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2024 CNDI Topicality
Aff Topicality › Subsets › 1AR – “In” C/I

“In” means “some portion of.”

Judge C. Lynwood Smith 10. United States District Judge. UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF ALABAMA NORTHEASTERN DIVISION ABBOTT POINT OF CARE, INC., Plaintiff, vs. EPOCAL, INC., Defendant. https://www.govinfo.gov/content/pkg/USCOURTS-alnd-5_08-cv-00543/pdf/USCOURTS-alnd-5_08-cv-00543-2.pdf

In addition, three of the many definitions of the word “in” found in contemporaneous general dictionaries include the following: “1. a. Within the bounds or area of . . . b. From the outside to a point within * * * 2. To or toward a destination or goal . . . .” Webster’s II New College Dictionary 557 (Houghton Mifflin Co. 2001, 1999, 1995); see also Webster’s II New Riverside University Dictionary 616 (Houghton Mifflin 1994) (same). Thus, as the Special Master noted, but only in passing: “The word ‘in’ does not require that something be completely and continuously inside of something else.” Doc. no. 96 (Special Master’s Final Report and Recommendation), at 92 n.57 (emphasissupplied). Instead, it is common to use the word to state that something is contiguous to something else, such as saying that a skylight is “in” the room to which it opens and provides natural illumination.

Accordingly, the construction adopted by this court for the phrases “positioned in a conduit” and “positioned in said conduit,” as each is used in Claim 1 of the gas patents, is: a gas equilibration reservoir positioned with respect to the conduit so as to allow contact between at least some portion of the reservoir (or with the reservoir’s gas-permeable membrane, if one is employed) and at least some portion of the aqueous calibrant fluid within the conduit, such that there can be contact between the fluid in the conduit and the equilibration reservoir to allow for gas exchange to occur when the fluid is brought into contact with or exposed to the reservoir.

2024 CNDI Topicality
Aff Topicality › Subsets › 2AC – T-Subsets

Prefer our definition---courts have found it to be the obvious meaning.

Cullen 52 – Cullen, Court of Appeals of Kentucky, 52, Commissioner, Court of Appeals of Kentucky, November 13, 1952 Riehl et al. V. Kentucky unemployment compensation commission; the judgment is affirmed. Rehearing denied; COMBS, J., and SIMS, C. J., dissenting.

We do not find any ambiguity in KRS 341.070(1). It is our opinion that the key word in the statute is the word 'in,' preceding the words 'each of three calendar quarters', and if the word is accorded its ordinary and common meaning, the statute does not require simultaneous employment. According to Webster's New International Dictionary, the word 'in,' used with relation to a period of time, means 'during the course of.' The same meaning, expressed in another way, would be 'within the limits or duration of.' Employing this meaning, the statute says that an employer is subject to the Act if, during the course of, or within the limits or duration of each of three calendar quarters, he had in covered employment four or more workers, to each of whom the required amount of wages was paid. This clearly means that the employment need not be simultaneous. Obviously, the word 'in' does not mean 'throughout' or 'for the entire period of,' because then there would be no point in adding the requirement of the payment of a minimum of $50 in wages. In these times, no worker employed for a full calendar quarter would be paid less than $50 in wages. The appellant seeks to read into the statute the words 'at the same time,' following the words 'had in covered employment'. There is no justification for this, unless the word 'in' means 'during any one period of time in.' We are not aware of any authority for ascribing such a meaning to the word 'in'.

2024 CNDI Topicality
Aff Topicality › Subsets › 2AC – T-Subsets

“In” means within --- this is the core meaning

Encarta 7 – Encarta World English Dictionary, 7 (“In (1)”, 2007, )

in [ ] CORE MEANING: a grammatical word indicating that something or somebody is within or inside something.

1. preposition indicates place: indicates that something happens or is situated somewhere

2024 CNDI Topicality
T – USFG / Framework › 2NC › Other Definitions

IPR protections are legislative. It requires government action as the framework for upholding rights.

Christopoulou ’21 [Danai, Nikolaos Papageorgiadis, Chengang Wang & Georgios Magkonis; April 23; Senior Lecturer (Associate Professor) in Strategy and International Business and the University of Liverpool Management school, currently the Director of Education for the SIBE group and the Director of Studies for the BA International Business programme; Management International Review, “IPR Law Protection and Enforcement and the Effect on Horizontal Productivity Spillovers from Inward FDI to Domestic Firms: A Meta-analysis,” Volume 61]

IPR systems comprise of two distinct elements: (a) IPR protection and (b) public IPR enforcement (Khoury et al. 2014; Peng et al. 2017a). The IPR protection element relates to the availability of IPR law as this appears in the statutes of a country’s legislative framework. The range of IPR law in a country determines which intellectual assets can receive IPR protection, the duration of IPR protection (e.g., typically 20 years for patents) and the available legal sanctions that can be used by IPR enforcement agents (OECD 2014). For example, IPR law in a country determines the level and range of fines that IPR infringers may be sentenced with if convicted for IPR violation. Countries offering strong IPR protection generally provide legislative frameworks that offer IPR protection coverage to a wide type of IPR assets and a wide number of legal enforcement mechanisms for use by the IPR enforcement agents (Ginarte and Park 1997). In contrast, weak IPR law protection relates to the provision of some IPR protection however, protection may not be available for many other types of IPR that receive protection in other countries. There are differences in the availability and range of IPR law protection between countries internationally such as country specific legal exemptions or lack of IPR law availability for specific IPR assets e.g., the patentability of software and plant and animal varieties (Park 2008). Therefore, while IPR owners may be awarded IPR protection in one country they may not be able to register and protect their rights in another country. In addition, the available laws related to the enforcement of IPR may not provide a range of legal options to IPR enforcement agents to carry out their operations effectively. For example, this can relate to the potential lack of legislation that allows IPR enforcement agents to award and enforce preliminary injunctions in IPR infringement cases.

2024 CNDI Topicality
T – USFG / Framework › 2NC › Other Definitions

‘Should’ recommends a course of action.

David Trager 2k, Federal District Judge, 9/29/2000, Westlaw, United States v. Maria, 186 F.3d 65

8 Webster's Dictionary defines the phrase “should be” as something “that ought to be.” Webster's Third New Int'l Dictionary 2104 (1st ed.1993). See also Black's Law Dictionary 1379 (6th ed. 1990) (“[The word ‘should’] ordinarily impl[ies] duty or obligation; although usually no more than an obligation of propriety or expediency.”) (emphasis added). In contrast, the word “shall” is “used to express a command or exhortation,” and is “used in laws, regulations, or directives to express what is mandatory.” Webster's Dictionary, at 2085. See also Black's Law Dictionary, at 1375 (“As used in statutes, contracts, or the like, this word is generally imperative or mandatory.”). Thus, the common meaning of “should” suggests or recommends a course of action, while the ordinary understanding of “shall” describes a course of action that is mandatory. In the absence of a clear manifestation of intent on the part of the Sentencing Commission to attribute to “should” a meaning contrary to the common one, the term should be given its usual meaning. See Kirvan, 86 F.3d at 311.

