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Intellectual Property

Published online by Cambridge University Press:  20 January 2017

Enrico Bonadio
Enrico Bonadio*
Affiliation:
University of Abertay, Scotland
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Abstract

This section is devoted to giving readers an inside view of the crossing point between intellectual property (IP) law and risk regulation. In addition to updating readers on the latest developments in IP law and policies in technological fields (including chemicals, pharmaceuticals, biotechnology, agriculture and foodstuffs), the section aims at verifying whether such laws and policies really stimulate scientific and technical progress and are capable of minimising the risks posed by on-going industrial developments to individuals’ health and safety, inter alia.

Type
Reports
Information
European Journal of Risk Regulation , Volume 1 , Issue 1 , March 2010 , pp. 72 - 76
Copyright
Copyright © Cambridge University Press 2010

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References

1 Global warming is the increase in the average temperature of the Earth's near-surface air and oceans since the mid-20th century and its projected continuation. Global surface temperature increased between the start and the end of the 20th century. The Intergovernmental Panel on Climate Change (which is the leading body for the assessment of climate change) has concluded that most of the observed temperature increase since the middle of the 20th century was caused by increasing concentrations of greenhouse gases resulting from human activity, such as fossil fuel burning and deforestation.

2 Technology transfer is mentioned in certain parts of the Copenhagen Accord, such provisions consisting of mere “soft law” however. For example Article 11 states that “in order to enhance action on development and transfer of technology we decide to establish a Technology Mechanism to accelerate technology development and transfer in support of action on adaptation and mitigation that will be guided by a country-driven approach and be based on national circumstances and priorities.” Article 3 provides that “we agree that developed countries shall provide adequate, predictable and sustainable financial resources, technology and capacity-building to support the implementation of adaptation action in developing countries.” See also Article 5 and 8.

3 Lee, Bernice/Iliev, Ilian/Preston, Felix, Who Owns Our Low Carbon Future? Intellectual Property and Energy Technologies, 2009, available on the Internet at http://www.chathamhouse.org.uk/files/14699_r0909_lowcarbonfuture.pdf, p. 59 (last accessed on 20 January 2010).

4 The Convention on Biological Diversity has three main goals: (i) conservation of biological diversity, (ii) sustainable use of its components and (iii) fair and equitable sharing of benefits arising from genetic resources (including genetic resources technology). In other words, its objective is to develop national strategies for the conservation and sustainable use of biological diversity. This treaty is often seen as the key document regarding sustainable development. I dealt with the technology transfer issues of the Biodiversity Convention in my last book, see Bonadio, Enrico, Sistema Brevettuale ‘TRIPS’ e risorse genetiche – Esigenze commerciali e interessi pubblici (Napoli: Jovene 2008), at p. 239 Google Scholar.

5 Barton, John, IP and Climate Technology, 2007, available on the Internet at http://www.chathamhouse.org.uk/files/13696_161107_ipclimate.pdf (last accessed on 20 January 2010), at p. 4.

6 TRIPs Agreement was signed by all World Trade Organization (WTO) countries and covers all types of intellectual property including patents, plant varieties, industrial designs, copyright and trademarks. It requires IPRs to be protected in all WTO member countries. For a thorough analysis of the TRIPs Agreement see Gervais, Daniel, The TRIPS Agreement: Drafting History and Analysis, 3rd ed. (London: Sweet & Maxwell 2008)Google Scholar.

7 Protection of confidential information is provided by Article 39 of the TRIPs Agreement.

8 The Patent Cooperation Treaty – also known as PCT – is an international patent law treaty administered by WIPO. It provides a unified procedure for filing patent applications to protect inventions in each of its contracting States. A patent application filed under the PCT is called an international application, or PCT application.

9 Biomass, a renewable energy source, is biological material derived from living or recently living organisms, such as wood, waste, and alcohol fuels. Biomass is usually plant matter grown to generate electricity or produce heat. For example, forest residues (such as dead trees, branches and tree stumps), yard clippings and wood chips may be used as biomass. Biomass may also include plant or animal matter used for production of fibres or chemicals as well as biodegradable wastes that can be burnt as fuel.

10 Concentrated solar power is meant to provide cheaper and more scalable electricity generations in regions with good levels of sunlight. Coal power makes a significant contribution to power generation in most developed and developing countries.

