Search the archive.

So, what do we advise our EMB innovators: utility model protection or patent application? There are clearly advantages and disadvantages in both forms of protection. For a local company seeking protection in a local market, the utility model, where available, probably offers the best value for money. Once decisions are made to file internationally, then utility model protection offers limited benefits. Not all countries offer utility model protection, far from it, and even for those that do, the rules governing utility model protection are far from being harmonized worldwide, such that the costs involved in obtaining detailed local advice may outweigh the savings in filing for utility models. It may simply be better to file for patent protection to ensure the best form of protection.

One major concern is whether the implementation of utility models might cause significant harm to US business. For example, the introduction of utility models as an unexamined right might only exacerbate the current problems related to the litigation of poor quality patents or overly broad patent claims. Many authors are in agreement that such litigation is a large burden to US business, particularly smaller businesses, which often do not have the financial resources and personnel to deal with lengthy and costly litigation. [xli] Intellectual property litigation involves significant cost and uncertainties, which make it unattractive to smaller start-ups, even though it can lead to a significant financial return and the exclusion of competitors. The costs might include the preparation of the legal case, distraction of employees, attendance of court proceedings by witnesses such as employee inventors, and document production. Furthermore, there may be considerable risks of the loss of trade secrets through the discovery process and of counterclaims of infringing the competitor-defendant's patent portfolio. [xlii] Even though most patent lawsuits settle before trial, attorneys' fees and the indirect costs of litigation are almost always still high. There are also indirect business costs associated with patent litigation, which may include strained relationships and jeopardized cooperative development. Furthermore, businesses in weak financial positions may experience dramatic increases in their credit costs due to potential bankruptcy risks created by patent litigation. Researchers report that alleged infringers lose approximately a half a percentage point of their stock market value upon being sued for patent infringement. [xliii] Furthermore, they report that this indirect cost is actually an order of magnitude larger than those of the actual legal fees of the patent litigation. This indirect cost and amounts to about nineteen percent of these same companies' R&D spending, an amount that is often greater than some estimates of the value of their granted patents. Not only have the costs of patent litigation been traditionally high, they have been increasing dramatically in recent years, as have the rates of patent litigation. [xliv] Limited available evidence and its analysis, as well as anecdotal evidence, indicate that the high costs and risks of litigation have created opportunities for abuses of the patent system in which there is the potential for larger and wealthier firms to willfully infringe the patents of individuals and small businesses or to exert clearly invalid patents against smaller firms. [xlv] Clearly it is small businesses that are most at risk in the litigation of poor quality patents. Without other additional systemic changes and reforms, the introduction of an unexamined IP right such as utility model protection would only increase the burden on small and all other businesses, as well as add additional stress to an already overloaded court system.

There is also continuous debate on the rationale of sui generis intellectual property regimes, especially given that they potentially undermine the strict demarcations of traditional intellectual property rights. Analyzing utility model regimes and their role in enhancing economic development and innovation, Suthersanen offers three rationales for utility model sui generis laws: (1) ameliorating the defects of the national patent system; (2) preventing free riding in copying and encouraging innovation, especially in relation to small and medium-sized enterprises; and (3) improving the legal environment in developing countries. The above justifications turned out to work for the Chinese, German, and South Korean economies. However, by way of Australian example, Suthersanen shows that, for countries where the national economy and industries have reached higher levels of technological capacity, utility model regimes might not be as useful, since the low innovative step increases low value patents, thus creating uncertainty and making the benefits of the innovation patent system illusory, especially as compared to its costs. The conclusion that Suthersanen makes is that utility model sui generis rights can be useful and may enhance innovation, but only in certain developing countries and at specific stages of their development.

However, there has been little comparative study of sui generis intellectual property protection that would evaluate the effectiveness of sui generis regimes and estimate whether the goals pursued by the legislators introducing sui generis regimes for different kinds of subject matter have been achieved. Thus, this book is aimed at filling this gap and contributing to a better understanding of sui generis intellectual property rights.