2024 CNDI Topicality
T – USFG / Framework › 2NC › Other Definitions

‘The USFG’ denotes the three branches.

U.S. Legal 16, organization offering legal assistance and attorney access, “United States Federal Government Law and Legal Definition,” https://definitions.uslegal.com/u/united-states-federal-government/

The United States Federal Government is established by the US Constitution. The Federal Government shares sovereignty over the United Sates with the individual governments of the States of US. The Federal government has three branches: i) the legislature, which is the US Congress, ii) Executive, comprised of the President and Vice president of the US and iii) Judiciary. The US Constitution prescribes a system of separation of powers and ‘checks and balances’ for the smooth functioning of all the three branches of the Federal Government. The US Constitution limits the powers of the Federal Government to the powers assigned to it; all powers not expressly assigned to the Federal Government are reserved to the States or to the people.

2024 CNDI Topicality
T – USFG / Framework › 2NC › TVAs

Non-reformist reforms and subversive IP protections solves their offense. It’s possible to be affirmative and still disrupt the oppressive system.

Vizoso & Byrne ’23 (Julia Choucair Vizoso has a PhD in Political Science from Yale University. Chris Byrnes holds a JD from Georgetown University. "Abolitionist creativity," 2/9/23, https://www.tni.org/en/article/abolitionist-creativity)

The inattention is not surprising. The mention of intellectual property can cause even the brightest eyes to glaze over. It is one of many issues deliberately made to seem abstruse, overly technical, legalistic, and irrelevant for the crises we face. One should not need a law degree to understand the terms upon which their creativity enters the economy. Freeing IP from its legalistic scaffolding, and waking up to its power, reveals that it is a uniquely vulnerable regime. Here is the vital loophole: crucially, ownership and control of IP always belongs, in the first instance, to the artists, inventors, academics and creators who made it. Currently, this power lies dormant. Most IP producers uncompromisingly surrender their IP to corporations (both for profit and not-for-profit) through employment contracts, click-wrap terms and conditions, and IP licences that allow these institutions free rein to commercialise the IP in exploitative and oppressive supply chains. Others simply give their power away by using Creative Commons or Open-Source licences, but again do nothing to stop corporations from then aggressively and oppressively commercialising IP. Could we imagine a different way? What if creators seized their IP rights, occupied them, and turned their logic on its head? What if we took the essence of IP – the economic and legal right to exclude others from an intangible – and opted to exclude only oppression and exploitation? Can we leverage our legal rights as creators to throw a spanner in the works of capitalism? What if creators did not simply protest the regimes that incarcerate the imagination but created, here and now, the grassroots systems, structures, and institutions to replace them? Towards these ends, we are not primarily concerned with the abstract question of whether intellectual property should exist. Abolitionist creativity for us is not about eliminating the rights of creators or the protections afforded to creations; it is about ensuring that creativity enters the economy as a tool against oppression. In the words of the abolitionist geographer Ruth Wilson Gilmore, ‘Abolition is about presence, not absence (external link)’. We ask creators to show up and be present in the rights we have been afforded, to occupy them, and to put them together in service of the worlds we want to create. To use our creativity to build life-affirming institutions. Inspired by the questions offered by abolitionists Mariame Kaba and Dean Spade in their thinking on ‘non-reformist reforms (external link)’ (the term originally coined by French economist-philosopher André Gorz in the 1960s), we ask creators to ask themselves: What is the purpose of creativity, of information, of knowledge? Does it provide material relief to the oppressed and exploited inside the supply chains within which the creativity is commercialised? Does it build power, mobilising ongoing struggle among those affected by the creative works? Does it leave out marginalised groups? Does it legitimise the system? The abolitionist gaze sees creativity, as rendered in our economy, as a thread that weaves through interlocking systems of oppression. It invites us to pull that thread. The global IP regime is vulnerable for another reason, too. Precisely because it is awkwardly modelled on Early Modern laws related to physical property, IP is full of contradictions and absurdities, which offer intriguing opportunities for transgressive experimentation, radical imagination, and subversive play. Here are a few.

Plots from the abolitionist future Plot #1: Protest as copyrighted performance

2024 CNDI Topicality
T – USFG / Framework › 2NC › AT: IPR Irredeemable

Intellectual property is not a monolith. Their aff is totalizing, essentialist, pessimistic, and wrong.

Osei-Tutu, 21—Professor of Law, Florida International University College of Law (J. Janewa, “Denying Cultural Intellectual Property: An International Perspective on Anjali Vats's The Color of Creatorship,” New England Law Review 55, no. 2 (Spring 2021): 79-90, dml)

But IP rights are not purely about commercial transactions. Copyright law, which protects literary and artistic works, has both economic and dignitary aspects. For example, the Berne Convention for the Protection of Literary and Artistic Works (Berne Convention) recognizes moral rights, such as the right of the author to be named.22 The TRIPS Agreement, which emphasizes the economic utilitarian approach to IP protection, expressly excludes the protection of moral rights as an obligation. In addition, the TRIPS Agreement clarifies that copyright protection extends to databases. 23 This is not because databases have creative value, but rather because they have financial value. If these databases clearly met the standard requirements for copyright protection, there would be no need to specifically state in TRIPS that databases should be protected by copyright. They may not be sufficiently original and creative, but the copyright protection offers an economic incentive to compile databases. Though there were not many substantive changes to copyright under the TRIPS Agreement, the inclusion of databases and the exclusion of moral rights are illustrations of a willingness to expand the economic aspects of copyright while excluding the dignitary aspects.

The inclusion of geographical indications in the TRIPS Agreement was a significant addition because before the TRIPS Agreement, geographic source indicators had not achieved international acceptance. Prior agreements that protected appellations of origin, such as the Lisbon Agreement for the Protection of Appellations of Origin and Their International Registration (Lisbon Agreement), had relatively few parties. 24 Appellations of origin can be described as the predecessor to geographical indications, but the Lisbon Agreement has only thirty-one signatories as of 2021 and had even fewer when TRIPS came into effect in 1995.25

2024 CNDI Topicality
T – USFG / Framework › 1NC › 1nc – Humility

Putting our positions up for debate and studying their flaws best breaks down our neural bias towards intellectual arrogance, and fosters a culture of better scholarship---our brains are terrible at knowing when we’re wrong and updating our beliefs. The impact is intellectual humility---this solves dogmatism and reverses social extremism where we criticize without accepting criticism

Resnick 19 [Brian Resnick is a science reporter at Vox.com, covering social and behavioral sciences, space, medicine, the environment, and anything that makes you think "whoa that's cool." Before Vox, he was a staff correspondent at National Journal where he wrote two cover stories for the (now defunct) weekly print magazine, and reported on breaking news and politics. Intellectual humility: the importance of knowing you might be wrong. January 4, 2019. https://www.vox.com/science-and-health/2019/1/4/17989224/intellectual-humility-explained-psychology-replication]

