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4. You further agree not to publish any personal information about yourself or anyone else (for example telephone number or home address). If you add a comment to a blog, be aware that your email address will be apparent.

5. IP Watch will not be liable for any loss including but not limited to the following (whether such losses are foreseen, known or otherwise): loss of data, loss of revenue or anticipated profit, loss of business, loss of opportunity, loss of goodwill or injury to reputation, losses suffered by third parties, any indirect, consequential or exemplary damages.

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9. These terms and your posts and contributions shall be governed and interpreted in accordance with the laws of Switzerland (without giving effect to conflict of laws principles thereof) and any dispute exclusively settled by the Courts of the Canton of Geneva.

The Politicization Of The US Patent System

The Washington Post story, How patent reform’s fraught politics have left USPTO still without a boss (July 30), is a vivid account of how patent reform has divided the US economy, preempting a possible replacement for David Kappos who stepped down 18 months ago. The division is even bigger than portrayed. Universities have lined up en masse to oppose reform, while main street businesses that merely use technology argue for reform. Reminiscent of the partisan divide that has paralyzed US politics, this struggle crosses party lines and extends well beyond the usual inter-industry debates. Framed in terms of combating patent trolls through technical legal fixes, there lurks a broader economic concern – to what extent ordinary retailers, bank, restaurants, local banks, motels, realtors, and travel agents should bear the burden of defending against patents as a cost of doing business.


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    Australian Tobacco Law May Head To WTO Dispute As TRIPS Council Meets

    Published on 28 February 2012 @ 11:51 am

    By , Intellectual Property Watch

    The World Trade Organization committee responsible for intellectual property issues today is meeting to address its usual list of topics with two recent additions of international interest. Countries negotiating the embattled Anti-Counterfeiting Trade Agreement (ACTA) and a country opposed to Australia’s public health law on tobacco packaging have added these to the agenda. Sources at the meeting say opponents of the tobacco law may be near to filing a dispute settlement case at the WTO.

    The WTO Council on Trade-Related Aspects of Intellectual Property Rights (TRIPS) meets on 28 February and into 29 February as necessary.

    According to the WTO, ACTA will come under the subject of enforcement and was requested by Australia, Canada, the European Union, Japan, Korea, Mexico, New Zealand, Singapore, Switzerland and the United States. Most of the countries in that group have already signed ACTA, but it has come under harsh public scrutiny in recent weeks in Europe. The European Commission announced last week that the ratification process in EU countries is on hold pending a European Court of Justice decision about the legality of the agreement negotiated last year. Some developing countries may use the opportunity to raise concerns about the plurilateral trade agreement.

    Tobacco Packaging

    Also on the list again is a law passed by Australia requiring plain packaging for tobacco products in an effort to discourage use of those products deemed harmful to public health. The Dominican Republic, along with several other countries and tobacco industry lobbyists, has cited the economic impact of the law and has raised questions about the compliance with WTO Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS). The issue is seen generally as a test of a national government’s ability to take actions in their domestic public interest despite their harm to trade in a particular product, and more specifically of trademark provisions in TRIPS.

    Some delegates said today that opponents of the law may shortly bring a case against Australia under the WTO Dispute Settlement Body related to preventing companies from using their trademarks. The DSB process would begin with consultations between the parties.

    An Australian government website on the law, including pictures of the packaging, is here.

    At the last TRIPS Council meeting, countries raising concern about the tobacco law included: Cuba, Dominican Republic, El Salvador, Honduras, Mexico, Nicaragua, Nigeria, Ukraine, and Zimbabwe. Some of those could join if a dispute settlement case is brought.

    Countries speaking in favour of countries’ right to use flexibilities in the TRIPS Agreement for public health purposes including tobacco control included Brazil, Chile, China, India, the EU and Switzerland. Supporters of Australia were New Zealand, Norway and Uruguay. At the TRIPS Council, the World Health Organization spoke to the seriousness of global smoking problems and said plain packaging is part of the agreed WHO Framework Convention on Tobacco Control.

    The tobacco industry has already filed two lawsuits against Australia, one through a bilateral treaty between Hong Kong and Australia, and one within Australia.

    In November 2011, Philip Morris Asia Limited (PMA), Hong Kong, acting for its Australian affiliate Philip Morris Limited, (PML) served a notice of arbitration under Australia’s Bilateral Investment Treaty with Hong Kong, signed in 2003.

    The bilateral treaty signed in 2003 secures reciprocal protection for investments, including an investor-state provision allowing companies from one country to sue the other government directly. Under TRIPS rules, disputes may only be brought between governments.

    In its press release, PMA sought the suspension of Australia’s plain packaging legislation and for compensation for potential effect of the law to its trademarks and investments in Australia. The tobacco maker estimated damages could reach “billions of dollars.”

    PML manufactures cigarettes under the brands Marlboro, Alpine, Longbeach, Peter Jackson, Choice and GT.

    PMA first notified the Hong Kong government on its intent to file a case against Australia in June 2011. It had proposed Singapore as the seat of arbitration and with the Secretary-General of the Permanent Court of Arbitration at The Hague as the appointing authority.

    The Philip Morris press release on the Hong Kong filing is here.