The cluttering of the register with utility models that are probably not valid (or at the very least partially invalid) is posing a problem in some areas of technology. Not only does this add to the costs of checking that a product infringes no IP rights, but also can lull a holder of a utility model into a false sense of security. The certificate of registration—unlike a regular patent—can never be given the ‘benefit of the doubt’ for validity. Some utility model systems, for example in Croatia or Japan, allow or require the proprietor to request complete ‘substantive’ examination of the utility model. Other systems, such as Germany, only provide for a search to be carried out at the request of the applicant;34 complete examination is restricted to a revocation request35 or as a counterclaim in an infringement procedure.

5.26

Utility models are registered industrial property rights which confer on proprietor’s exclusive protection of their technical inventions, particularly those with a limited degree of inventiveness or a relatively short period of exploitation. They offer more flexible and less burdensome protection than that offered by patents. Utility models are therefore an effective tool well-suited to enterprises—particularly SMEs—which are active in certain fields of innovation.

5.19

In his book, The Coming Famine, Julian Cribb writes that the wars of the 21st century will involve failed states, rebellions, civil conflict, insurgencies and terrorism. All of these elements will be triggered by competition over dwindling resources, rather than global conflicts with clearly defined sides. More than 40 countries experienced civil unrest following the food price crisis in 2008. The rapid increase in grain prices and prevailing food insecurity in many states is linked to the outbreak of protests, food riots and the breakdown of governance. Widespread food insecurity is a driving factor in creating a disaffected population ripe for rebellion. Given the interconnectivity of food security and political stability, it is likely food will continue to act as a political stressor on regimes in the Middle East and elsewhere. Addressing Insecurity Improving food and water security and encouraging resource sharing is critical to creating a stable and secure global environment. While food and water shortages contribute to a rising cycle of violence, improving food and water security outcomes can trigger the opposite and reduce the potential for conflict. With the global population expected to reach 9 billion by 2040, the likelihood of conflict exacerbated by scarcity over the next century is growing. Conflict is likely to be driven by a number of factors and difficult to address through diplomacy or military force. Population pressures, changing weather, urbanization, migration, a loss of arable land and freshwater resources are just some of the multi-layered stressors present in many states. Future inter-state conflict will move further away from the traditional, clear lines of military conflict and more towards economic control and influence.

A growing number of studies of environmental stressors and social conflict posit that future wars will be fought over diminishing resources (Miguel et al. 2004; Burke et al. 2009;O ’ Loughlin et al. 2012; Scheffran et al. 2012 ). Building on insights from these studies, as well as other suggestive accounts (e.g. Brinkman and Hendrix 2011 ;Hendrix and Brinkman 2013 ; Messer and Cohen 2006 ;Prunier 2008 ), the present study demonstrates empirically, for the first time, the existence of a systemic relationship between conflict on the one hand, and food (in) security on the other, both globally and locally. Specifically, highly disaggregated cropland-based measures of food insecurity are shown to produce a significant effect on the incidence of inter and intra-state armed conflict worldwide. Unlike the majority of previous studies, which rely primarily on country-level indicators (Miguel et al. 2004 ; Burke et al. 2009 ; Scheffran et al. 2012 ;Buhaug 2010 ) or focus specifically on sub-Saharan Africa (Miguel et al. 2004 ; Burke et al. 2009;O ’ Loughlin et al. 2012;Buhaug 2010; Fjelde and Hultman 2014 ), the present approach uses geographic factors to estimate the regional sub-state distribution of conflict globally. Two agricultural output measures, the percent of cropland in a given region and the amount of cropland per capita within agricultural regions, are used to proxy for the demand and supply aspects of food security, respectively (Barrett 2010 ). Using logistic regression (i.e., logit) models, these measures are then paired with a large number of political, economic, and climatic indicators in order to estimate the direct effects of food security on violent conflict. Evidence suggests that conflict occurs in areas with higher access to, but lower availability of, food resources. Together these findings imply that food insecurity produces an independent effect on contemporary social and political conflict. While relatively little research directly addresses the relationship between food insecurity and conflict specifically, numerous studies have implied that such a relationship exists. For instance, in their analysis of the relationship between climate variability and conflict in Sub-Saharan Africa, Burke et al. found that B [t]emperature variables are strongly related to conflict incidence over our historical panel ^ (2009 , 20,670. See also Miguel et al. 2004 ; Koubi et al. 2012 ). They further hypothesize that, B [t]emperature can affect agricultural yields both through increases in crop evapotranspiration (and hence heightened water stress in the absence of irrigation) and through accelerated crop development...reducing African sta- ple crop yields by 10 % – 30 % per °C of warming ^ (ibid. 20,672). Somewhat more cautiously, O ’ Loughlin et al. conclude that, B [o]ur study and other studies question the evidence that climatic variability is uniformly driving up the risk of conflict in sub-Saharan Africa, ^ while also noting that B the positive association between instability and temperature may result from the harmful effects of high temperatures on food products such as maize ^ (2012, 18,347). While these conclusions were supported by subsequent studies (Raleigh and Kniveton 2012; Hendrix and Salehyan 2012 ;Hsiangand Meng 2014 ), other scholars question the validity of these findings and show that the incidence of conflict is primarily related to political and economic conditions (e.g. Buhaug 2010 ). In common with all these studies, however, is the insight that a major mechanism by which climate change increases the likelihood of conflict is through its effects on food supplies.