I’ve come to appreciate what a crucial tool it is for learning, especially in an increasingly interconnected and complicated world. As technology makes it easier to lie and spread false information incredibly quickly, we need intellectually humble, curious people. I’ve also realized how difficult it is to foster intellectual humility. In my reporting on this, I’ve learned there are three main challenges on the path to humility: 1. In order for us to acquire more intellectual humility, we all, even the smartest among us, need to better appreciate our cognitive blind spots. Our minds are more imperfect and imprecise than we’d often like to admit. Our ignorance can be invisible. 2. Even when we overcome that immense challenge and figure out our errors, we need to remember we won’t necessarily be punished for saying, “I was wrong.” And we need to be braver about saying it. We need a culture that celebrates those words. 3. We’ll never achieve perfect intellectual humility. So we need to choose our convictions thoughtfully. This is all to say: Intellectual humility isn’t easy. But damn, it’s a virtue worth striving for, and failing for, in this new year. Intellectual humility, explained Intellectual humility is simply “the recognition that the things you believe in might in fact be wrong,” as Mark Leary, a social and personality psychologist at Duke University, tells me. But don’t confuse it with overall humility or bashfulness. It’s not about being a pushover; it’s not about lacking confidence, or self-esteem. The intellectually humble don’t cave every time their thoughts are challenged. Instead, it’s a method of thinking. It’s about entertaining the possibility that you may be wrong and being open to learning from the experience of others. Intellectual humility is about being actively curious about your blind spots. One illustration is in the ideal of the scientific method, where a scientist actively works against her own hypothesis, attempting to rule out any other alternative explanations for a phenomenon before settling on a conclusion. It’s about asking: What am I missing here? It doesn’t require a high IQ or a particular skill set. It does, however, require making a habit of thinking about your limits, which can be painful. “It’s a process of monitoring your own confidence,” Leary says. This idea is older than social psychology. Philosophers from the earliest days have grappled with the limits of human knowledge. Michel de Montaigne, the 16th-century French philosopher credited with inventing the essay, wrote that “the plague of man is boasting of his knowledge.” Social psychologists have learned that humility is associated with other valuable character traits: People who score higher on intellectual humility questionnaires are more open to hearing opposing views. They more readily seek out information that conflicts with their worldview. They pay more attention to evidence and have a stronger self-awareness when they answer a question incorrectly. When you ask the intellectually arrogant if they’ve heard of bogus historical events like “Hamrick’s Rebellion,” they’ll say, “Sure.” The intellectually humble are less likely to do so. Studies have found that cognitive reflection — i.e., analytic thinking — is correlated with being better able to discern fake news stories from real ones. These studies haven’t looked at intellectual humility per se, but it’s plausible there’s an overlap. Most important of all, the intellectually humble are more likely to admit it when they are wrong. When we admit we’re wrong, we can grow closer to the truth. One reason I’ve been thinking about the virtue of humility recently is because our president, Donald Trump, is one of the least humble people on the planet. It was Trump who said on the night of his nomination, “I alone can fix it,” with the “it” being our entire political system. It was Trump who once said, “I have one of the great memories of all time.” More recently, Trump told the Associated Press, “I have a natural instinct for science,” in dodging a question on climate change. A frustration I feel about Trump and the era of history he represents is that his pride and his success — he is among the most powerful people on earth — seem to be related. He exemplifies how our society rewards confidence and bluster, not truthfulness. Yet we’ve also seen some very high-profile examples lately of how overconfident leadership can be ruinous for companies. Look at what happened to Theranos, a company that promised to change the way blood samples are drawn. It was all hype, all bluster, and it collapsed. Or consider Enron’s overconfident executives, who were often hailed for their intellectual brilliance — they ran the company into the ground with risky, suspect financial decisions. The problem with arrogance is that the truth always catches up. Trump may be president and confident in his denials of climate change, but the changes to our environment will still ruin so many things in the future. Why it’s so hard to see our blind spots: “Our ignorance is invisible to us” As I’ve been reading the psychological research on intellectual humility and the character traits it correlates with, I can’t help but fume: Why can’t more people be like this? We need more intellectual humility for two reasons. One is that our culture promotes and rewards overconfidence and arrogance (think Trump and Theranos, or the advice your career counselor gave you when going into job interviews). At the same time, when we are wrong — out of ignorance or error — and realize it, our culture doesn’t make it easy to admit it. Humbling moments too easily can turn into moments of humiliation. So how can we promote intellectual humility for both of these conditions? In asking that question of researchers and scholars, I’ve learned to appreciate how hard a challenge it is to foster intellectual humility. First off, I think it’s helpful to remember how flawed the human brain can be and how prone we all are to intellectual blind spots. When you learn about how the brain actually works, how it actually perceives the world, it’s hard not to be a bit horrified, and a bit humbled. We often can’t see — or even sense — what we don’t know. It helps to realize that it’s normal and human to be wrong. It’s rare that a viral meme also provides a surprisingly deep lesson on the imperfect nature of the human mind. But believe it or not, the great “Yanny or Laurel” debate of 2018 fits the bill. For the very few of you who didn’t catch it — I hope you’re recovering nicely from that coma — here’s what happened. An audio clip (you can hear it below) says the name “Laurel” in a robotic voice. Or does it? Some people hear the clip and immediately hear “Yanny.” And both sets of people — Team Yanny and Team Laurel — are indeed hearing the same thing. Hearing, the perception of sound, ought to be a simple thing for our brains to do. That so many people can listen to the same clip and hear such different things should give us humbling pause. Hearing “Yanny” or “Laurel” in any given moment ultimately depends on a whole host of factors: the quality of the speakers you’re using, whether you have hearing loss, your expectations. Here’s the deep lesson to draw from all of this: Much as we might tell ourselves our experience of the world is the truth, our reality will always be an interpretation. Light enters our eyes, sound waves enter our ears, chemicals waft into our noses, and it’s up to our brains to make a guess about what it all is. Perceptual tricks like this (“the dress” is another one) reveal that our perceptions are not the absolute truth, that the physical phenomena of the universe are indifferent to whether our feeble sensory organs can perceive them correctly. We’re just guessing. Yet these phenomena leave us indignant: How could it be that our perception of the world isn’t the only one? That sense of indignation is called naive realism: the feeling that our perception of the world is the truth. “I think we sometimes confuse effortlessness with accuracy,” Chris Chabris, a psychological researcher who co-authored a book on the challenges of human perception, tells me. When something is so immediate and effortless to us — hearing the sound of “Yanny” — it just feels true. (Similarly, psychologists find when a lie is repeated, it’s more likely to be misremembered as being true, and for a similar reason: When you’re hearing something for the second or third time, your brain becomes faster to respond to it. And that fluency is confused with truth.) Our interpretations of reality are often arbitrary, but we’re still stubborn about them. Nonetheless, the same observations can lead to wildly different conclusions. (Here’s that same sentence in GIF form.) For every sense and every component of human judgment, there are illusions and ambiguities we interpret arbitrarily. Some are gravely serious. White people often perceive black men to be bigger, taller, and more muscular (and therefore more threatening) than they really are. That’s racial bias — but it’s also a socially constructed illusion. When we’re taught or learn to fear other people, our brains distort their potential threat. They seem more menacing, and we want to build walls around them. When we learn or are taught that other people are less than human, we’re less likely to look upon them kindly and more likely to be okay when violence is committed against them. Not only are our interpretations of the world often arbitrary, but we’re often overconfident in them. “Our ignorance is invisible to us,” David Dunning, an expert on human blind spots, says. You might recognize his name as half of the psychological phenomenon that bears his name: the Dunning-Kruger effect. That’s where people