Innovation vrs accessibility and availability

  11. National innovation policies (case study 1 Singapore) • Cautious note • In April 2013, Singapore revealed its 10 years plan to be a global IP Hub • Over 200 IP professionals were consulted over a year. • long term based on comparative advantage

  12. Elements of strategy • 1- Strategic outcomes • IP transactions and management: using Singapore as a base to manage and transact IP • Quality IP filings: companies register and utilise their IP, services and infrastructure, and leverage Singapore as a gateway to secure IP protection in key markets worldwide; and • IP dispute resolution:IP disputes brought for expeditious/effective resolution through litigation/ADR . • 2- Supporting Enablers: To achieve, should develop: • Skilled manpower : networked to the region and beyond, to effectively serve the international needs of companies; • A conducive and progressive environment for IP activities, to strengthen international acclaim of Singapore as a vibrant IP hub and establish it as leader in IP

  13. National innovation policies (case 2 china) Exploring creative options nationally = • Professors are likely to win tenures • Those who file patents are likely to earn residence permits to live in desirable cities • For some types of patents, government pays cash bonuses • Other types government pays filing fees • Corporate tax exemptions up to 25%, • More likely to government contracts • Utility models filing

  14. Examples of incoherence

  15. incoherence ?

  16. incoherence ?

  17. incoherence?

  18. incoherence?

  19. incoherence?

  20. incoherence?

  21. Challenges • Lack of national coordination • Lack of legislative framework • lack of a regional and international agenda • Free Trade and TRIPS-Plus agreements

  22. Final thoughts • “In a global economy, a global system of intellectual property rights is needed. This system must reflect the needs both of countries that are developing and those that have developed. The problem is similar to the one concerning which types of knowledge should be in the public domain in the developed world’’. Lester Thurow, 1997

  23. Thank you • Mel-said@uclan.ac.uk

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