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IP-Watch Summer Interns

IP-Watch interns talk about their Geneva experience in summer 2013. 2:42.

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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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    Questions Follow Sharp Rise In Investor-State Disputes, Far-Reaching Cases

    Published on 10 April 2013 @ 11:43 pm

    By , Intellectual Property Watch

    At an unprecedented rate, private companies are using “investor-state” provisions in trade and investment agreements negotiated by governments to challenge foreign government regulations, often made on behalf of the public, a United Nations report has found. And the majority of target governments are developing or transition economies, most of the time being challenged by companies in developed countries.

    “The number of investment disputes brought to international arbitration reached a new peak in 2012, amplifying the need for public debate about the efficacy of the investor–State dispute settlement (ISDS) mechanism and ways to reform it,” the UN Conference for Trade and Development (UNCTAD) said about its new report.

    Investor-state clauses are intended to protect investors from surprise action by governments that go against those companies’ expections and undermine their investment. It is exceptional that companies can use treaties to directly challenge government policies, as all other elements of treaty disputes are limited to government-to-government challenges. Cases are handled through an arbitration panel.

    The report, entitled, Recent Developments in Investor–State Dispute Settlement (ISDS), was published today by UNCTAD. It found that 62 new cases were filed in 2012, “the highest number of known treaty-based disputes ever initiated in one year, confirming the increasing tendency of foreign investors to resort to investor–State arbitration.” UNCTAD keeps an ISDS database.

    “In 68 per cent of the new cases, the respondents are developing or transition economies,” an UNCTAD press release said, based on the report. “Although the number of cases filed by developing-country investors has increased, the majority of new cases (63 per cent) are still originating from developed countries.”

    There has now been a total of 518 cases filed in relation to treaties, with 95 countries having responded to one or more of these cases, it said. There are some 3,200 international investment agreements in existence today, most of which have investor-state mechanisms, UNCTAD said.

    EU-US FTA Outlook; Eli Lilly Case Under NAFTA

    Separately, a report in the Inside U.S. Trade newsletter said that “a draft text floated by the European Commission to member states last year on the investor-state dispute settlement (ISDS) provisions it will seek in future EU investment agreements contains similarities to the U.S. model bilateral investment treaty (BIT), especially in the area of transparency. However, it also includes differences that would have to be resolved in potential U.S.-EU trade talks.”

    The draft contains investor-state provisions related to transparency, arbitrator independence, binding interpretations of investment language by the parties, and a possible appellate mechanism, Inside U.S. Trade said, adding, “The commission is also intending to pursue these elements in a U.S.-EU deal, according to the commission’s draft negotiating mandate for the talks sent to member states last month.”

    Meanwhile, a case under the North American Free Trade Agreement (NAFTA) has prompted the concern of civil society groups that it might harm the public’s access to affordable medicines.

    In this case, pharmaceutical company Eli Lilly has issued a notice of intent to use the NAFTA investor-state mechanism to challenge Canada’s patent policy.

    US non-governmental group Public Citizen has prepared a briefing paper raising concerns about this case. The briefing paper is available here, or here [pdf]. 

    In the analysis, Public Citizen lists legal arguments against Lilly’s claim that Canada’s basis for granting patents violates NAFTA’s investment provisions, it said. For example, it said, “in addition to further dissecting Eli Lilly’s rather bizarre national treatment allegations and sweeping claim of a NAFTA-protected right to have expectations fulfilled … [the] paper takes on Eli Lilly’s confused claim that Canada’s patent policy amounts to expropriation by violating the Patent Cooperation Treaty (in which the company conflates standards for filing for a patent with standards for obtaining a patent).”

    The paper also raises concern about investment provisions in the ongoing Trans-Pacific Partnership agreement (TPP), which it said “would magnify NAFTA’s investor-state threat to patent policies, including the leaked TPP investment chapter’s proposed invocation of TRIPS, which could allow private corporations to directly challenge governments’ patent policies as alleged TRIPS violations.”

    “[T]he rather extreme FTA investor-state regime, slated for expansion in the TPP, threatens nations’ prerogative to determine their own patent standards,” the group said.

     

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

     


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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.

    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.

     

     
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