of low ability — let’s say, those who fail to understand logic puzzles — tend to unduly overestimate their abilities. Inexperience masquerades as expertise. An irony of the Dunning-Kruger effect is that so many people misinterpret it, are overconfident in their understanding of it, and get it wrong. When people talk or write about the Dunning-Kruger effect, it’s almost always in reference to other people. “The fact is this is a phenomenon that visits all of us sooner or later,” Dunning says. We’re all overconfident in our ignorance from time to time. (Perhaps related: Some 65 percent of Americans believe they’re more intelligent than average, which is wishful thinking.) Similarly, we’re overconfident in our ability to remember. Human memory is extremely malleable, prone to small changes. When we remember, we don’t wind back our minds to a certain time and relive that exact moment, yet many of us think our memories work like a videotape. Dunning hopes his work helps people understand that “not knowing the scope of your own ignorance is part of the human condition,” he says. “But the problem with it is we see it in other people, and we don’t see it in ourselves. The first rule of the Dunning-Kruger club is you don’t know you’re a member of the Dunning-Kruger club.” People are unlikely to judge you harshly for admitting you’re wrong In 2012, psychologist Will Gervais scored an honor any PhD science student would covet: a co-authored paper in the journal Science, one of the top interdisciplinary scientific journals in the world. Publishing in Science doesn’t just help a researcher rise up in academic circles; it often gets them a lot of media attention too. One of the experiments in the paper tried to see if getting people to think more rationally would make them less willing to report religious beliefs. They had people look at a picture of Rodin’s The Thinker or another statue. They thought The Thinker would nudge people to think harder, more analytically. In this more rational frame of mind, then, the participants would be less likely to endorse believing in something as faith-based and invisible as religion, and that’s what the study found. It was catnip for science journalists: one small trick to change the way we think. But it was a tiny, small-sample study, the exact type that is prone to yielding false positives. Several years later, another lab attempted to replicate the findings with a much larger sample size, and failed to find any evidence for the effect. And while Gervais knew that the original study wasn’t rigorous, he couldn’t help but feel a twinge of discomfort. “Intellectually, I could say the original data weren’t strong,” he says. “That’s very different from the human, personal reaction to it. Which is like, ‘Oh, shit, there’s going to be a published failure to replicate my most cited finding that’s gotten the most media attention.’ You start worrying about stuff like, ‘Are there going to be career repercussions? Are people going to think less of my other work and stuff I’ve done?’” Gervais’s story is familiar: Many of us fear we’ll be seen as less competent, less trustworthy, if we admit wrongness. Even when we can see our own errors — which, as outlined above, is not easy to do — we’re hesitant to admit it. But turns out this assumption is false. As Adam Fetterman, a social psychologist at the University of Texas El Paso, has found in a few studies, wrongness admission isn’t usually judged harshly. “When we do see someone admit that they are wrong, the wrongness admitter is seen as more communal, more friendly,” he says. It’s almost never the case, in his studies, “that when you admit you’re wrong, people think you are less competent.” Sure, there might be some people who will troll you for your mistakes. There might be a mob on Twitter that converges in order to shame you. Some moments of humility could be humiliating. But this fear must be vanquished if we are to become less intellectually arrogant and more intellectually humble. Humility can’t just come from within — we need environments where it can thrive But even if you’re motivated to be more intellectually humble, our culture doesn’t always reward it. The field of psychology, overall, has been reckoning with a “replication crisis” where many classic findings in the science don’t hold up under rigorous scrutiny. Incredibly influential textbook findings in psychology — like the “ego depletion” theory of willpower or the “marshmallow test” — have been bending or breaking. I’ve found it fascinating to watch the field of psychology deal with this. For some researchers, the reckoning has been personally unsettling. “I’m in a dark place,” Michael Inzlicht, a University of Toronto psychologist, wrote in a 2016 blog post after seeing the theory of ego depletion crumble before his eyes. “Have I been chasing puffs of smoke for all these years?” What I’ve learned from reporting on the “replication crisis” is that intellectual humility requires support from peers and institutions. And that environment is hard to build. “What we teach undergrads is that scientists want to prove themselves wrong,” says Simine Vazire, a psychologist and journal editor who often writes and speaks about replication issues. “But, ‘How would I know if I was wrong?’ is actually a really, really hard question to answer. It involves things like having critics yell at you and telling you that you did things wrong and reanalyze your data.” And that’s not fun. Again: Even among scientists — people who ought to question everything — intellectual humility is hard. In some cases, researchers have refused to concede their original conclusions despite the unveiling of new evidence. (One famous psychologist under fire recently told me angrily, “I will stand by that conclusion for the rest of my life, no matter what anyone says.”) Psychologists are human. When they reach a conclusion, it becomes hard to see things another way. Plus, the incentives for a successful career in science push researchers to publish as many positive findings as possible. There are two solutions — among many — to make psychological science more humble, and I think we can learn from them. One is that humility needs to be built into the standard practices of the science. And that happens through transparency. It’s becoming more commonplace for scientists to preregister — i.e., commit to — a study design before even embarking on an experiment. That way, it’s harder for them to deviate from the plan and cherry-pick results. It also makes sure all data is open and accessible to anyone who wants to conduct a reanalysis. That “sort of builds humility into the structure of the scientific enterprise,” Chabris says. “We’re not all-knowing and all-seeing and perfect at our jobs, so we put [the data] out there for other people to check out, to improve upon it, come up with new ideas from and so on.” To be more intellectually humble, we need to be more transparent about our knowledge. We need to show others what we know and what we don’t. And two, there needs to be more celebration of failure, and a culture that accepts it. That includes building safe places for people to admit they were wrong, like the Loss of Confidence Project. But it’s clear this cultural change won’t come easily. “In the end,” Rohrer says, after getting a lot of positive feedback on the project, “we ended up with just a handful of statements.” We need a balance between convictions and humility There’s a personal cost to an intellectually humble outlook. For me, at least, it’s anxiety. When I open myself up to the vastness of my own ignorance, I can’t help but feel a sudden suffocating feeling. I have just one small mind, a tiny, leaky boat upon which to go exploring knowledge in a vast and knotty sea of which I carry no clear map. Why is it that some people never seem to wrestle with those waters? That they stand on the shore, squint their eyes, and transform that sea into a puddle in their minds and then get awarded for their false certainty? “I don’t know if I can tell you that humility will get you farther than arrogance,” says Tenelle Porter, a University of California Davis psychologist who has studied intellectual humility. Of course, following humility to an extreme end isn’t enough. You don’t need to be humble about your belief that the world is round. I just think more humility, sprinkled here and there, would be quite nice. “It’s bad to think of problems like this like a Rubik’s cube: a puzzle that has a neat and satisfying solution that you can put on your desk,” says Michael Lynch, a University of Connecticut philosophy professor. Instead, it’s a problem “you can make progress at a moment in time, and make things better. And that we can do — that we can definitely do.” For a democracy to flourish, Lynch argues, we need a balance between convictions — our firmly held beliefs — and humility. We need convictions, because “an apathetic electorate is no electorate at all,” he says. And we need humility because we need to listen to one another. Those two things will always be in tension. The Trump presidency suggests there’s too much conviction and not enough humility in our current culture. “The personal question, the existential question that faces you and I and every thinking human being, is, ‘How do you maintain an open mind toward others and yet, at the same time, keep your strong moral convictions?’” Lynch says. “That’s an issue for all of us.” To be intellectually humble doesn’t mean giving up on the ideas we love and believe in. It just means we need to be thoughtful in choosing our convictions, be open to adjusting them, seek out their flaws, and never stop being curious about why we believe what we believe. Again, that’s not easy.

