The emergence of market and data exclusivity standards for new pharmaceuticals and biologics in such mega trade agreements as the TPPA, CETA and perhaps the TTIPA, will destabilize the inherent flexibilities relied upon for the maintenance of public health. The TPPA is particularly notable for provisions on data exclusivity for biologics, with the CETA subtly incorporating the same, effectively delaying the early entry of follow-on biosimilars despite the difficulties involved in recreation. Although exclusivity is required in recognition of the tremendous efforts involved in originating data as well as the value of the data, a trade-off is necessitated, especially for the poorer countries such as the Sub-Saharan African (SSA) countries. Consequently, the SSA countries’ efforts to safeguard future public health imperatives may have to be guided by the following. Firstly, market and data exclusivity provisions in future agreement should be consistent with and not distortive of public health flexibilities. Secondly, there should be monitoring, data collection, and impact assessment of market and data exclusivity provisions on access to medicines before a conclusion of future agreements. Thirdly, an investor-state dispute settlement (ISDS) provision should not be emasculative of public health imperatives. Fourthly, focus should be centred on capacity building that fosters skill reservoirs necessary for the development of pharmaceutical manufacturing capacities.
Browse by title
Collins C Ajibo and Ndubisi A Nwafor
The EU regulations on geographical indications for wines establish a scheme that provides GI-like protection for an assortment of non-geographical words, phrases and initials known as ‘traditional terms’. These terms may only be used with wines with a GI according to specified conditions and they constitute an absolute ground for refusal of a trade mark application. The European Union has shown flexibility in allowing identical terms to be used with different wines from different EU member states and from third countries that conclude a bilateral wine agreement, but it has ceased to consider applications for recognition of the same terms from other countries. The EU scheme is inconsistent with WTO obligations, not in TRIPS but rather in the TBT Agreement and GATT 1994, because it is discriminatory and administered in an unreasonable manner, and it may also create an unnecessary obstacle to trade. The United Kingdom may decide to abandon this scheme after Brexit.
This article considers the issue of whether parallel traders and licensee overruns amounts to criminal infringement of trade marks in the United Kingdom. It examines the cases which have reached the Court of Appeal, the House of Lords and now the Supreme Court and suggests that its recent very short decision in R v C  UKSC 58 was wrongly decided.
Gabjo Kim, Yung Kim, Gyungtae Song, Dongju Sun and Sangsung Park
This study proposes a method for establishing an R&D strategy that can be used by R&D decision-makers in companies and countries in the display industry in order to develop an effective technology. In order to develop a technology tree for the display industry, the entire technology is classified into three main category levels (LCD, FD, and OLED), 19 subcategory levels, and 69 sub-subcategory levels, based on the opinions of the experts in the display industry and on the reports from related technologies. Next, the technology area is examined by conducting a patent indicator analysis on each of the 69 sub-subcategory levels and the technological life cycle is identified by applying the Bass diffusion model. Based on the results, we propose R&D strategies for decision-makers in the display industry, such as R&D investment, technology M&A, and monitoring strategy proposals.
Edited by Johanna Gibson
Geographical indications (GIs) are one of the most controversial categories of intellectual property rights. Due to the under-constructed theoretical basis and overlapping dimensions of law, economics, culture and social policy, doctrinal issues associated with GI protection are highly contentious, including the level of GI protection. Countries from the Old World and the New World are divided on this issue. One side claims a higher level of protection for all GIs, known as absolute protection, around the understanding that GIs are different from trade marks, while the other side supports GI protection to the extent of consumer confusion by analogy to trade mark protection.
Peter K Yu
This article explores what it means for the Chinese intellectual property system to hit 35. It begins by briefly recapturing the system's three phases of development. It discusses the system's evolution from its birth all the way to the present. The article then explores three different meanings of a middle-aged Chinese intellectual property system – one for intellectual property reform, one for China, and one for the TRIPS Agreement and the global intellectual property community.
In China, to enact or amend an intellectual property law, such as the Copyright Law, the Patent Law, the Trademark Law or the Unfair Competition Law is a complicated process, involving a number of competent administrations, the State Council, and the Standing Committee of the National People's Congress. Generally speaking, there are three steps to enacting or amending an intellectual property law. First, a competent administration, such as the National Copyright Administration (in charge of the Copyright Law), the State Intellectual Property Office (in charge of the Patent Law), or the State Administration of Industry and Commerce (in charge of the Trademark Law and the Unfair Competition Law), shall draft a law or amendment on the basis of their views. Secondly, the State Council shall develop its law or amendment on the basis of the drafting submitted by a competent agency and the suggestions or opinions of other administrative agencies. Thirdly, the Standing Committee of the National People's Congress shall review the drafted law or amendment by the State Council three times, making some necessary changes on the basis of its views, and then pass the law or amendment. Although the consensuses will be gathered by these three steps, it is time-consuming to pass or amend a law, taking about eight to ten years.
China is widely regarded as a norm taker of the global intellectual property regime dominated by industrialized nations. It is however likely that China will become a norm holder due to China's increasing strengths in high technology and innovation as well as its expanding outbound investment into foreign high-tech sectors. Globalization and the global intellectual property regime that serves it are defined by neoliberal capitalism. Chinese enterprises equipped with improved market experience will soon find these neoliberal, corporate interest-maximizing game rules very attractive. As a consequence, they may become a new norm holder of the current intellectual property regime, and perhaps a more predatory one.
Dong Huijuan and Lin Xiuqin
The Chinese Trademark Law, revised for the third time in 2013, was devised to achieve new goals and to move towards the stronger protection of right-holders. There are some changes or trends in the legislative and judicial practice worthy of attention, for instance placing greater emphasis on trademark use (including factual use), different interpretations of such use, changes in the recognition and protection of ‘well-known trademarks’, the ‘prior use’ defence, and so on. These alterations might cause new debates or discussion on some essential problems in trademark law. On the whole, Chinese Trademark Law has been amended towards ‘internationalization’ and market orientation.