The agricultural sector is the backbone of the economy and employment in most developing countries. Its share of the gross domestic product (GDP) is often more than 50 percent and, in some countries, up to 80 percent of the active population earn their living in agriculture. But in most of these countries, agricultural productivity is extremely low, with yields often low and unstable from year to year. A large proportion of this agricultural activity is subsistence farming that generates no financial income and is, in many cases, insufficient to feed farmers’ families. Under those circumstances, the agricultural sector is unable to contribute to a country’s overall economic development and, even less, to respond to the challenges of feeding a growing population, relieving rural poverty and mitigating climate change.

One of the reasons for poor agricultural performance in many developing countries is a lack of progress in improving the performance of traditional plant varieties over the centuries. In contrast, the graphs (at right) illustrate progress achieved in wheat yield in France and maize yield in the U.S. over a period of two centuries. Clearly, the advent of modern plant breeding has enabled yields – which previously were stagnating or declining – to increase substantially. It is estimated that improved varieties have accounted for more than 50 percent of overall yield increases for important crops in Europe. The remaining growth is due to improved agricultural techniques, including fertilizers and better pest and disease control. But improvement in yield is not the only major objective in modern plant breeding. Others include resistance to environmental and biological stress, and quality.

Private nurseries and breeders from the United States pioneered the legislative movement towards the creation of exclusive rights over plant varieties. They were able to obtain, without the participation of farmers and consumers, the enactment of special legal regimes of plant variety protection (PVP). In Europe, commercial breeders' initiatives led to the adoption of the International Convention for the Protection of New Varieties of Plants (UPOV), conceived for the agricultural systems and the modalities of seed production prevailing in those countries. Developing countries were conspicuously absent in the process of creation and strengthening, through UPOV as revised in 1991 (UPOV 1991), of this international regime.

As a matter of principle, countries should be able to choose whether or not to provide intellectual property protection to plant varieties as well as what form of intellectual property protection they confer, depending on the characteristics of their agriculture and seed supply systems. Improvements in plant genetic resources for food and agriculture have taken place over the centuries without such protection. The costs generated by such protection may exceed potential benefits, particularly if farmers are prevented from pursuing their traditional practices of saving, using, exchanging and selling seeds/propagating material.

Humans have fought over food and the means of producing it for 20,000 years, as rock art in Australia shows. Food, water and land scarcity are primary drivers in two thirds of modern conflicts today. Indeed, many people seem to have forgotten that the primary German war aim in World War II was to take farmland from the Soviets and put German farmers on it. It is very likely that controlling the Ukraine’s bountiful and reliable food bowl is among Putin’s main aims also. In the short run this is imposing hunger and even starvation on hundreds of millions of people far beyond Europe. 