2024 CNDI Topicality
T – USFG / Framework › 1NC › 1nc – Clash

The impact is clash – authentic disagreement produced by the labor of the negative is the only unique feature of debate – that requires limits and ground. Their model can’t explain why we switch sides and why there has to be a winner and a loser.

Poscher, 16—director at the Institute for Staatswissenschaft and Philosophy of Law at the University of Freiburg (Ralf, “Why We Argue About the Law: An Agonistic Account of Legal Disagreement”, Metaphilosophy of Law, Tomasz Gizbert-Studnicki/Adam Dyrda/Pawel Banas (eds.), Hart Publishing, forthcoming, dml)

Hegel’s dialectical thinking powerfully exploits the idea of negation. It is a central feature of spirit and consciousness that they have the power to negate. The spirit “is this power only by looking the negative in the face and tarrying with it. This […] is the magical power that converts it into being.”102 The tarrying with the negative is part of what Hegel calls the “labour of the negative”103. In a loose reference to this Hegelian notion Gerald Postema points to yet another feature of disagreements as a necessary ingredient of the process of practical reasoning. Only if our reasoning is exposed to contrary arguments can we test its merits. We must go through the “labor of the negative” to have trust in our deliberative processes.104

This also holds where we seem to be in agreement. Agreement without exposure to disagreement can be deceptive in various ways. The first phenomenon Postema draws attention to is the group polarization effect. When a group of like‐minded people deliberates an issue, informational and reputational cascades produce more extreme views in the process of their deliberations.105 The polarization and biases that are well documented for such groups106 can be countered at least in some settings by the inclusion of dissenting voices. In these scenarios, disagreement can be a cure for dysfunctional deliberative polarization and biases.107 A second deliberative dysfunction mitigated by disagreement is superficial agreement, which can even be manipulatively used in the sense of a “presumptuous ‘We’”108. Disagreement can help to police such distortions of deliberative processes by challenging superficial agreements. Disagreements may thus signal that a deliberative process is not contaminated with dysfunctional agreements stemming from polarization or superficiality. Protecting our discourse against such contaminations is valuable even if we do not come to terms. Each of the opposing positions will profit from the catharsis it received “by looking the negative in the face and tarrying with it”.

2024 CNDI Topicality
T – USFG / Framework › 1NC › 1nc – Advocacy Skills

The impact is movements – Debate is valuable because it iteratively teaches the skills of persuasive organizing and relationality through face-to-face dialogue over what is at stake and how to solve it—this is the foundation of successful movement organizing, which outweighs and turns the aff.

Battistoni, 19—editor at Jacobin, Department of Political Science, Yale University (Alyssa, “Spadework: On political organizing,” https://nplusonemag.com/issue-34/politics/spadework/, dml)

By the time I started organizing so much that it felt like a full-time job, it was the spring of 2016, and I had plenty of company. Around the country there were high-profile efforts to organize magazines, fast-food places, and nursing homes. Erstwhile Occupiers became involved in the Bernie Sanders campaign and joined the exploding Democratic Socialists of America, whose members receive shabby business cards proclaiming them an “official socialist organizer.” Today’s organizers — not activists, thank you — make clear that they are not black bloc participants brawling with police or hippies plotting a love-in. They are inspired by a tradition of professional revolutionaries, by Lenin’s exhortation that “unless the masses are organized, the proletariat is nothing. Organized — it is everything.” Organizing, in other words, is unembarrassed about power. It recognizes that to wield it you need to persuade untold numbers of people to join a cause, and to begin organizing themselves. Organizing means being in it to win.

But how do you win? Historical materialism holds that crises of capitalism spark revolts, perhaps even revolutions, as witnessed in the eruption of Occupy and Black Lives Matter; uprisings in Spain, Greece, and Egypt; and the British student movement against tuition fees. But there’s no guide for what happens in the long aftermath, as the left has often learned the hard way.

2024 CNDI Topicality
T – USFG / Framework › 1NC › 1nc – Topic Specific Education

Our interpretation refuses binary conceptualizations of politics in favor of detailed advocacy, pragmatic coalition building, and creative lawyering.

Vats, 20—Assistant Professor of Communication and African and African Diaspora Studies and Assistant Professor of Law at Boston College (Anjali, “Decolonizing Creatorship and Remaking Personhood,” The Color of Creatorship: Intellectual Property, Race, and the Making of Americans, Conclusion, pp. 205-208, dml)

Williams offers a starting/ending point for imagining where anti-racist and anti-colonial activists should commit their energies. For instance, the racial dynamics of the conflicts between R&B and hip hop and Gaye and Pharrell may have justified advocating for neither or both parties in an amicus brief, by critiquing the divide-and-conquer ethos of the situation and the case and by critiquing the capitalist model around which victory was built. Advocating for intellectual property egalitarianism in a way that is legally and politically legible requires pushing back against accepted (intellectual) property doctrines, which conceal racial logics. The Korematsu Center’s amicus brief in Tam, for instance, performs such a task by grounding its opposition to trademarking the Slants’ band name in the racial histories of the United States, specifically those that resulted in the internment and economic disenfranchisement of Japanese Americans during World War II. In many ways, merely creating counterscripts—i.e., advocating in an amicus brief even without attendant relief—accomplishes this end. Repeatedly engaging and refusing those myths that constrain creatorship, citizenship, and personhood pushes back against whiteness as property and shifts public cultural conversations.

One easy objection here is that an amicus brief that tells a just and compelling racial story does not have legal impact. However, this conclusion is both untrue and, at least in part, irrelevant. The Color of Creatorship has demonstrated how the unspoken desires that structure the economics of intellectual property law are based not in fact but in myths and feelings. Racial scripts are about attachments to social constructions of race, property, nation, and person, not objective or rational conceptions of those terms.

