WTO TRIPS Council Agenda: IP Key For New Businesses, Competition Law To Counter Abuses

World Trade Organization intellectual property committee members gather this week for their annual autumn session. On the agenda are now-usual topics looking at intellectual property from two perspectives: IP as an indispensable tool for innovation in particular in the new economy, and IP as a potential threat to access if misused. In addition, India has put forward further questions on goods in transit to the European Union in its directive on custom enforcement of IP rights.

The Council for Trade-Related Intellectual Property Rights (TRIPS) will take place from 8-9 November. On 7 November, a side event organised by a number of countries will visit the theme of the societal value of IP.

Australia, the European Union, Japan, Switzerland, Taiwan, and the United States on 19 October requested an agenda item on the societal value of IP in the new economy – IP and new business. Brazil joined as a co-sponsor on 2 November. This follows two prior discussion papers on the theme of the societal value of IP in the new economy presented by the group this year. The paper for discussion next week [pdf] underlines the “strategic importance” of IP protection in the process of creating a new and innovative business.

According to the paper, IP “can play a key role in overcoming financing constraints” by providing credibility for investors. “A start-up’s patenting activities can positively shape an investor’s estimates of the firm’s future value,” it says.

Secure national and international business environments providing adequate remedies against IP infringement are important, the paper says, adding that appropriate protection may be “a fundamental prerequisite for markets being able to function today.”

Importance of Competition Law for Public Health

South Africa requested an agenda item entitled, Intellectual Property and the Public Interest: “Promoting Public Health Through Competition Law and Policy,” proposing to continue the discussions started at the last session of the TRIPS Council in June (IPW, WTO/TRIPS, 7 June 2018). Brazil co-sponsored the South African proposal on 2 November.

“IP protection per se cannot be presumed to confer market power or to indicate anti-competitive behaviour,” the paper states [pdf]. According to the co-sponsors of the June paper (Brazil, China, India, and South Africa) several TRIPS articles contain competition-related provisions: (6.1 [Exhaustion], 8 [Principles], 31(k) [Other Use Without Authorization of the Right Holder], and 40 [control of anti-competitive practices in contractual licences]).

The South African paper states that anti-competitive behaviour may allow “a broader range of remedial action than some other public health-related flexibilities associated solely with patents.” However, the paper says, the use of competition law is difficult for many developing countries which may not have the technical capacity to enforce it.

According to the paper, competition law could prevent detrimental uses of IP such as “overly restrictive conditions in medical technology licensing;” preventing generic competition through anti-competitive patent settlement agreements; mergers between pharmaceutical companies leading to “undesirable concentration of research and development, and IPRS [IP rights]”; and bid rigging in public procurement.

The sponsors of this item are asking WTO members to share their national experiences on how competition law is used to achieve public health objectives.

Further Questions on EU Directive

India tabled questions [pdf] to the European Union on the enforcement of IP rights regarding goods in transit. Questions are focused on trademark issues and EU Regulation 608/2013 [pdf] on customs enforcement of IP rights.

In particular, India would like to know if goods entering the EU, which are not meant to be placed for free circulation in the EU market, could be subjected to suspension of release or detention on suspicion of trademark infringement. In that case, India requests the EU to explain the procedure.

EU Notice 2016/C244/03 [pdf] [Customs enforcement of Intellectual Property Rights concerning goods brought into the customs territory of the Union without being released for free circulation including goods in transit] states that “The detention of goods means holding back the goods and allowing the right holder to have access to confidential information and inspect the goods in question..” This provision concerns goods suspected of infringing IP rights.

India has several questions on the EU notice, in particular “the source of the said confidential information;” the nature of such confidential information to be shared with the right holders; the purpose of giving the right holders the access to such information and to inspect the suspected goods, and “how does the legal regime of the EU ensure that the sharing of confidential information with the right holders is not subjected to misuse.”

Side Event on Societal Value of IP

Prior to the TRIPS Council meeting, on 7 November a group of countries calling themselves the Friends of Innovation and Intellectual Property is organising a side event on the societal value of intellectual property in the new economy, which is the 2018 theme for the group for discussions at the TRIPS Council.

According to a source, the group includes the United States, Switzerland, Japan, Australia, Canada, the European Union, Taiwan, Hong Kong, Russia, Singapore, South Korea, and New Zealand, and is soon to be joined by Chile.

The side event will focus on the incentivising role of intellectual property and will gather several panellists: World Intellectual Property Organization Chief Economist Carsten Fink; Kinnos CEO Jason Kang, who received the US Patent and Trademark Office Patent for Humanity award; Keith Nurse from the University of the West Indies; and Jonas Pollard from Hemolytics, Switzerland.

New IP-Related Requests for Consultation

Also on the agenda are recent developments within the WTO relating to intellectual property, for members’ information. This includes in particular, a request for consultations [pdf] by the EU concerning certain measures on the transfer of technology in China made in June.

On 4 October, Qatar requested consultations [pdf] on alleged failure by Saudi Arabia to “provide adequate protection of intellectual property rights, in particular with respect to intellectual property rights held (or applied for) by entities based” in Qatar.

 

Image Credits: Catherine Saez