Spreading hunger in turn snowballs into government failures, civil wars and refugee tsunamis around the world – as it did in 2008 when a shortfall in Ukrainian grain exports led to revolutions in three Arab countries. Already, a third of a billion people – equal to the entire population of Europe – leave their homes each year, either as refugees or economic migrants, to seek better lives in countries which seem more stable and food secure. War will add to the flood.

While UPOV provides a model of protection focused on breeders' commercial interests, the Convention on Biological Diversity (CBD) and its Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from Their Utilization, as well as the International Treaty on Plant Genetic Resources for Food and Agriculture (ITPGRFA), include elements reflecting other interests, notably the conservation of biodiversity, the sustainable use of genetic resources, and the fair and equitable sharing of the benefits arising from their exploitation. Since PVP legislation concerns exploitation of plant genetic resources, a sui generis regime on plant varieties should be designed in a manner that is supportive of and coherent with the objectives and elements of these international instruments.

Developing countries are often exposed to arguments about the potential benefits of joining UPOV 1991. In addition to the mentioned pressures and obligations under FTAs, these countries have been constrained by limited expertise, institutional capacity and experience in designing regimes adequate to their realities. However, based on an inclusive process of continual engagement with relevant stakeholders, including farmers, parliamentarians and government agencies, such regimes can be developed and implemented.

Databases (Information system) such as TKDL serves as prior art and hence no patent could be granted on any traditional knowledge (TK) available in the database, according to the TKDL authorities. Agreements are signed with foreign Patent Offices before sharing the database, wherein the use of database is permitted for search and examination only. But it is certain that a Patent Office cannot keep the secrecy of the contents in TKDL. Because patent applications can be rejected only after disclosing the full script of the actual TK as citation to the claimant. Fraudsters may take it as an opportunity to file patent applications purely on conceptual grounds. They may claim that they had performed the invention, though they have not done anything. The ultimate aim of the fraudsters is to fetch authentic information available in the TKDL. TKDL is definitely the appropriate solution to stop the usurpation of TK, that is known to a large number of people in the country. However, it is found that the TKDL authorities attempt to codify community-owned TK also. Such TK is the livelihood of communities, and hence codifying them into TKDL and sharing with patent offices is a gross injustice to those communities. Therefore, it is proposed to create a Traditional Knowledge Docketing System (TKDS) in the case of community owned TK. TKDS shall comprise of the location where the TK is available, the community that holds the TK, the type and nature of TK and community protocol if any. Further, the communities should be educated to register societies or trusts for the protection of their TK. Government should also empower them to do further research on the TK in their custody and enable them to take patents on the inventions emanated from such research. Government should also handhold them in their endeavour to earn livelihoods from the TK and help them to negotiate with the potential customers. In order to facilitate all this, a sui generis legislation also is needed. The sui generis legislation shall provide for the local preservation and sustainable development of TK.

(TK – Traditional Knowledge)

Generally, individualized forms of ownership, popular within Western legal systems, are unsuitable for Indigenous culture and traditions because the community owns the traditions and culture, rather than one individual owning the culture or tradition.93 Australia’s concept of copyright protection “only protects the material medium rather than the idea or concept.”94 Another concern of Indigenous communities is the limited time period for copyright protection. According to Part III of the Copyright Act, copyright protection for an original work only subsists for seventy years after the death of the original author, which only grants protection for a limited time.95 Overall, Australia’s copyright protection falls short of being effective for Indigenous communities.96 Although countless communities have provided information for research and literature, they are not entitled to any of the proceeds resulting from sales because they cannot meet the requirements of ownership under current copyright law.97 Scholars effectively use and profit from Indigenous culture and knowledge instead of Indigenous communities supplying the information.98 For example, unauthorized photographs were taken of Wik Apalech dancers from Cape York, Australia and later distributed and sold as photographs, postcards, and CDs.99 This was offensive to the Wik Apalech because only specific people within the Indigenous community have the authority to see this dance and distributing these images violated that tradition.100 While the Copyright Act would not have assisted because the dancers could not claim ownership of the photos, the Wik Apalech could have claimed intellectual property protection under performers’ rights.101 Under current intellectual property laws, Indigenous culture is vulnerable to unlawful taking. Although there are laws attempting to protect it, conforming Indigenous ideas to Western intellectual property law remains difficult.