2024 CNDI Topicality
T – USFG / Framework › 1NC › 1nc – Fairness Impact

3. Debate is a game and we’re both here to win – this means procedural questions like T come first. The role of the ballot is to vote for whoever does the better debating over the resolutional question.

Shively 2K – Professor of Political Science, Texas A & M (Ruth, Political Theory and Partisan Politics, p. 181-2)

The requirements thus far are primarily negative. The ambiguists must say “no” to—they must reject and limit—some ideas and actions. In what follows, we will also find that they must say “yes” to some things. In particular, they must say “yes” to the idea of rational persuasion. This means, first, that they must recognize the role of agreement in political contest, or the basic accord that is necessary to discord. The mistake that the ambiguists make here is a common one. The mistake in thinking that agreement marks the end of contest. In most cases, however, our agreements are highly imperfect. We agree on some matters but not on others, on generalities but not on specifics, on principles but not on their applications, and so on. And this kind of limited agreement is the starting condition of contest and debate. As John Courtney Murray writes: We hold certain truths; therefore we can argue about them. It seems to have been one of the corruptions of intelligence by positivism to assume that argument ends when agreement is reached. In a basic sense, the reverse is true. There can be no agreement except on the premise, and within a context, of agreement. (Murray 1960, 10) In other words, we cannot argue about something if we are not communicating: if we cannot agree on the topic and terms of argument or if we have utterly different ideas about what counts as evidence or good argument. At the very least, we must agree about what it is that is being debated before we can debate it. For instance, one cannot have an argument about euthanasia with someone who thinks euthanasia is a musical group. One cannot successfully stage a sit-in if one’s target audience simply thinks everyone is resting or if those doing the sitting have no complaints. Nor can one demonstrate resistance to a policy if no one knows that it is a policy. In other words, contest is meaningless if there is a lack of agreement or communication about what is being contested. Registers, demonstrators, and debaters must have some shared ideas about the subject and/or terms of their disagreements. The participants and the target of a sit-in must share an understanding of the complaint at hand. And a demonstrator’s audience must know what is being resisted. In short, the contesting of an idea presumes some agreement about what that idea is and how one might go about intelligibly contesting it. In other words, contestation rests on some basic agreement or harmony.∂ The point may seem trite, as surely the ambiguists would agree that basic terms must be shared before they can be resisted and problematized. In fact, they are often very candid about this seeming paradox in their approach: the paradoxical or "parasitic" need of the subversive for an order to subvert.∂ But admitting the paradox is not helpful if, as usually happens here, its implications are ignored; or if the only implication drawn is that order or harmony is an unhappy fixture of human life. For what the paradox should tell us is that some kinds of harmonies or orders are, in fact, good for resistance; and some ought to be fully supported. As such, it should counsel against the kind of careless rhetoric that lumps all orders or harmonies together as arbitrary and inhumane. Clearly some basic accord about the terms of contest is a necessary ground for all further contest. It may be that if the ambiguists wish to remain full-fledged ambiguists, they cannot admit to these implications, for to open the door to some agreements or reasons as good and some orders as helpful or necessary, is to open the door to some sort of rationalism. Perhaps they might just continue to insist that this initial condition is ironic, but that the irony should not stand in the way of the real business of subversion.∂ Yet difficulties remain. For agreement is not simply the initial condition, but the continuing ground, for contest. If we are to successfully communicate our disagreements, we cannot simply agree on basic terms and then proceed to debate without attention to further agreements. For debate and contest are forms of dialogue: that is, they are activities premised on the building of progressive agreements.∂ Imagine, for instance, that two people are having an argument about the issue of gun control. As noted earlier, in any argument, certain initial agreements will be needed just to begin the discussion. At the very least, the two discussants must agree on basic terms: for example, they must have some shared sense of what gun control is about; what is at issue in arguing about it; what facts are being contested, and so on. They must also agree—and they do so simply by entering into debate—that they will not use violence or threats in making their cases and that they are willing to listen to, and to be persuaded by, good arguments. Such agreements are simply implicit in the act of argumentation.',∂ Imagine, then, that our two discussants have the following kind of exchange:∂ Mary Cuns don't kill people; people kill people.∂ Tom: Yes, but guns make it a lot easier for people to kill one another.∂ Mary: That's not necessarily true. There are lots of other murder weapons—knives or rat poison, for instance—that may be just as handy and lethal.∂ At this point, the argument reaches an impasse. Tom has presented i claim that Mary does not accept. Thus, if the argument is to continue, Tom must either find a way to convince Mary oi this claim or he must go on to a different line of argument. Let us say that, in this case, lorn backs up his initial claim with further evidence. Perhaps he has some evidence to show that people are less apt to survive a gunshot wound than they are to survive being stabbed or poisoned. Mary then relents on this point:∂ ∂ Mary: All right, I'll grant you that gun shot wounds an? more apt to kill people. But that's exactly the reason I want lo own a gun—so I can effectively protect myself and my family.∂ Tom: Well I sympathize with that motive, but 1 don't think owning a gun is the best way to protect yourself. In fact, I've heard that people who own guns are more apt to get injured or killed them¬selves than to protect themselves against an intruder.∂ Mary: What?! I find that very difficult to believe.∂ Here, again, our discussants reach an impasse. If the argument is to go further, they must either find a way to agree on the disputed claim, or move on to another claim (if there is one). Thus, if Tom has some further evidence that Mary will find convincing, they can continue this line of reasoning; if he does not, then they must move on to something else or give up the argument completely.∂ This is the ordinary ebb and flow of debate. Argument continues .is long as there is some hope of progress in coming to agreement or as long as there are other lines of argument to be explored. But if there∂ ∂ comes a point a I which the two sides run out of new claims or cannot igree about the facts supporting claims already made, the argument is effectively over. The participants may continue to shout at one an¬other, as they often do, but there is no longer anything positive or informative that can come from their interaction. There is nothing more to be learned and nothing that either side will find convincing.∂ The point here is that in arguing—and the point holds equally for other forms of contest—we assume that it is possible to educate or persuade one another. We assume that it is possible to come to more mutual understandings of an issue and that the participants in an argument are open to this possibility. Otherwise, there is no point to the exercise; we are simply talking at or past one another.∂ At this point, the ambiguists might respond that, even if there are such rules of argument, they do not apply to the more subversive or radical activities they have in mind. Subversion is, after all, about questioning and undermining such seemingly "necessary" or universal rules of behavior.∂ But, again, the response to the ambiguist must be that the practice of questioning and undermining rules, like all other social practices, needs a certain order. The subversive needs rules to protect subversion. And when we look more closely at the rules protective of subversion, we find that they are roughly the rules of argument discussed above. In fact, the rules of argument are roughly the rules of democracy or civility: the delineation of boundaries necessary to protect speech and action from violence, manipulation and other forms of tyranny.

