South Africa’s Proposed Copyright Fair Use Right Should Be A Model For The World 24/07/2018 by Intellectual Property Watch 3 Comments Copyright laws the world over are under massive pressure to reform to fit the digital environment. One key area often in need of reform is in the exceptions to copyright that enable the digital practices. Without exceptions, common practices may be illegal, such as sharing photos on social media, making technical copies to send and stream, and uploading excerpts to closed networks for student access, writes a group of experts on the issue.
Native Tribes Can’t Shield Patents From USPTO Review 21/07/2018 by Steven Seidenberg for Intellectual Property Watch 1 Comment The strategy was breathtaking in its boldness. Just days before the USPTO was to hear a challenge to Allergan Inc.’s patents on a dry-eye drug, Restasis, the company transferred those patents to a Native American tribe; the tribe then sought to dismiss the USPTO proceedings by asserting sovereign immunity. Following this action, a number of other patentees made similar transfers to Native tribes, in order to protect their patents. More patentees were poised to do so, should this ploy prove effective. It, however, did not. On 20 July, the Federal Circuit Court of Appeals ruled the tribe’s sovereign immunity did not protect its patents from USPTO review. The ruling thus kept intact a key component of America’s patent system.
Dangers Of Means Plus Function Limitations In US Patent Prosecution 19/07/2018 by Intellectual Property Watch 1 Comment Broad patent protection is one of the goals when securing patent protection for inventions (i.e., new products and services). However, issues start to arise when the claim language becomes too broad. For example, broad claims might be construed as a means plus function limitation against the intentions of the patent prosecutor, and in some cases, those patents are invalidated as being indefinite. At least, this is the case with US patent prosecution. The patent laws of other jurisdictions treat means plus function style of claiming differently, and in my experience, less detrimental to the validity of the patent, writes James Yang.
Global Innovation Divide: Can Investment In Innovation Bridge The Gap? 17/07/2018 by David Branigan and William New, Intellectual Property Watch 1 Comment The Global Innovation Index 2018, launched on 10 July in New York, has lauded the rise of China as a model for how other low and middle-income economies can advance on innovation. Amid this optimism, however, the global innovation divide remains in step with the global income divide, raising questions for how to bridge this gap. The new index shows signs of progress.
Outcome Of ITU Global Regulators Symposium: Interview With Brahima Sanou 16/07/2018 by Intellectual Property Watch Leave a Comment Heads of national information and telecommunications regulatory authorities gathered in Geneva for an annual symposium, and agreed on global best practice guidelines for the new digital ecosystem. After the meeting, Brahima Sanou, head of the UN International Telecommunication Union Development Bureau answered Intellectual Property Watch on the outcome of the meeting, and topics such as privacy and the digital divide.
Excessive Pricing And Sham Patent Litigation: The Pfizer And AbbVie Decisions 03/07/2018 by Intellectual Property Watch 2 Comments Frederick Abbott writes: Competition law is a critical tool in seeking to maintain some semblance of reasonable pricing in the pharmaceutical market. It is particularly important as legislators around the world appear extremely hesitant to address pharmaceutical pricing in meaningful ways, regrettably influenced by well-funded lobbying. Two recent competition law decisions discussed below illustrate the importance of and challenges to regulating the pharmaceutical sector. In the first, the UK Competition Appeal Tribunal (CAT) partially upheld and partially reversed and remanded (pending briefing) a decision by the Competition and Markets Authority (CMA) fining Pfizer and Flynn close to £90 million for abuse of dominant position in the excessive pricing of an anti-epilepsy drug. The CAT decision is problematic because it creates unnecessary and unwarranted hurdles to findings of excessive pricing in the UK. In the second decision, the US Federal Trade Commission succeeds in proving that AbbVie engaged in abuse of monopoly power by engaging in sham patent litigation against two generic producers in order to delay market entry of competitive products. The Federal District Court found that AbbVie’s patent lawyers by “clear and convincing” evidence had knowingly pursued patent infringement claims without chance of success for no other purpose than to delay market entry.
WTO Panel On Australia’s Tobacco Plain Packaging: A Fact Dependent Analysis Of TRIPS Art 20 03/07/2018 by Intellectual Property Watch 4 Comments The WTO Panel’s long-awaited Reports in the four complaints against Australia’s tobacco plain packaging measures were circulated on 28 June 2018, more than 4 years since Panel establishment. Australia’s victory was absolute. It successfully defended its measures against every claim. Yet closer analysis of the Panel’s reasoning regarding specific provisions such as Article 20 of the TRIPS Agreement may cause some concern for policy-makers given how much the Panel’s conclusions relied on its assessment of the facts and evidence before it.
On Questionable Legal Basis, US Court Expands Range Of Patentable Inventions 21/06/2018 by Steven Seidenberg for Intellectual Property Watch Leave a Comment For more than a decade, the United States has been making it harder to obtain patents. A series of court rulings have steadily restricted the types of inventions that are patent-eligible. The tide, however, may be now turning. The Federal Circuit’s recent decision in Vanda Pharmaceuticals v. West-Ward Pharmaceuticals has opened the way to many future patents on biotech and personalized medicine. The ruling is a big step forward for the biotech and medical industries, and perhaps for patients seeking better medical care. But there’s a catch. Vanda could be overturned because it conflicts with the US Supreme Court’s 2012 decision in Mayo Collaborative Services v. Prometheus Laboratories.
The Myth Of IP Incentives For All Nations – Q&A With Carlos Correa 20/06/2018 by Intellectual Property Watch 15 Comments Dr Carlos Maria Correa, an Argentinian economist and lawyer, is globally renowned for his expertise on international trade, intellectual property, health, technology transfer, investment policy and especially their impact on developing countries. He has authored several books and academic articles and been a visiting professor at several universities. Additionally, he has consulted with many United Nations agencies, the World Bank, and other regional and international organisations and has advised several governments on intellectual property, innovation policy and public health. Correa was a member of the UK Commission on Intellectual Property, of the Commission on Intellectual Property, Innovation and Public Health established by the World Health Assembly and of the FAO Panel of Eminent Experts on Ethics in Food and Agriculture. Currently, he is the Director of the Centre for Interdisciplinary Studies on Industrial Property and Economics Law, at the University of Buenos Aires. He takes over as the Executive Director of the Secretariat of the Geneva-based South Centre from 1 July 2018. Correa recently engaged in an interview with Patralekha Chatterjee for Intellectual Property Watch. [Note: this interview is number two of two. The first was with Dr Othoman Mellouk.]
Прекратить неавторизованный доступ к генетическим ресурсам (а именно, Биопиратство): принцип ограниченной открытости 19/06/2018 by Intellectual Property Watch Leave a Comment «Доступ к генетическим ресурсам» и «справедливое и честное распределение выгод от их использования» были камнем предкновения на всех тринадцати Конференциях сторон-участников Соглашения Организации Объединенных Наций от 1993 года о Биологическом разнoобразии (CBD). Слова в кавычках составляют третью задачу договора, которая переплетена с двумя первыми, а именно с задачей консервации и устойчивого использования. По первым буквам английского названия эта задача сокращенно обозначается как «ABS». Несмотря на 25 лет усилий и при размерах био-экономики порядка 1 триллиона долларов [1], было заключено немного контрактов [2]. И в этом малом количестве контрактов денежная часть так незначительна, что их участники не пожелали ее обнародовать. «Закон ABS Бразилии» от 2015, который вошел в силу 6 ноября 2017, позволяет чтобы отчисления от суммы продаж составляли всего одну десятую процента[3]. Используя выражение известного ученого-законоведа, потребитель платит «пшик» авторам биоресурсов.