Intellectual property laws are a relatively recent legal construct initially adopted in England to secure the rights of publishers and writers. [75] Over time, copyright protection has expanded to cover new subject matter, including maps, performances, paintings, photographs, sound recordings, motion pictures, and more recently, architectural works and computer programs. [76] The trend has been to strengthen IP laws in terms of scope (new subject matters are covered) and duration (longer protection terms). [77] For instance, copyright protection has increased to a point where the term is, practically speaking, perpetual. [78] Also, it is undisputed that the expansion of the IP system primarily supports the interests of corporations. [79] In contrast to this dramatic trend of expansion of IP laws to accommodate corporate interest, efforts to [*995] protect traditional knowledge and expressions have progressed slowly, particularly in developed countries. [80]

Copyright laws do not protect TCEs

WIPO has given serious consideration to the possible protection of indigenous knowledge through various forms of intellectual property rights (IPRs), including copyright, patents, plant varieties, industrial designs, and trademarks. [19] As a practical matter, however, it may be difficult to protect [*72] traditional knowledge through IPRs due to problems fitting traditional knowledge into “certain accepted notions of intellectual property relating to ownership, originality, duration, fixation, inventiveness and uniqueness,” [20] among others. For example, it has been argued that IPRs are unsuitable for indigenous knowledge because they focus on individual rather than group rights, [21] they offer protection for fixed periods of time unlike the indeterminate periods applicable to indigenous knowledge, [22] and the requirement of a writing for protected works virtually excludes much of the indigenous knowledge that is transmitted orally though generations in traditional societies. [23] Additionally, IPRs are expensive to obtain and the costs of enforcement high. [24] Long and costly administrative and judicial procedures would render the IPR option unattractive for many indigenous people. Given this perceived incompatibility between IPRs and traditional knowledge, the case has been made for the development of a sui generis regime specifically adapted to the nature and characteristics of indigenous knowledge. [25] the argument for adopting a separate instrument for traditional knowledge is based on the recognition that traditional knowledge is created, owned, and utilized differently. [26] Unlike intellectual property law, traditional knowledge is designed not to confer economic benefits to individual creators but is intended for common exploitation. [27] “Consequently, it does not make sense to try and fit [it] within the rigidities of national intellectual property law.” [28]

Proof that indigenous ECTK deserves the full gamut of protection is the increasing exploitation, inappropriate commercialisation and commodification of ECTK by nonindigenous people. Due to the increase in worldwide demand for genuine indigenous artefacts, ECTK has become a commodity soaring in value, especially in areas of tourism, advertising and marketing.5 Despite the high commercial value of sales, indigenous peoples often derive little or no benefit from the market consumption of their traditions, knowledge and artworks. A 1998 study by the Australian government indicated that the Australian Aboriginal arts and craft industry had an estimated retail sales figure of AUD $18.5 million in 1988, with indigenous artists receiving less than one half of the retail value of their work.6 This figure grew to an estimate of a least AUD$100 million in 20007 and to USD $130 million in 2002.8 However, by comparison, at the same time in 2002, traditional owners received only $30 million of this turnover.9

Damage caused by cultural misappropriation can be so devastating that traditional owners often lose all interest in reclaiming debased ECTK. For example, the Navajo Native Americans currently believe that part of their ECTK has now become linked to evil due to misappropriation by a car manufacturer10 and consequently have no desire to claim the return of misappropriated ECTK.11

The need for a sui generis form of IPRs was recognized early enough. Any procrastination in this area opens a window of opportunity for biopiracy and misappropriation especially of plant genetic resources. Moreover, such procrastination is dealing a death blow to the dream of conservation and sustainable use of plant genetic resources. It can also not be said that the absence of a sui generis system means many communities are being robbed not only of their TK but also of their inheritance. Closely connected to this is that the countries lose a lot of revenue which they actually need for their own further development. It is, therefore, recommended that countries move with speed to put in place sui generis systems of IPRs. In so doing, the broader aim should be to plough back some benefits of TK to communities, biodiversity conservation and to ensure sustainable use of the resources.