2024 CNDI Topicality
T – USFG / Framework › 1NC › 1nc – Interp

And, “IPR Protection” requires government action

Li ’23 [Yon; 2023; lawyer at Henan Shilin law firm; Science of Law Journal, “Analysis of the Status Quo of Intellectual Property Protection in China in the Era of Big Data,” Vol 2, No. 5]

In order to implement the specific work of intellectual property protection, the state and government must put forward the corresponding protection mechanism, which fully reflects the importance attached to intellectual property protection. Therefore, the government and judicial departments should update and improve the relevant laws in light of the actual situation. For example, from the perspective of patent law, works law, etc., the protection of intellectual property rights is clearly defined. Count the related infringements, and formulate corresponding punishment measures for these infringements, and further improve the judicial supervision system, so that the owners and beneficiaries of intellectual property rights can be protected by law [4].

2024 CNDI Topicality
T – USFG / Framework › 1NC › 1nc – Interp

The text of the resolution calls for debate on hypothetical government action

Ericson 3 (Jon M., Dean Emeritus of the College of Liberal Arts – California Polytechnic U., et al., The Debater’s Guide, Third Edition, p. 4)

The Proposition of Policy: Urging Future Action In policy propositions, each topic contains certain key elements, although they have slightly different functions from comparable elements of value-oriented propositions. 1. An agent doing the acting ---“The United States” in “The United States should adopt a policy of free trade.” Like the object of evaluation in a proposition of value, the agent is the subject of the sentence. 2. The verb should—the first part of a verb phrase that urges action. 3. An action verb to follow should in the should-verb combination. For example, should adopt here means to put a program or policy into action though governmental means. 4. A specification of directions or a limitation of the action desired. The phrase free trade, for example, gives direction and limits to the topic, which would, for example, eliminate consideration of increasing tariffs, discussing diplomatic recognition, or discussing interstate commerce. Propositions of policy deal with future action. Nothing has yet occurred. The entire debate is about whether something ought to occur. What you agree to do, then, when you accept the affirmative side in such a debate is to offer sufficient and compelling reasons for an audience to perform the future action that you propose.

2024 CNDI Counterplan
AFF › No Net-Benefit › No Climate

WTO can’t solve climate change – policies don’t prioritize it and negotiating changes takes years

Saner ‘24 [Raymond Saner is Professor Titular, University of Basel, and Co-founder and Director of the Centre for Socio-Eco-Nomic Development (CSEND), Geneva; 21 February 2024; International Institute for Sustainable Development; “WTO, Climate Change, and Sustainable Development”; https://sdg.iisd.org/commentary/guest-articles/wto-climate-change-and-sustainable-development/ -ERL]

The WTO’s existing rules and policies do not sufficiently take into account the environmental externalities of trade, which has become a significant point of contention, especially as the impacts of climate change become more pronounced and widespread. In a 2023 report, the Intergovernmental Panel on Climate Change (IPCC) highlighted a significant increase in carbon dioxide (CO2) emissions and the risk that the impacts of climate change may soon become unavoidable and irreversible. This is compounded by alarming findings from the Stockholm Environment Institute (SEI) and partners, showing governments plan to produce more than double the amount of fossil fuels in 2030 relative to 2021, which would be inconsistent with limiting warming to 1.5°C. Saner’s recent article critically examines the WTO’s current trade policies, which promise to decrease environmental risks linked to globalization. It raises concerns about the effectiveness of these policies in mitigating climate change, especially in the absence of regulatory measures. Its main findings are summarized below. Critical examination of WTO’s current framework There is a fundamental misalignment between global trade policies and the urgent need for environmental sustainability. The WTO, designed to promote liberalized trade, has often sidelined environmental considerations, thereby exacerbating the challenges of climate change. In addition, there is no coherent policy that integrates trade with the imperative of sustainable development, and the WTO’s approach has been inadequate in fostering an environment conducive to tackling global warming and achieving the SDGs. WTO member countries may need to give up some of their sovereignty to enhance the trade and environment (T&E) space and align more closely with environmental objectives. This could involve broadening WTO T&E rules to better integrate with the Paris Agreement on climate change and the 2030 Agenda for Sustainable Development. The urgency of this integration is emphasized by the fast-paced destruction caused by climate change compared to the slow progress of WTO negotiations on environmental goods and services.

2024 CNDI Counterplan
AFF › No Net-Benefit › No Spillover

No spillover – the WTO is to polarized.

Ezell and Cory ’19 (Stephen & Nigel - Associate Director at the Information Technology and Innovation Foundation, “The Way Forward for Intellectual Property Internationally,” April 25, 2019, https://itif.org/publications/2019/04/25/way-forward-intellectual-property-internationally/)

In an ideal world, WIPO and WTO would take on this type of cooperation and engagement because of their broad membership and technical expertise. But due to institutional and ideological reasons, both organizations are inherently limited in what they can do. WIPO does (and can continue to) play a constructive role in providing technical advice and capacity building, on request, to member states on intellectual property laws and other issues. While this work has largely escaped critique, the ideological opposition that has come to define the debate on intellectual property at both organizations largely stops or stymies deliberations around new IP rules and enforcement, or expanded programs of engagement and cooperation.

2024 CNDI Counterplan
AFF › No Net-Benefit › Links to Politics

Washington marginalizes the WTO – the consultation is unpopular.

Bacchus 23 James Bacchus was a founding judge and was twice the chairman of the Appellate Body of the WTO. He is a former Member of the Congress of the United States and a former international trade negotiator for the United States “The World Trade Organization: Myths versus Reality” CATO Institute. 9-26-2023 https://www.cato.org/publications/world-trade-organization-myths-versus-reality

A bipartisan majority of lawmakers today see the WTO as bent on undermining U.S. trade laws and unable to discipline China’s hybrid of communism and state capitalism. These claims are also incorrect—but still powerful: the organization has been marginalized in Washington and its rules and rulings ignored, harming the WTO and the member states facing new U.S. trade discrimination, fomenting copycat policies around the world, and in the process, harming the United States itself.

2024 CNDI Counterplan
AFF › No Solvency › WTO Says No

WTO says no to IP – they allow compulsory licensing which infringes on patent rights

Bacchus ’20 [James Bacchus, founding judge and chairman of the highest tribunal of world trade, the Appellate Body of the World Trade Organization in Geneva, Switzerland, judged more international trade disputes in the WTO than anyone else in the world, former member of congress, former international trade negotiator for the United States, Distinguished University Professor of Global Affairs and Director of the Center for Global Economic and Environmental Opportunity at the University of Central Florida; the Cato Institute; DECEMBER 16, 2020; “An Unnecessary Proposal: A WTO Waiver of Intellectual Property Rights for COVID-19 Vaccines”; https://www.cato.org/free-trade-bulletin/unnecessary-proposal-wto-waiver-intellectual-property-rights-covid-19-vaccines -ERL]

