Contemplating The Future of TRIPs

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Contemplating The Future of TRIPs
FIU Summit of the Americas Center Intellectual
Property, Trade and Economic Development Seeking
Consensus March 7, 2006
Lauren V. Perez Vice President, Regulatory
Matters Sandler, Travis Rosenberg,
P.A. www.strtrade.com lperez_at_strtrade.com
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Lets First Talk About The Facts

• Many poor countries feel that the developed world
  is demanding too much in pressing the developing
  countries to bring their legislation up to
  western standards at huge costs whilst being
  almost unable to access any of the promised
  benefits.

• Intellectual Property (IP) theft costs U.S.
  companies between 200-250B a year in revenue
  and roughly 750,000 jobs to date. Counterfeit
  goods make up an estimated 5-7 of world trade,
  resulting in lost economic opportunities
  domestically and abroad. (source U.S. Chamber
  of Commerce)
•  

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Hypothesis
The future of TRIPs depends upon the success of
global efforts to eliminate piracy and
counterfeiting activity so that developed
countries are not placed at a competitive
disadvantage within the growing global economy
and in order to provide developing countries the
true wealth available through effective IPR
protection and enforcement
Counterfeiting and piracy are more profitable
than narcotics but without the risks they are
becoming the number one crime of the 21st century
The theft of intellectual property has become as
serious for society as the theft of physical
property. Not only has the problem grown in size
- now accounting for 600 billion per year in
counterfeit goods worldwide - but also in the
range of products and the geographic scope.
Knowledge-based industries are the keystone of
the economic strategies of many countries at
different stages of economic development.
Developed countries need them to create jobs
developing economies need them to move up the
value chain.
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The future of TRIPs depends upon being able to
depend upon the commitment of all member
countries, all of the time, to the objectives of
the Agreement
Hypothesis
The objectives of both the TRIPs Agreement and
the CBD contain a number of common elements the
fair and equitable sharing of the benefits
arising out of the utilisation of genetic
resources of the CBD, for instance, is
compatible with the TRIPs objectives of balance
of rights and obligations and mutual advantage
of producers and users of technological
knowledge. The CBD also mentions the objective
of transfer of technology, which is certainly
consistent with TRIPs objective of transfer and
dissemination of technology.
The protection and enforcement of intellectual
property rights 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 and in a manner conducive
to social and economic welfare, and to a balance
of rights and obligations.
It appears that the EU is asking the U.S.
Government, U.S. producers, and U.S. consumers to
subsidize EU producers through this claw back
of generic terms so that EU producers can charge
monopoly prices for their productsWhy should
U.S. consumers subsidize EU producers? (John
Dudas, Testimony before U.S. Congress discussing
the EU position on GIs, 7/22/03)
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Hypothesis
The future of TRIPs depends upon developed
countries ending their pursuit of self-serving
FTAs in order to ensure that TRIPs remains (or
becomes) a compromise reflective of both
developed and developing countries priorities
and of equal import to all member countries
It has been argued that developing countries
succeeded in creating a linkage between the
biodiversity regime and the patent regime and
that the US circumvents these debates through
bilateral agreements
Most provisions included in US FTAs are
TRIPs-equivalent, that is to say, literally
meaning they are duplicated from the TRIPs
Agreement. However, some are TRIPs-plus
provisions, including prescriptions for
patentability of second therapeutic uses of known
medicine, stronger protection for data submitted
to regulatory authorities, extensions to term of
protection, narrowing of the exceptions to the
rights conferred, additional conditions on the
use of compulsory licenses and prohibitions
against the international exhaustion doctrine
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Hypothesis
The future of TRIPs depends upon the elimination
of national IPR exhaustion policies as well as
the acceptance of compulsory licensing and
parallel importation as the only means to ensure
global competition which, in turn, will ensure
equal access to medicines, technologies and
knowledge
Compulsory Licensing and Parallel Importing Would
Guarantee Developing Countries Cost Effective
Medicines
Once an IPR owner is fairly compensated for
his/her IPR by virtue of a first sale of that
property anywhere in the world, the rest of the
world should be able to enjoy the invention,
profit from the technology and build upon the
ingenuity
National IPR exhaustion policies contradict any
claimed intention to support a global economy
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Hypothesis
The future of TRIPs demands that developed
countries recognize their vulnerabilities in a
knowledge based global economy in which IPRs can
easily be manipulated by developing countries
against IPR owners without measurable costs to
national populations
The great advantage of using TRIPS in retaliation
is its plausibility, effectiveness and legality,
and the socially acceptable effect that this
solution could generate. Instead of transferring
to society the onus of litigation by way of
over-taxing imported products from the target
retaliation county, society will benefit, for
example in greater access to medicine, culture,
entertainment and information.

• TRIPS confers great benefits to developed nations
  businesses in the pharmaceutical, biotechnology,
  information technology, software, and music
  arenas. It also advantages companies with famous,
  valuable brands.. Consequently, non-compliance
  with TRIPS obligations could inflict considerable
  loss to these sectors.

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Hypothesis
The future of TRIPs requires a genuine,
measurable commitment from all member countries
to foster policies promoting social welfare even
if this requires liberalization of intellectual
property rights
The WTO General Council on 6 November approved an
amendment to the TRIPS Agreement making permanent
a decision originally adopted in 2003 relating to
the problem of supply of generic versions of
pharmaceutical products to countries with
inadequate manufacturing capacity by permitting
exportation from countries producing pursuant to
compulsory licenses. The WTO's decision was
criticised by many civil society public health
and development which view the procedural
requirements in the system to be too cumbersome
and impractical, thus rendering it difficult if
not impossible to implement
The protection of IPRs under TRIPS presents a
paradox for international economic law in that it
runs against the basic tenets of liberalization
and favors monopoly restriction and control, say
human rights experts.
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Hypothesis
The future of TRIPs depends upon an
acknowledgement by the U.S. and other developed
nations that obtaining global consensus on
protection of Intellectual Property Rights is NOT
as important as seeking international
collaboration on efforts to treat fatal diseases,
decrease overwhelming poverty and eliminate world
hunger
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To Learn More About The Relationship Between
International Trade and Intellectual
Property Contact Lauren V. Perez Sandler, Travis
Rosenberg, P.A. lperez_at_strtrade.com or
305-267-9200, ext. 120