Happy World IP Day!

Today is the sixth World IP Day. The WIPO site states that:

"World Intellectual Property Day provides an opportunity to reflect on how intellectual property (IP) touches all aspects of our lives: How copyright helps bring music to our ears and art, films and literature before our eyes; how industrial design helps shape our world, and how trademarks provide reliable signs of quality; how patenting helps promote ingenious inventions that make life easier, faster, safer – and sometimes completely change our way of living. "

As a supporter of IP, although not an unquestioning one, I broadly welcome such initiatives. IP often meets challenges from two angles: the first criticising its extreme implications, such as in accessing medicines and TK; and the second from those involved in innovation and creativity who are unaware of IP and what it could achieve for them and their business.

World IP Day, and its suggested initiatives, are of great assistance in addressing the second category. However, some of the day's rhetoric, including that stressing the value of IP in respect of ideas (hhmm thought IP couldn't and shouldn't protect ideas), and the wholehearted assumption that IP does encourage innovation and creativity, is rather unbalanced. Will it serve only to entrench positions in the first category battle?

Microsoft and the Commission - the next round

Only those of us on Mars could fail to be aware of the ongoing hearing in the Court of First Instance where Microsoft are seeking to annul the 2004 Commission finding that Microsoft has abused a dominant position in respect of failing to share operating systems information, and bundling in relation to Media Player.

The hearing is inevitably proving somewhat fraught for those involved, according to press reports. We await with interest any reasoned analysis on the relationship between article 82 and IP rights. Questions of market definition, what IS abuse, and the importance of IP (shoudn't the Commission have said more than just requring a payment if its order involved a sharing of IP?) could, and should, be answered.

March/April 2006 - busy times for Business and Human Rights

Thanks to my colleague Nicolas Jondet and to the ever useful Business & Human Rights Resource Centre for details of the First draft Interim report of the UN Special Representative on Human Rights and Business, and the, inevitably, mixed reaction to it.

The BHRRC site provided a full set of links. Key themes are the need for further research, including through the Business Leaders Initiative on Human Rights; the question of the precise responsibilities of states and corporations in respect of protecting human rights, and the relationships between them; the legal status of the UN Business Norms and their possible future roles; the need for clearer standards which are to be met by business and clearer tools by which this is to be done and monitored; and the need for some form of compulsory initiatives (whatever they may be, given the legal uncertainties as to the human rights responsibilities of corporations, and in imposing obligations on them under international law.)

No new issues seem to be raised - nor solutions proposed. However, there is a broad engagement, generally constructive, with the project from all sides. If this continues, the report in 2007 is awaited with interest. In particular, we look forward to suggestions and proposals which may be relevant to conduct of IP owners with a direct (or more controversially indirect) impact on the human rights of others - the rights to life (health?) of patients, the rights to information and expression, and to share in the benefits of science and culture.

Sportswear in the Court of Appeal

Thanks once again to the IPkat for prompt details of the Court of Appeal's decision in Sportswear v Stonestyle. The first instance decision involving the striking out of a defence based on an agreement in breach of article 81 because of, inter alia the lack of sufficient pleaded nexus between the alleged breach of article 81 and the alleged infringment.

The Court of Appeal's judgment gives an helpful overview of key early cases on the interface between IP and competition (Consten and Grundig, Sirena, Keurkoop v Nancy Kean), and the more recent Courage v Crehan on private actions for damages even when there has been a breach of competition law. There is also interesting detailed analysis of argument that, despite these and other cases and much commentary to the contrary, competition law should not provide a defence to IP infringment- it is a separate sword, rather than a shield. Finally there is consideration of Glaxo v Dowelhurst regarding whether combined trade mark infringement actions brought by several companies, arguably purusant to an agreement or concerted practice in breach of article 81, could constitute themselves a breach of article 81, such that this could be a defence to infringement. In that case, an amendment to this effect had been allowed.

The conclusions of all three judges are interesting. There is concern that introducing competition defences to IP actions, with the extra evidence this may require, will cause further delay and cost in an action. However, "convenience is not always the same as justice". There is also recognition that trade mark and competition law cannot "invariably" be compartmentalised - and that on the facts here the proposed article 81 defence, which could also strenghten section 12 TMA arguments, "was not unarguable for lack of a legally sufficient nexus". There could be a sufficient nexus in law and in fact - whether there was is a question for trial.

There is an important decision, particularly given our project's interest in developing the interface between IP and competition. The Court of Appeal still makes it clear that a nexus is required to be pleaded and must be proved on the facts - but notes that it is not clear that competition law can only provide a separate sword, not a shield (something arguably already established as a possibility in Intel v Via) . Will the greater openness to such arguments pave the way for the next Magill? Or will it be that much harder for an article 81 competition defence to succeed?

