Intellectual Property Rights and Technology Transfer Achim Seiler, Trade Consultant and Capacity Building Specialist, Kathmandu EU-Project: Trade and Private Sector Development (TPSD) TPSD is implemented by in cooperation with and

IPRs and Technology Transfer TRIPs-Agreement: Preamble: Recognizing the underlying public policy objectives of national systems for the protection of intellectual property, including developmental and technological objectives Recognizing also the special needs of the least-developed country Members in respect of maximum flexibility in the domestic implementation of laws and regulations in order to enable them to crreate a sound and viable technological base

IPRs and Technology Transfer TRIPs-Agreement, Article 6 : Exhaustion For the purposes of dispute settlement under this Agreement, subject to the provisions of Articles 3 and 4, nothing in this Agreement shall be used to address the issue of exhaustion of intellectual property rights.

IPRs and Technology Transfer TRIPs-Agreement, Article 7 : Objectives 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 techological knowledge and in a manner conducive to social and economic welfare, and to a balance of rights and obligations.

IPRs and Technology Transfer TRIPs-Agreement, Article 8 : Principles Members may, in formulating or amending their laws and regulations, adopt measures necessary to protect health and nutrition, and to promote the public interest in sectors of vital importance to their socio-economic and technological development, provided that such measures and consisitent with the provisions of this Agreement.

IPRs and Technology Transfer TRIPs-Agreement, Article 8 : Principles (c-td) Appropriate measures, provided they are consistent with the provisions of this Agreement, may be needed to prevent the abuse of intellectual property rights by right holders or to resort to practices which unreasonably restrain trade or aversely affect the international tranfer of technology.

IPRs and Technology Transfer TRIPs-Agreement, Article 66.2 : LDC-Members Developed country Members shall provide incentives to enterprises and institutions in their territories for the purpose of promoting and encouraging technology transfer to least- developed country Members in order to enable them to create a sound and viable technological base.

IPRs and Technology Transfer TRIPs-Agreement, Article 67: Technical Cooperation In order to facilitate the implementation of this Agreement, developed country members shall provide, on request and on mutually agreed terms and conditions, technical and financial cooperation in favour of developing and least-developed country Members. Such cooperation shall include assistance in the preparation of laws and regulations on the protection and enforcement of intellectual property rights as well as on the prevention of their abuse, and shall include support regarding the establishment or reinforcement of domestic offices and agencies relevant to these matters, including the training of personnel.

Decision of the TRIPs Council Decision of the Council of TRIPs of 19 February 2003: Developed country Members shall submit annual reports on actions taken or planned in pursuance of their commitments under Article 66.2 The reports on the implementation of Article 66.2 shall, subject to the protection of business confidential information, provide inter alia the following information:

Decision of the TRIPs Council (II) a) an overview of the incentive regime put in place to fulfill the obligations of Article 66.2, including any specific legislative, policy and regulatory framework b) identification of the type of incentive and the government agency or other entity making it available c) eligible enterprises and other institutions in the territory of the Member providing the incentives d) any information available on the functioning in practice of theses incentives

Decision of the TRIPs Council (III) Decision of the Council of TRIPs of 29 November 2005: With a view to facilitating targeted and financial cooperation programs, all the least-developed country Members will provide to the Council of TRIPs, preferably by 1 January 2008, as much information as possible on their individual priority needs for technical and financial cooperation in order to assist them taking steps necessary to implement the TRIPs agreement (Par. 2)

EU-approach to Art. 66.2 (I) The private and commercial sector is clearly the main source of technologies, and in this context, TT is often one component of a more complex project, rather than a stand-alone activity In their efforts to encourage and promote TTs, governments are limited by two factors: they do not own the vast majority of the technologies and they cannot force the private sector to transfer its technologies

EU-approach to Art. 66.2 (II) Government incentives to undertake TTs to LDCs are only one of many factors relevant to companies´ decisions on where to direct FDI and TTs. Other factors like macroeconomic stability, a safe legal framework, and a well-functioning government administration are also important drivers Incentives can only take the form of encouragement, promotion, and facilitation of the most fruitful projects

EU-approach to Art. 66.2 (III) From the point of view of the EU the following incentives are relevant and must be activated by governments: Promotion of projects such as FDI, subcontracting, licensing, franchising Improvement of access to techniques and industrial processes Support of joint projects Provision of training in management of technology and production methods Improvement of absorptive capacities Encouragement of trade in technological goods