In a sign of their increasing frustration with global efforts to ensure that all people everywhere will have access to COVID-19 vaccines, several developing countries have asked other members of the World Trade Organization (WTO) to join them in a sweeping waiver of the intellectual property (IP) rights relating to those vaccines. Their waiver request raises anew the recurring debate within the WTO over the right balance between the protection of IP rights and access in poorer countries to urgently needed medicines. But the last thing the WTO needs is another debate over perceived trade obstacles to public health. Unless WTO members reach a consensus, the multilateral trading system may be further complicated by a delay like that in resolving the two-decades-old dispute between developed and developing countries over the compulsory licensing and generic distribution of HIV/AIDS drugs. A new and contentious “North-South” political struggle definitely would not be in the interest of the developed countries, the developing countries or the pharmaceutical companies, or the WTO. Certainly it would not be in the interest of the victims and potential victims of COVID-19. Background In early October 2020, India and South Africa asked the members of the WTO to waive protections in WTO rules for patents, copyrights, industrial designs, and undisclosed information (trade secrets) in relation to the “prevention, containment or treatment of COVID-19 … until widespread vaccination is in place globally, and the majority of the world’s population has developed immunity.”1 India and South Africa want to give all WTO members freedom to refuse to grant or enforce patents and other IP rights relating to COVID-19 vaccines, drugs, diagnostics, and other technologies for the duration of the pandemic. In requesting the waiver, India and South Africa have argued that “an effective response to the COVID-19 pandemic requires rapid access to affordable medical products including diagnostic kits, medical masks, other personal protective equipment and ventilators, as well as vaccines and medicines for the prevention and treatment of patients in dire need.” They have said that “as new diagnostics, therapeutics and vaccines for COVID-19 are developed, there are significant concerns, how these will be made available promptly, in sufficient quantities and at affordable prices to meet global demand.”2 Later in October, the members of the WTO failed to muster the required consensus to move forward with the proposed waiver. The European Union, the United States, the United Kingdom, and other developed countries opposed the waiver request.3 One WTO delegate, from the United Kingdom, described it as “an extreme measure to address an unproven problem.”4 A spokesperson for the European Union explained, “There is no evidence that intellectual property rights are a genuine barrier for accessibility of COVID-19-related medicines and technologies.”5 In the absence of a consensus, WTO members have decided to postpone further discussion of the proposed waiver until early 2021. Balancing IP Rights and Access to Medicines Not New to WTO This waiver controversy comes nearly two decades after the end of the long battle in the multilateral trading system over access to HIV/AIDS drugs. At the height of the HIV/AIDS crisis at the turn of the century, numerous countries, including especially those from sub-Saharan Africa, could not afford the high-priced HIV/AIDS drugs patented by pharmaceutical companies in developed countries. Having spent billions of dollars on developing the drugs, the patent holders resisted lowering their prices. The credibility of the companies, the countries that supported them, and the WTO itself were all damaged by an extended controversy over whether patent rights should take precedence over providing affordable medicines for people afflicted by a lethal disease. Article 8 of the WTO Agreement on the Trade-Related Aspects of Intellectual Property Rights (the TRIPS Agreement) provides that WTO members “may, in formulating or amending their laws and regulations, adopt measures necessary to protect public health … provided that such measures are consistent with the provisions of this Agreement.” In similar vein, Article 7 of the TRIPS Agreement provides that the “protection and enforcement of intellectual property rights” shall be “in a manner conducive to social and economic welfare.”6 It can be maintained that these two WTO IP rules are significantly capacious to include any reasonable health measures that a WTO member may take during a health emergency, such as a pandemic. Yet there was doubt among the members during the HIV/AIDS crisis about the precise reach of these provisions. As Jennifer Hillman of the Council on Foreign Relations observed, ordinarily the “inherent tension between the protection of intellectual property and the need to make and distribute affordable medicines” is “resolved through licensing, which allows a patent holder to permit others to make or trade the protected product—usually at a price and with some supervision from the patent holder to ensure control.”7 But, in public health emergencies, it may be impossible to obtain a license. In such cases, “compulsory licenses” can be issued to local manufacturers, authorizing them to make patented products or use patented processes even though they do not have the permission of the patent holders.8 After years of debate, WTO members clarified in the Doha Ministerial Declaration in November 2001 that each WTO member “has the right to grant compulsory licenses and the freedom to determine the grounds upon which such licenses are granted.”9 In August 2003, WTO members followed up on the 2001 declaration by adopting a waiver that allows poorer countries that do not have the capacity to make pharmaceutical products—and thus cannot benefit from compulsory licensing—to import cheaper generic drugs from countries where those drugs are protected by patent.10 In such a case, both the importing and exporting countries are excused from what would otherwise be their obligations under the TRIPS Agreement. This waiver was transformed into an amendment in the WTO IP rules in 2017.11 Compulsory licensing of medicines is not popular with private drug manufacturers because it is a derogation from the customary workings of market-based capitalism. However, as these actions by WTO members in 2001, 2003, and 2017 illustrate, compulsory licensing is not a derogation from the balance struck by the members of the WTO between protecting IP rights and ensuring access to essential medicines. Rather, it is a crucial part of that balance. The balance struck in the WTO treaty includes the option of compulsory licensing during health emergencies. Does a Novel Virus Present Novel Issues? Now comes the COVID-19 crisis. In the debate over the proposed COVID-19 waiver, mostly we have heard the usual arguments, all of them reminiscent of the HIV/AIDS debate. The pharmaceutical companies in the global vaccine chase have been quick to express their oppositionto the proposed waiver of IP rights for the pandemic’s duration. They have warned that allowing their COVID-19 vaccines to be copied without their permission through recourse to compulsory licensing “would undermine innovation and raise the risk of unsafe viruses.”12

2024 CNDI Counterplan
AFF › No Solvency › WTO Says No

WTO says no

Peter K. Yu 11, Kern Family Chair in Intellectual Property Law & Director, Intellectual Property Law Center, Drake University Law School; Wenlan Scholar Chair Professor, Zhongnan University of Economics and Law; Visiting Professor, Centre for International Intellectual Property Studies, University of Strasbourg. Six Secret (and Now Open) Fears of ACTA, 64 SMU L. Rev. 975 (2011). July. https://scholarship.law.tamu.edu/cgi/viewcontent.cgi?article=1437&context=facscholar //pipk

Although the Doha Round began as a development round and has subsequently led to greater accommodation of needs, interests, and conditions in less-developed countries, developed countries have actively pushed for heightened intellectual property protection and enforcement in the WTO. For example, during the TRIPS Council meeting in June 2006, the European Union called for an "in-depth discussion" of enforcement issues. 84 Together with two earlier proposals,85 the EU effort to push for greater discussion of intellectual property enforcement in the TRIPS Council represented the first attempts by a WTO member to revive such discussion since 1997.86 That effort also reflected the directions of the new EU IPR Enforcement Strategy,87 which the European Commission adopted in November 2004.88

In response to the EU efforts, leading developing countries such as Argentina, Brazil, China, and India registered their strong opposition, citing distractions from WTO trade talks, which they claimed were "supposed to focus on development" in the Doha Round.89 As noted by a Chinese official, the TRIPS Council is "not the right time or right place" to discuss intellectual property enforcement. 90 In China's view, those issues should be handled by the DSB instead.9'