Private enforcement of competition law

I attended a workshop of the Competition Law Scholars Forum in Glasgow last week. As we are great advocates of crossing interdisciplinary boundaries, it was nice to meet so many competition specialists.

The subject was "Private Enforcement of Competition Law". An intense but enjoyable day covered many of the issues of private enforcement. It focussed on the EC Commission Green Paper presently in consultation phase, but also raised questions of standing, follow on claims, and the relationship between and reasons for public and private enforcement, particuarly in "de novo" actions where there has been no finding by a competition authority.

I find this most interesting: could it be argued by a generic manufacturer that it was abuse of a dominant position for a patent owner to refuse to supply a vital component or permit manufacture of patented goods by another? Could the patent be a defence? How important is the private loss of the manufacturer or, say, patients, as opposed to possible wider public disadvantage IF such actions did indeed lead to reduced R&D and patenting by patent holders?

US - China TRIPS dispute?

Thanks to the IPkat and Bloomberg for details of a possible complaint by the US against China to the WTO Dispute Settlement System, as a result of China's implementation of TRIPS.

We are very interested at the possible further use of the WTO fora in interpreting TRIPS and providing an alternative, or parallel, means of dispute resolution and development of IP jurisprudence. A clash of two such major powers, with huge interest in technology development and manufacturing, could reveal much of interest.

CIPH Report

Thanks to IP Watch for prompt and comprehensive overview of this report. It's hot off the press and I look forward to reading it (as well as the Civil Society report). In the meantime, over to IP Watch. ...

Civil Society Report on IP, Innovation and Health

Building on the last post, a substantial study has been published by Civil Society Groups on IP Innovation and Health. We look forward to digesting this, and comparing it with the forthcoming report of the WHO Commission on similar themes.

Opposition to Indian HIV Patent Application

Thanks to MSF for this concise overview of the status of Glaxo's application for an Indian patent for a fixed dose combination of 2 AIDS drugs. The application has been opposed in the pre grant phase. In addition to an obviousness challenge, it is argued that exclusive ownership of a pharmaceutical product (which is comparatively new to India) would increase prices and have negative impact on national health.

Perhaps not surprisingly, this argument has been refuted by Glaxo, and details of their arguments are provided here, thanks to IP Watch: http://www.ip-watch.org/weblog/index.php?p=255&res=1024&print=0.

We will be intrigued to see the legal attitude adopted to the health based arguments. As argued by Glaxo, would patenting itself create an obstacle to treatment? And is the question not more whether the commercial exploitation of the invention, as opposed to the patent itself, is objectionable on the basis of public health/public order questions? Further details as to the basis of the objection are welcome!

When is a generic not a generic - the US FTC to investigate

US pharmaceutical legislation grants an exclusivity period to the first generic competitor of a branded drug. An FTC enquiry is to investigate the impact of pharma companies taking advantage of their ability to themselves launch unbranded drugs (authorized generics) during this period. There is concern that this could stifle the competition hoped to be generated by the exclusivity available to the first generic manufacturer.

A reminder that there are always wheels within wheels of each particular situation. General calls for manufacture of generics, or in other fields parallel importing or exporting, will not necessarily resolve the problem. Step by step analysis, and realistic forward thinking, are required.

New Australian IP Bill

Thanks to the IPKat and IP Australia for details of a new piece of IP legislation presented to the Australian House of Representatives (lower house) - the Intellectual Property Laws Amendment Bill 2006. See also summary and links from Warwick Rothnie at http://homepage.mac.com/wrothnie/iblog/C1495955323/E20060330122201/index.html

Important features for our purposes are provisions to facilitate enforcement of IP, building on the ACIP Review of Enforcement of IP (and the US/Australia FTA) including the possibliity of exemplary damages for patent infringement. There are also provisions to try once again address the balance between patents and competition in the light of the Review of IP Legislation under the Competition Principles Agreement. These include the specific possiblity for grant of compulsory licence if there is a breach of part IV of the Trade Practices Act 1974 - including misuse of market power.

Also interesting is the introduction of provisions, similar to those in Canada, permitting "springboarding" - work relating solely to regulatory clearance of generic drugs during the patent terms, allowing rapid emergence of competition, and possibly cheaper drugs, upon expiry of the patent.

It will be interesting to see how these fare. If passed, it will also be noteworthy what use is made of the new competition law provisions. As Warwick Rothnie notes, perhaps the compulsory licence could have been ordered anyway under the TPA - but would new provisions make courts and parties bolder?