An LDC approach to tackle the 66.2 issue (Rwanda) IP Policy is predicated on six interrelated objectives which are: Increasing technological literacy and advanced scientific and technological skills that in turn would increase innovation capacity. Promotion of innovation and creativity including minor and incremental innovations to provide an opportunity for the largets number of individuals and firms to participate in innovation Increasing acces to foreign and local technology by local firms and research institutions

An LDC approach to tackle the 66.2 issue (Rwanda) (II) IP Policy is predicated on six interrelated objectives which are: d) Improving access to IP-based essential goods and services especially health and food e) Facilitating investments in innovative and creative activities Enhance the protection of traditional knowledge and facilitate equitable access to genetic resources and benefit-sharing (IP/C/W/548, Communication from Rwanda of 7 June 2010)

Diagnostic Assessment Checklist: TRIPs and Techology Transfer Profile and characteristics of innovation, creativity and techology transfer Institutions and initiatives for promoting innovation, creativity and technology transfer Mechanisms used by the IP office to enhance public awareness and understanding of intellectual property as well as use and management of IP by SMEs and the private sector Who are the key targets of IP office public information or out-reach activities? Opportunities to work with (complementing) key partners and stakeholders Are successful examples of other domestic government programs and foreign IP organizations exploited for enhancing domestic IP awareness?

Diagnostic Assessment Checklist: TRIPs and Techology Transfer (II) Profile and characteristics of innovation, creativity and techology transfer - structure of formal and informal innovations in Nepal - shape of the R&D landscape - focus of main public and private R&D programs - main sources of technology - innovation survey - are local innovations IP protected and protectable

Diagnostic Assessment Checklist: TRIPs and Techology Transfer (III) B) Institutions and initiatives for promoting innovation, creativity and technology transfer - Government research facilities and R&D grant award programs for research and development Government policies, incentive programs, and subsidies Research and educational use exemptions in patent and copyright law Inventors, authors, composers, writers, musicians, or handicraft societies (collecting royalties?) Main needs for strengthening public and privete sectors policy, programs and institutions Explicit benefits from the TRIPs provisions in Art. 66.2

Diagnostic Assessment Checklist: TRIPs and Techology Transfer (IV) Mechanisms used by the IP office to enhance public awareness and understanding of intellectual property as well as use and management of IP by SMEs and the private sector - Active outreach and information campaigns - Initiatives to increase the use of IP by SMEs - invention/innovation fairs, prizes, shows - are awareness raising measures incorporated into national private sector development programs? - access to a modern and comprehensive patent information system for nationals, companies and research organisations - How widely used are patent informations?

Diagnostic Assessment Checklist: TRIPs and Techology Transfer (V) Who are the key targets of IP office public information or out-reach activities? General public Musicians, artists, performers Inventors and innovators Politicians and senior fovernment policy advisors Judiciary and enforcement agencies Government officials, incl. treasury Academic community Business community and their associations Organized consumers

Diagnostic Assessment Checklist: TRIPs and Techology Transfer (VI) Opportunities to work with (complementing) key partners and stakeholders National research organizations University and academic R&D relevant to the private sector National royalty collecting societies National or regional associations of IPR professionals Associations of inventors, artist, lawyers, engineers

Diagnostic Assessment Checklist: TRIPs and Techology Transfer (VII) Are successful examples of other domestic government programs and foreign IP organizations exploited for enhancing domestic IP awareness? - Examples of successful public awareness activities - Education and awareness activities of IPR offices in other countries - Support by international associations of IPR practitioners, IPR holders and inventors - Regional economic cooperation programs that may support national IPR awareness activities

TT enhancing approaches LDCs should use Prior art Bolar Exception Research Exemption Best mode requirement Parallel imports Utility model protection

More specifically: Provide exceptions for: Acts done privately and on a non-commercial scale, or for a non-commercial purpose Use of the invention for research Use of the invention for teaching purposes Experimentation on the invention to test or improve on it Preparation of medicines under individual prescriptions Experiments made for the purposes of seeking regulatory approval for marketing of a product after the expiration of a patent Use of the invention by a third party that had used it bona fide before the date of the application of the patent

DON’t: do nothing, just react Basic approaches 1.imitate and catch up 2. innovate and catch up 3. wait and imitate (2nd round) 4. wait and innovate 5. don’t wait but integrate 6. act and attract 7. leap-frogging 8. provide for an innovation-friendly environment 9. provide for the instruments to prevent abuses DON’t: do nothing, just react bbb

Thank You Seiler.achim@yahoo.de