11 Carbon capture and storage is a means of mitigating the contribution of fossil fuel emissions to global warming, based on capturing carbon dioxide from large point sources such as fossil fuel power plants, and store it away from atmosphere by different means.

12 All the above data are mentioned in Lee/Iliev/Preston, Who Owns Our Low Carbon Future?, supra note 3, pp. 12 et sqq.

13 Branstetter, Lee, “Do stronger patents induce more local innovation?”, in Maskus, Keith and Reichman, Jerome (eds), International Public Goods and Transfer of Technology Under a Globalized Intellectual Property Regime (Cambridge: UK Cambridge University Press 2005), pp. 309 et sqq., at p. 319Google Scholar. The importance of protecting IPRs for enhancing technology transfer has often been stressed by the US government, see the Minutes of meeting of the TRIPs Council, WTO Doc. IP/C/M/29, at p. 70.

14 For example, imposing high prices for patented technologies prevents many companies and entities, both private and public (especially in developing countries), from purchasing the same: which clearly hinders the dissemination of such technologies. See Walker, Simon, The TRIPS Agreement and the Public Interest (Washington: Island Press 2001), at p. 18 Google Scholar.

15 Correa, Carlos, “Can the TRIPS Agreement foster technology transfer to developing countries?”, in Maskus, and Reichman, (eds), International Public Goods and Transfer of Technology, supra note 13, pp. 227 et sqq., at p. 232Google Scholar.

16 The fact that technology transfers are driven also by factors other than IPR protection has been stressed by Maskus, Keith, Encouraging International Technology Transfer, UNCTAD –ICTSD Project on IPRs and Sustainable Development, 2004, available on the Internet at http://www.iprsonline.org/unctadictsd/docs/CS_Maskus.pdf (last accessed on 20 January 2010), at pp. 3, 19, 26 and 29. As far as the relationship between IPRs protection and technology transfer is concerned see also Dutfield, Graham, Intellectual Property, Biogenetic Resources and Traditional Knowledge, (London: Earthscan 2004), pp. 82 et sqqGoogle Scholar.

17 Correa, “Can the TRIPS Agreement foster technology transfer to developing countries”, supra note 15, at p. 228. It has also been noted that in certain developing countries (such as Nigeria, Chile and Mexico) the opposite scenario – i.e. the introduction of systems of IPRs protection (particularly in the pharmaceutical field) – had a negative impact on the flow of investments towards said States. See Dutfield, Intellectual Property, Biogenetic Resources, supra note 16, at p. 199.

18 Abbott, Frederick, Innovation and Technology Transfer to Address Climate Change: Lessons from the Global Debate on Intellectual Property and Public Health, 2009, available on the Internet at http://www.iprsonline.org/New%202009/innovation-and-technologytransfer-to-address-climate-change.pdf (last accessed on 20 January 2010), at p. 21. See also Barton, John, Intellectual Property and Access to Clean Energy Technology in Developing Countries. An analysis of Solar Photovoltaic, Biofuel and Wind Technologies, 2007, available on the Internet at http://www.iprsonline.org/New%202009/CC%20Barton.pdf (last accessed on 20 January 2010).

19 Abbott, Innovation and Technology Transfer to Address Climate Change, supra note 18, pp. 21 et sqq.

20 Some examples of litigation in this field are provided by Lee/Iliev/Preston, Who Owns Our Low Carbon Future?, supra note 3, pp. 54 et sqq.

21 Lee/Iliev/Preston, Who Owns Our Low Carbon Future?, supra note 3, pp. 3 et sqq.

22 Barton, Intellectual Property and Access to Clean Energy Technology in Developing Countries, supra note 18, at p. 35.

23 Lee/Iliev/Preston, Who Owns Our Low Carbon Future?, supra note 3, at p. 60.

24 Brewster, Amanda/Chapman, Audrey and Hansen, Stephen, “Facilitating Humanitarian Access to Pharmaceutical and Agricultural Innovation”, Innovation Strategy Today (2005), pp. 203 et sqq., at p. 205.

25 Barton, Intellectual Property and Access to Clean Energy Technology in Developing Countries, supra note 18, at p. 8.

26 Lee/Iliev/Preston, Who Owns Our Low Carbon Future?, supra note 3, at p. 59.

27 Abbott, Innovation and Technology Transfer to Address Climate Change, supra note 18, at p. 26.