In assessing the potential impact that treating intellectual property (IP) as an investment asset can have on the IP policy space available to states, it is essential to draw a distinction between the rules governing the expropriation of investment assets and the rules relating to the fair and equitable treatment (FET) of investments. This distinction is necessary because, in some investment agreements, measures relating to IP are excluded from the scope of the rules on expropriation, whereas there is usually no such exclusion of IP from the scope of the FET standard. Moreover, the FET standard can be described as a standard whose content and scope is ambiguous, thus making it a potentially useful tool in the hands of an investor seeking to challenge an IP measure adopted by a state. This chapter therefore seeks to examine the potential impact that the FET standard can have on the IP policy space available to states. Using the two recent decisions of investment tribunals in the cases of Philip Morris v Uruguay and Eli Lilly v Canada as case studies, the chapter will critically examine the extent to which a claim based on a denial of FET can narrow down the policy space available to states to design their national IP laws in a way that suits their level of development and societal needs.
Emmanuel Kolawole Oke
The objective of this chapter is to critically re-examine the 1996 decision of the Constitutional Court of South Africa with regard to the constitutional status of intellectual property rights in South Africa in the light of the current debates on the relationship between intellectual property and human rights in South Africa. The chapter equally questions the view of those who contend that intellectual property rights fall within the scope of the constitutional protection of the right to property in South Africa. This will be done by critically assessing some of the cases in which South African courts have dealt with the interface and tensions between intellectual property rights and other human rights. Furthermore, the chapter contends that, even if one takes the view that intellectual property rights fall within the scope of the constitutional protection of the right to property, this should not constitute an impediment to the implementation of measures aimed at protecting the public health, such as measures relating to the plain packaging of tobacco products in South Africa.
Emmanuel Kolawole Oke
The question of when an intellectual property right should be defined as an investment has recently been addressed by investment tribunals in two recent cases. Using these two recent decisions as case studies, this chapter seeks to address two key questions. One, in deciding whether or not an intellectual property right should be defined as an investment, should contribution to the economic development of the host state be part of the objective criteria? Two, what role, if any, can Articles 7 and 8 of the TRIPS Agreement play in the determination of whether an intellectual property right should be defined as an investment pursuant to the objective criteria? The chapter proposes a minimalist approach to defining what constitutes an investment and it concludes with the view that, in determining whether or not an intellectual property right should be defined as an investment, the object and purpose of international investment law should be synchronised with the object and purpose of international intellectual property law.
Bayer Corporation & Anr v Union of India & Ors, Special Leave to Appeal (C) No(s) 30145/2014
Emmanuel Kolawole Oke
In November 2014, the scope of the regulatory review exemption contained in section 107A(a) of the Indian Patents Act was considered by the Delhi High Court in the case of Bayer Corporation v Union of India. In this case, which is a sequel to the compulsory licence that was earlier granted to Natco in respect of Bayer's patented drug in 2012, Natco sought to export 1 kilogramme of the patented active pharmaceutical ingredient to a company in China. Bayer contended that this was in breach of the terms of the compulsory licence and equally outside the scope of section 107A(a). Natco however argued for a broader interpretation of section 107A(a) in a manner that will permit the exportation of patented active pharmaceutical ingredients to producers of generic drugs solely for the purposes of generating information required for obtaining regulatory approval. In accepting Natco's broader interpretation of section 107A(a), the Delhi High Court incorporated a model of human rights into its decision by being mindful of the implications that a restrictive interpretation of section 107A(a) could have on the production of cheaper generic drugs and access to medicines. This decision reinforces India's crucial position as the ‘pharmacy of the developing world’.