Charles Lawson

The WTO Agreement on Trade-Related Aspects of Intellectual Property Rights: A Commentary

This Commentary on the WTO Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) provides a detailed textual analysis of TRIPS – a pivotal international agreement on intellectual property rights. TRIPS sets minimum standards for national laws on copyright, patents, trademarks and other forms of intellectual property rights. TRIPS profoundly impacts upon the regulation of access to medicines, compulsory licensing of copyright material, geographical indicators and other significant IP-related matters. This reference book is a major authoritative work that is clearly organised and presented, allowing users to navigate quickly to commentary on any element of TRIPS.

The role of patents in biodiversity conservation.

Patents may not establish clear property and use rights and this may promote biodiversity destruction and decline. What is needed are schemes for patents to suit conservation and sustainable-use objectives.

Interpreting and Implementing the TRIPS Agreement

This book considers whether the WTO agreement on ‘Trade-Related Aspects of Intellectual Property Rights’ (TRIPS) will become a vehicle for promoting greater international equity and engagement with the world economy or a tool for wealthy nations to extract excessive rents from poorer countries. Can TRIPS garner the necessary degree of legitimacy and public trust to deliver economic development? Can it become a key instrument for promoting international health and development? In response to these questions, the book proposes interpretive possibilities for the TRIPS’ text along with implementation strategies to avoid the threat of its irrelevancy due, amongst other things, to free trade agreements containing TRIPS-plus terms.

'TRIPs-plus'Patent Privileges - An intellectual property 'Cargo Cult' in Australia

This article challenges the desirability of implementing more than the minimum patent standards required by Australia’s commitment to the World Trade Organisation’s Agreement on Trade Related Aspects of Intellectual Property Rights (so‐called ‘TRIPs‐plus’ measures). We argue that there has not been an adequate analysis of what the various TRIPs‐plus measures actually are under the Patents Act 1990 (Cth), and that these measures have not been subjected to a competition analysis as required by the Competition Principles Agreement. This is, we contend, reminiscent of ‘cargo cult’ as Australian policy makers appear to reason that the most developed nations have benefited from innovation with TRIPs‐plus measures, and so with similar measures, those same benefits will accrue to Australia.

It's patently absurd — benefit sharing genetic resources from the sea under UNCLOS, the CBD and TRIPs

Abstract The United Nations Convention on the Law of the Sea (UNCLOS) establishes a scheme of sovereignty over parts of the seas. The resources of the seas within state jurisdiction covered by UNCLOS are then accessed and shared according to the scheme set out in the Convention on Biological Diversity (CBD), which relies, in part, on patenting according to the Trade Related Aspects of Intellectual Property Rights Agreement (TRIPs). The key findings of this paper are that patents compliant with TRIPs are unlikely to achieve the objects of sharing the benefits from exploiting the genetic resources of the seas because of the significant gaps in UNCLOS and the failure to take into account broad patent claims by non‐residents in benefit sharing arrangements. Consequently, the reliance by the international community on UNCLOS and the CBD for the regulation of benefit sharing, undermines the internationally agreed mandate that the genetic resources of the seas are to be shared and used for the benefit of all.

Juridifying the Self-replicating to Commodify the Biological Nature Future: Patents, Contracts and Seeds

This article traces recent decisions about patents over seeds to examine the special property rules that maintain controls over the second and subsequent generation (or progeny) seeds derived from planting and harvesting the first-generation seeds. The analysis demonstrates (1) that licences might be used to avoid patent exhaustion and control the future uses of self-replicating seeds, and (2) failing this, that self-replication is a separate (re)making of the invention that maintains the patent and control. The effect of maintaining controls through contract and patents is then to juridify the self-replicating to commodify the biological nature future.

The Evolution of the CBD's Development Agenda that may Influence the Interpretation and Development of TRIPS

The chapters in this volume provide insightful analysis and commentary on TRIPS and, importantly, the TRIPS Plus world that many countries operate in. . . This is a fine contribution to the growing literature of interdisciplinary analyses of the global IP regime. . . there is enough in here that makes the book worth acquiring and reading. Scholars of development more generally will find this book to be useful both for advancing their own understanding of the global IP regime and for integrating IP into broader development studies courses they teach. [Book Synopsis]

Provenance and risk in transfer of biological materials

Whereas biological materials were once transferred freely, there has been a marked shift in the formalisation of exchanges involving these materials, primarily through the use of Material Transfer Agreements (MTAs). This paper considers how risk aversion dominates MTA negotiations and the impact it may have on scientific progress. Risk aversion is often based on unwarranted fears of incurring liability through the use of a material or loss of control or missing out on commercialisation opportunities. Evidence to date has suggested that complexity tends to permeate even straightforward transactions despite extensive efforts to implement simple, standard MTAs. We argue that in most cases, MTAs need do little more than establish provenance, and any attempt to extend MTAs beyond this simple function constitutes stifling behaviour. Drawing on available examples of favourable practice, we point to a number of strategies that may usefully be employed to reduce risk-averse tendencies, including the promotion of simplicity, education of those engaged in the MTA process, and achieving a cultural shift in the way in which technology transfer office (TTO) success is measured in institutions employing MTAs.

Relationships between the work of the WIPO IGC and other forums

Introduction Traditional knowledge (TK), genetic resources (GRs) and traditional cultural expressions/expressions of folklore (TCEs) have been the subject of discussion at the World Intellectual Property Organization (WIPO) since October 2000.1 The evolving concern about these matters is recognition that TK, GRs (and their associated TK) and TCEs (including TK) have developed increased economic, scientific, cultural and commercial values, and that intellectual property is increasingly relevant and important to their protection and exploitation.2 WIPO’s first tentative step in this area was to convene the Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC) in 2001.3 Since then there have been deliberations over thirty-two sessions with the first twelve sessions until 2008 reaching no consensus about any of the identified issues.4The issue of traditional knowledge and how it should be protected is important and currently a concern throughout the world. The protection of traditional knowledge through the intellectual property regime carries out the essential function of preventing third parties from exploiting this knowledge for profit. However, this regime is not only unavailable to most traditional Picture source: Gallo Images/Thinkstock knowledge holders, but it also does not necessarily guarantee the preservation of the knowledge.

Patenting Genetic Diagnostic Methods: NGS, GWAS, SNPs and Patents

This article reviews the problems posed by patent claims to genetic diagnostic methods associated with genome-wide association studies (GWAS) adopting methodologies using next-generation sequencing (NGS) and single nucleotide polymorphisms (SNP). These problems are essentially about experimental reproducibility and the credibility and veracity of reported developments. An analysis of the relevant law demonstrates that the current Australian and United States laws about suitable patentable subject matter differ, and that the current reproducibility (sufficiency, enablement and inutility) standards are unlikely to address these problems. The article concludes that following the United States approach excluding these genetic diagnostic method claims from patenting is one solution. Failing this, improving analysis and quality controls that are now being adopted in the basic research will reduce the nature of the problems, although this will remain problematic for patent examiners and the broader public.