1. UNCTAD/CD-TFT 1 Intellectual Property Rights and National Development Goals – Ensuring Innovation in Russia St. Petersburg/Moscow Study Tour 2008 Christoph Spennemann, Legal Expert Intellectual Property Team Division on Investment and Enterprise UNCTAD

2. UNCTAD/CD-TFT 2 Overview of presentation Intellectual property rights (IPRs) and innovation Multilateral IPRs: The TRIPS Agreement IPRs and innovation Striking a balance between exclusive rights and competition IPRs & Innovation in Russia

3. UNCTAD/CD-TFT 3 The TRIPS Agreement: Basic Principles TRIPS objectives Minimum standards of IP protection Flexibilities in implementation

4. UNCTAD/CD-TFT 4 TRIPS Objectives IPRs should contribute to The promotion of technological innovation; the transfer & dissemination of technology; to the mutual advantage of producers and users of technological knowledge IP protection is not an end in itself, but one means to promote public policy objectives

5. UNCTAD/CD-TFT 5 Minimum standards of IP protection TRIPS provides for mandatory minimum standards of protection in most IP categories In general, Members in domestic laws may not provide less protection than under TRIPS Members may provide higher protection than under TRIPS

6. UNCTAD/CD-TFT 6 Flexibilities in implementation TRIPS obligations are drafted in general terms Example: patents available for inventions that are new, inventive & industrially applicable (4 undefined terms) In order to become operational on national level, most TRIPS provisions need further elaboration by domestic law makers This leeway in implementation is referred to as « TRIPS flexibility »

7. UNCTAD/CD-TFT 7 IPRs and Innovation (1) IPRs: exclusive rights as incentives for inventors to invest in R&D But innovation also needs competition Competition as a main driver of product improvement New ideas are mostly developed on the basis of existing know-how « If I have seen farther, it is by standing on the shoulders of giants »

8. UNCTAD/CD-TFT 8 IPRs and Innovation (2) Governments must provide balance between need for IP protection and need for access by competitors to technology-related information (public domain) TRIPS: leeway where to draw the line between IP-protected area and public domain More exclusive rights  more innovation?

9. UNCTAD/CD-TFT 9 Patents as a Policy Measure Protection (P) vs. Innovation (I) Maximal innovation level Optimal protection level Minimal protection level P I Source: Swiss Federal Institute of Intellectual Property, October 2006

10. UNCTAD/CD-TFT 10 Striking a balance (1) Where is the optimal protection level to reach maximum of innovation? Historical evidence: no «one-size-fits-all» model (Europe, USA, Rep. Korea) Early stages of technological development require broad public domain for indigenous learning Advanced stages of development require higher level of protection of technological assets Even technologically advanced economies depend on competition and follow-on innovation

11. UNCTAD/CD-TFT 11 Striking a balance (2) US Federal Trade Commission (FTC) in 2003 Report: «Questionable Patents Are a Significant Competitive Concern and Can Harm Innovation» Patents granted for trivial inventions block access to know-how needed for competitive product improvement

12. UNCTAD/CD-TFT 12 Striking a balance (3) FTC Report example from computer industry: 90,000 different patents on microprocessors Patents held by more than 10,000 parties Many of these patents overlap  each patent blocks several others Result: dense web of overlapping patents («patent thickets») Companies seeking to commercialize technology have to pay considerable licensing fees or challenge blocking patents in costly & lengthy litigation

13. UNCTAD/CD-TFT 13 Striking a balance (4) Balance between IP protection and availability of essential information is also needed in various areas of public policy Health (access to affordable medicines) Biotechnology (use of genetic research tools) Education (access to scientific materials) Food & agriculture (food security & preservation of biodiversity)

14. UNCTAD/CD-TFT 14 IPRs & innovation in Russia WTO Accession: bilaterally negotiated standards often provide stronger protection for inventors/creators than TRIPS Reduction of public domain/competition/follow-on innovation National costs & benefits depend on technological level of domestic industry: careful assessment of strengths & weaknesses required Expansion of bilateral standards through MFN rule

15. UNCTAD/CD-TFT 15 Conclusions IPRs: traditional means to promote domestic technological development No «one-size-fits-all» model: level of IP protection needs to reflect particular level of development IPRs must not be too broad to prevent competition and follow-on innovation TRIPS provides flexibilities for these purposes Policy makers need to be aware of TRIPS flexibilities Benefits of TRIPS-plus standards depend on domestic industry’s technological capacity

16. UNCTAD/CD-TFT 16 Contact Christoph Spennemann Legal Expert Intellectual Property Team Division on Investment and Enterprise (DIAE) UNCTAD E-mail: Christoph.Spennemann@unctad.org Tel: ++41 (0) 22 917 59 99 Fax: ++41 (0) 22 917 01 94 http://www.unctad.org/tot-ip