    PML filed a second case in Australia in December 2011. The Philip Morris press release is here.

    Other Issues

    Other topics expected to arise at the meeting include a public health amendment to the TRIPS Agreement; a review of higher level protection for wines and spirits geographical indications (TRIPS Art. 24.2); and longstanding issues related to biodiversity and patents on life forms that have been tied to the stalled Doha Round of negotiations at WTO. The developing country proposal for a TRIPS amendment requiring disclosure of origin of genetic material in patent applications has surfaced at the neighbouring World Intellectual Property Organization.

    A further agenda item is a provision allowing one country to file a complaint about the action of another even if it does not violate a WTO agreement. The moratorium on this non-violation clause under TRIPS was extended in December by the ministerial conference until the next ministerial to be held in 2013.

    In addition, the Council may discuss follow-up to a review of TRIPS Article 66.2, under which developed countries are required to take measures to enable technology transfer to developing countries. Also, discussion may be held on least developed countries’ needs to help them toward future implementation of the TRIPS Agreement. Such countries are still under a transition period.

    Separately, since the last TRIPS Council meeting in October, several more countries have adopted the public health amendment to TRIPS, including: Cambodia, Panama, Costa Rica, Rwanda, and Honduras. When two-thirds of the WTO membership has adopted it, the 2005 amendment to TRIPS goes into effect. The list of those who have accepted the amendment is available here.

    The amendment is already in effect as a temporary waiver to TRIPS agreed in August 2003. The measure waived a provision in TRIPS that requires that substantially all of pharmaceuticals produced under compulsory licence be for domestic use. The waiver is intended to help developing countries lacking domestic production capabilities to obtain needed drugs affordably. The waiver has only been used once.

    Intern Maricel Estavillo contributed to this report.

    William New may be reached at wnew@ip-watch.ch.

     

    Comments

    1. Ukraine WTO Trademark Dispute vs. Australia Tests Public Health Measures | Intellectual Property Watch says:

      [...] issue was discussed among WTO members at the last meeting of the WTO Council on TRIPS (IPW, WTO/TRIPS, 28 February 2012). At that meeting, countries restated positions they had taken in the past several TRIPS Council [...]


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    We welcome your participation in article and blog comment threads, and other discussion forums, where we encourage you to analyse and react to the content available on the Intellectual Property Watch website. By participating in discussions or reader forums, or by submitting opinion pieces or comments to articles, blogs, reviews or multimedia features, you are consenting to these rules.

    We welcome your participation in article and blog comment threads, and other discussion forums, where we encourage you to analyse and react to the content available on the Intellectual Property Watch website.

    By participating in discussions or reader forums, or by submitting opinion pieces or comments to articles, blogs, reviews or multimedia features, you are consenting to these rules.

    1. You agree that you are fully responsible for the content that you post. You will not knowingly post content that violates the copyright, trademark, patent or other intellectual property right of any third party or which you know is under a confidentiality obligation preventing its publication and that you will request removal of the same should you discover that you have violated this provision. Likewise, you may not post content that is libelous, defamatory, obscene, abusive, that violates a third party's right to privacy, that otherwise violates any applicable local, state, national or international law, that amounts to spamming or that is otherwise inappropriate. You may not post content that degrades others on the basis of gender, race, class, ethnicity, national origin, religion, sexual preference, disability or other classification. Epithets and other language intended to intimidate or to incite violence are also prohibited. Furthermore, you may not impersonate others.

    2. You understand and agree that Intellectual Property Watch is not responsible for any content posted by you or third parties. You further understand that IP Watch does not monitor the content posted. Nevertheless, IP Watch may monitor the any user-generated content as it chooses and reserves the right to remove, edit or otherwise alter content that it deems inappropriate for any reason whatever without consent nor notice. We further reserve the right, in our sole discretion, to remove a user's privilege to post content on our site. IP Watch is not in any manner endorsing the content of the discussion forums and cannot and will not vouch for its reliability or otherwise accept liability for it.

    3. By submitting any contribution to IP Watch, you warrant that your contribution is your own original work and that you have the right to make it available to IP Watch for all purposes and you agree to indemnify IP Watch, its directors, employees and agents against all damages, legal fees and others expenses that may be incurred by IP Watch as a result of your breach of warranty or of these terms.

    4. You further agree not to publish any personal information about yourself or anyone else (for example telephone number or home address). If you add a comment to a blog, be aware that your email address will be apparent.

    5. IP Watch will not be liable for any loss including but not limited to the following (whether such losses are foreseen, known or otherwise): loss of data, loss of revenue or anticipated profit, loss of business, loss of opportunity, loss of goodwill or injury to reputation, losses suffered by third parties, any indirect, consequential or exemplary damages.

    6. You understand and agree that the discussion forums are to be used only for non-commercial purposes. You may not solicit funds, promote commercial entities or otherwise engage in commercial activity in our discussion forums.

    7. You acknowledge and agree that you use and/or rely on any information obtained through the discussion forums at your own risk.

    8. For any content that you post, you hereby grant to IP Watch the royalty-free, irrevocable, perpetual, exclusive and fully sub-licensable license to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, perform and display such content in whole or in part, world-wide and to incorporate it in other works, in any form, media or technology now known or later developed.

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