A number of arguments have been offered for the imperative of extending IPR protection to TK of biodiversity. The main advantages of protection would be preventing the misappropriation of knowledge by unauthorised parties without prior informed consent and ensuring that the holders of TK benefit. It is also assumed that this would help promote the use of TK in development, help preserve traditional practices and culture, and lead to the conservation of biodiversity. Also, considerations of justice and equity demand that the knowledge created by local and Indigenous communities in fields and forests must be recognized as the property of its creators just as the knowledge created in the laboratories is acknowledged as the property of the innovators (Sahai & Barpujari, 2006). Article 8(j) of the Convention on Biological Diversity (CBD, 1992) provides the primary legal basis internationally for ensuring protection of this knowledge by explicitly stating that, Each contracting Party shall, as far as possible and as appropriate: Subject to national legislation, respect, preserve and maintain knowledge, innovations and practices of indigenous and local communities embodying traditional lifestyles relevant for the conservation and sustainable use of biological diversity and promote their wider application with the approval and involvement of the holders of such knowledge, innovations and practices and encourage the equitable sharing of the benefits arising from the utilization of such knowledge innovations and practices. (p. 6). A number of issues and challenges, however, get in the way of extending effective protection to TK of biodiversity and the TK holders themselves. One main problem is believed to be the inherent mismatch between the nature of intellectual property (IP) and that of TK. As observed by the Working Group on Article 8(j) and Related Provisions of the Convention on Biological Diversity (Working Group, 2007) TK at the community level works under customary rules and this context is lost when the knowledge escapes into foreign systems. It observes that, while IPR aim to commodify or commercialize certain pieces of knowledge, this is generally not the purpose behind customary rights in TK. Further, the idea of ‘exclusivity’ of rights under the IP system may conflict with customary law concepts of how knowledge and resources should be treated (Working Group, 2007). However, as discussed later in the paper, it would be presumptuous to assume that Indigenous communities do not have the concept of individual ownership of knowledge. Many countries have sought to address this gap by enacting sui generis IP regimes. The term sui generis is used in IP law to describe a regime designed to protect rights that fall outside the traditional patent, trademark, copyright, and trade secret doctrines (Black, 1968). It is, thus, a special system adapted to a particular subject matter, as opposed to protection offered by one of the main systems of IP protection. Sui generis regimes, like the Indian Biological Diversity Act (2002), recognize the need for equitable sharing of benefits arising out of the commercialisation of biological diversity and associated knowledge, and try to provide an institutional framework for regulating access and according IP protection. The Act is, however, largely silent on the issue of IPR of the TK holders over their knowledge. Sui generis regimes, like Peru’s Law No. 27,811, 2002, Philippines’ Indigenous Peoples Rights Act, 1997, Thailand’s Act on Protection and Promotion of Traditional Thai Medicinal Intelligence, B.E. 2542, 1999 have opted to go a step further by recognizing the IP of the TK holders over their knowledge and right to withhold access. Some regimes, like the case in the Philippines, have sought to accord recognition to the pre-eminence of customary law in these matters. In fact, the Working Group on Article 8(j) and Related Provisions of the Convention on Biological Diversity (2007) recommend the use of the principles of customary law as the basis for developing a range of sui generis mechanisms, which could provide a means to strengthen and maintain core traditional values, while allowing communities the flexibility of responding and adapting to changing circumstances, opportunities, and threats. This, is, however, not easily reflected in most legislation of this kind.

The alternative view represents the uniqueness of traditional knowledge approach. According to this view, traditional knowledge should receive special treatment in matters of intellectual property. Various reasons could be given to support such special treatment. The ones I address here are variants of the fundamental theme that traditional knowledge plays a special role in defining the identity of indigenous communities. Protecting this identity requires positive as well as negative protection of the intellectual property rights of the indigenous community and is probably best developed through a sui generis system. Article 8(j) of the Convention is clearly based upon this approach.